434 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. ) Pages 434 - 651 6 Forsyth and William D. ) 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 16 Tuesday, March 9, 1999 at 9:15 a.m. at Honolulu, 17 Hawaii. 18 BEFORE: THE HONORABLE ALAN C. KAY 19 United States District Judge District of Hawaii 20 21 REPORTED BY: TINA M. STUHR, RPR, CSR #360 Notary Public, State of Hawaii 22 PACIFIC REPORTING SERVICES UNLIMITED, INC. 23 733 Bishop Street Suite 2090, Makai Tower 24 Honolulu, Hawaii 96813 (808) 524-PRSU 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 435 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 ROY K.S. CHANG, ESQ. 9 Shim & Chang 333 Queen Street 10 Suite 900 Honolulu, Hawaii 96813 11 For Defendant: ANDREW SEE, ESQ. 12 MICHELLE R. MANGRUM, ESQ. Shook, Hardy & Bacon L.L.P. 13 One Kansas City Place 1200 Main Street 14 Kansas City, Missouri 64105 15 EDMUND BURKE, ESQ. Burke Sakai McPheeters Bordner 16 Iwanaga & Estes 737 Bishop Street 17 Suite 3100 - Mauka Tower Honolulu, Hawaii 96813 18 Also Present: Catherine Itai 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 436 1 I N D E X 2 WITNESSES ON BEHALF OF PLAINTIFFS: PAGE 3 WILLIAM DAVID FORSYTH, III 4 Cross-Examination Continued by Mr. See 437 Redirect Examination by Mr. Vickery 493 5 EDWIN L. NELSON 6 Direct Examination by Mr. Vickery 520 7 Cross-Examination by Mr. Burke 525 8 DAVID CAPELOUTO 9 Direct Examination by Mr. Vickery 528 Cross-Examination by Mr. Burke 536 10 Redirect Examination by Mr. Vickery 547 11 WILLIAM KLEIN 12 Direct Examination by Mr. Vickery 548 Cross-Examination by Ms. Mangrum 558 13 Redirect Examination by Mr. Vickery 566 14 DAUBERT HEARING 15 CANDANCE PERT, Ph.D. 16 Direct Examination by Mr. Vickery 577 Cross-Examination by Mr. See 584 17 Redirect Examination by Mr. Vickery 591 18 DAVID HEALY, M.D., Ph.D. 19 Direct Examination by Mr. Vickery 601 Cross-Examination by Mr. See 617 20 EXHIBITS ADMITTED INTO EVIDENCE: PAGE 21 Exhibit 1035 - Calendar from Forsyths' 472 22 Home 23 Exhibit 1141 - Letter to Judy Hawkes 508 from June Forsyth dated January 6, 1993 24 Exhibit 167 - Videotape 513 25 Exhibit 168 - Photographs 513 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 437 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 morning, Your Honor. Andy 4 Vickery, Karen Barth, and Roy Chang for the Forsyths. 5 We're ready to continue with the trial. 6 THE COURT: Good morning. 7 MR. SEE: Good morning, Your Honor. Andy See, 8 Michelle Mangrum, and Edmund Burke for Eli Lilly and 9 Company, also ready. 10 THE COURT: Good morning. Good morning, ladies 11 and gentlemen of the jury. Please proceed. 12 Can we have a witness up here? 13 And you're reminded you're still under oath, 14 Mr. Forsyth. 15 MR. SEE: Your Honor, if I may approach and put 16 the witness' deposition up next to him? 17 THE COURT: You may. 18 CROSS-EXAMINATION (Continued) 19 BY MR. SEE: 20 Q. Mr. Forsyth, good morning. 21 A. Good morning. 22 Q. When we left court on Friday, as I was knocking 23 things down, I was about to ask you about some 24 writings of your mother's that is in evidence. Can 25 you see that, sir? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 438 1 A. Yes. I can't see the ones on the left. Oh, I 2 can see the blowup part. 3 Q. Yes, the blowup part is what I'm going to ask 4 you about. Now, these are in evidence as part of 5 Exhibit 172. And my question for you, Mr. Forsyth, is 6 when your mother wrote, "Never did or now wants to do 7 anything I suggest," Did you ever observe in your 8 contact with your parents that your father acted that 9 way towards your mother; that is, he never did or 10 wants to do anything that she suggested? 11 MR. VICKERY: Objection, Your Honor. My only 12 objection is unless these entries are limited in time, 13 there's no date on this particular page, so unless 14 Mr. See qualifies the timing of his question, it 15 doesn't put it in context. 16 THE COURT: Well, let's see if we can establish 17 a time. 18 Q (By Mr. See) Mr. Forsyth, do you know when 19 your mother's notes were written? 20 A. I do not. 21 MR. SEE: Your Honor, the exhibit is in 22 evidence as Mrs. Forsyth's notes. 23 THE COURT: Well, isn't there a time indicated? 24 MR. SEE: In this particular notebook, I'm not 25 certain that there is a particular time indicated. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 439 1 THE COURT: Well, we don't know if it is 1980 2 or 1990 or what? 3 MR. SEE: Well -- 4 THE COURT: You can't establish a range? 5 MR. SEE: Well, Your Honor, what I can 6 establish is if you look at -- if you look at the 7 very -- 8 THE COURT: I can't read that. 9 MR. SEE: Yes, sir, I beg your pardon. 10 THE COURT: That's 172? 11 MR. SEE: Yes, sir. 12 MR. VICKERY: I believe I can help you, Your 13 Honor. I think you will find these in the 1991 14 journal. 15 THE COURT: Well, why don't you help Mr. See? 16 MR. VICKERY: I've looked at all of Mr. See's 17 logs, Your Honor, and that's the reason I interrupted 18 him with this objection. I wanted that clear. 19 THE COURT: Are you willing to acknowledge it's 20 1991? 21 MR. SEE: Subject to me going back and actually 22 looking at it because I haven't seen the exact date, 23 the events that are described are the events that took 24 place when they lived in Maui. 25 THE COURT: So it would have to be 1990 or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 440 1 later? 2 MR. SEE: Or later. 3 THE COURT: So let's proceed on that basis 4 then. 5 MR. SEE: Very well. 6 Q. If you recall, Mr. Forsyth, my question was, 7 during the time that your parents lived on Maui, did 8 you observe in their relationship that your father 9 never did or now wants to do anything that your mother 10 suggested? 11 A. No. I saw him do things she did want to do. 12 Q. Down about the middle of the page, your mother 13 has written, "When we go to any social events, the 14 minute we arrive, he disconnects and leaves me." Did 15 you observe that behavior in your parents 16 relationship? Again, during the time that they lived 17 on Maui. 18 A. I wasn't always present at social events where 19 they would attend, but where I would see them, like at 20 church or family barbecues or even group barbecues, I 21 didn't observe that. 22 Q. The next entry down your mother has written, 23 "Won't take walks with me on the beach and yet when 24 friends come to visit, he walks with them while I'm 25 cooking." Again, while your parents were living on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 441 1 Maui, did you observe that aspect of your parents 2 relationship? 3 A. I observed them walk on the beach many times 4 with my own eyes, together. 5 Q. And the last entry on this blowup that your 6 mother has written, "He disconnects at church. He 7 doesn't want to stand with me or have me as part of 8 any discussions he's having with someone else. When I 9 talk, he glares at me or puts his hand up. He never 10 does this to anyone else." 11 Did you observe this kind of behavior in your 12 parents relationship during the time they lived on 13 Maui? 14 A. No, I didn't. 15 Q. And also as part of the same exhibit, another 16 blowup of your mother's notes. The first entry on 17 this one, your mother has written, "The last few years 18 any idea I have or suggestion I make, Bill says, no, 19 and leaves. He won't even discuss things." Did you 20 observe that aspect in your parents relationship 21 during the time that they lived on Maui? 22 A. I didn't observe that. 23 Q. During the time that your parents lived on 24 Maui, Mr. Forsyth, did you observe that your mother's 25 role as the wife, in the husband-wife relationship, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 442 1 was changing? 2 A. Well, they lived in the Mainland for so many 3 years while I was on Maui, I didn't know their role 4 other than when I was younger living at home. 5 Q. During the time that your parents were on Maui, 6 did you observe your mother change her role from being 7 a more traditional wife, letting the husband make all 8 the decisions, to becoming a more assertive, 9 aggressive person herself? 10 A. I did not notice that. 11 Q. And again, during the time that your parents 12 were on Maui, did you ever observe them have any 13 conflict over your mother's role in the marriage 14 changing; that is, her becoming a more assertive 15 person, wanting to make decisions herself and so on? 16 A. I didn't observe a conflict like that. 17 Q. Now, you were aware that your parents separated 18 for a time in 1991? 19 A. Yes. 20 Q. Your father travelled to the Mainland leaving 21 your mother on Maui? 22 A. Yes. 23 Q. And during that time, you had a chance to talk 24 with your dad on the phone about what was going on in 25 their lives? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 443 1 A. I did. 2 Q. And did he tell you that since his retirement, 3 he had had a problem being at home, and in particular, 4 with his communication with your mother? 5 A. I can't remember exactly what he told me, but 6 he said something like it was harder to communicate. 7 Q. And did he tell you that one of the reasons 8 that was was because he and your mother were now 9 spending a lot more time actually together because he 10 was retired and not working? 11 A. I don't remember him giving that as a reason. 12 Q. Now, your father eventually came back from the 13 Mainland and your parents reconciled after that 14 separation in 1991? 15 A. Yes. 16 Q. Now, moving ahead up to 1992. Your parents 17 again separated for a time during the summer and fall 18 of that year; isn't that right, sir? 19 A. Yes. 20 Q. And when your father -- again, your father left 21 Maui and travelled to the Mainland leaving your mother 22 and the family home? 23 A. That's correct. 24 Q. Now, when your father left to go to Los Angeles 25 in 1992, did he tell you he was leaving? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 444 1 A. I can't recall if he did. 2 Q. Would you look at Page 42 of the big volume of 3 your deposition? 4 MR. VICKERY: Which page is that, Counsel? 5 MR. SEE: Page 42, I'm sorry. It's in the 6 first deposition. 7 Q. Do you have 42 there? 8 A. Yes. 9 Q. Now, I'm going to start at Line 3 and ask if 10 these were questions and answers that took place 11 during your deposition. 12 "QUESTION: You knew your dad was going to Los 13 Angeles? 14 "ANSWER: No. 15 "QUESTION: You didn't? Where did you think he 16 was going? 17 "ANSWER: I didn't know he was going anywhere. 18 "QUESTION: So during the summer of 1992 when 19 your father came to Los Angeles, he did not tell you 20 that he was doing that? 21 "ANSWER: No, he didn't." 22 Were those the questions and answers that -- 23 MR. VICKERY: Excuse me, Mr. See. Your Honor, 24 under Rule 106, I would ask for completeness and 25 fairness that the following, the next question and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 445 1 answer be read. 2 THE COURT: Very well. 3 Q (By Mr. See) "QUESTION: So the fact that 4 your father had gone to live for a time in Los Angeles 5 came as a surprise to you? 6 "ANSWER: Not really. He went to Los Angeles 7 fairly regularly." 8 Were those the questions and answers at your 9 deposition? 10 A. I haven't read my deposition since it happened 11 over three years ago, but I believe that would be 12 true. 13 Q. Now, the point is, and this is what I want to 14 ask you, at the time your father again left your 15 mother, they separated in 1992, your father didn't 16 tell you that he was separating from your mother and 17 going to live separately in Los Angeles; isn't that 18 right? 19 A. I can't remember. I did have talks with my dad 20 after he came back the first time to see how things 21 were going. So, I honestly can't remember. 22 Q. Now, at the time, this is the summer of '92, 23 the time your father separated from your mother again, 24 you had thought your parents were getting along pretty 25 well? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 446 1 A. I thought they were from what I can remember at 2 this time. 3 Q. In the three or four years prior to that 4 separation in 1992, it was also your impression that 5 your parents were getting along pretty well in their 6 marital relationship; isn't that right? 7 A. Are you talking about when they lived on Maui 8 or on the Mainland? 9 Q. Well, I'm talking about in the three or four 10 years prior to 1992, so that would include, maybe, a 11 couple years on the Mainland and a couple years on 12 Maui. 13 A. To the best of my knowledge things were going 14 okay, although the retirement, you know, changes 15 things a little bit. 16 Q. Had you been aware at all that during the time 17 your father and mother lived on Maui and during the 18 two separations, that your father was considering 19 divorcing your mother? 20 A. No. 21 Q. Your mother, especially in the last several 22 years of her life, was a very devout born-again 23 Christian; isn't that right, sir? 24 A. Yes, that's correct. 25 Q. She was a member of and attended the same PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 447 1 church that you did? 2 A. Yes. 3 Q. And that's the Kumalani Chapel on Maui? 4 A. Correct. 5 Q. In your mother's religious life, she made a 6 practice of reading Christian books and listening to 7 Christian radio and watching Christian videotapes and 8 that sort of thing. Did you observe that around their 9 house? 10 A. I hope she did. I wasn't over there all the 11 time, but I believe she would be involved because she 12 took her faith very seriously. 13 Q. In fact, her strong and sincere religious 14 belief was a very important part of her life? 15 A. Yes, it was very important. 16 Q. Now, isn't it the case that during the year or 17 so, year or two before his death, that your father was 18 uncomfortable with the extent of your mother's 19 religious activity? 20 A. My father was a regular involved church 21 attender with the whole family, so I don't know why he 22 would be uncomfortable. And I didn't notice him being 23 uncomfortable. 24 Q. Could I ask you to turn to Page 60 of the first 25 volume of your deposition? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 448 1 A. Is that the big one? 2 Q. Yes, sir, it is. And I want to ask you 3 starting at Line 19 on Page 60, if you have it there, 4 were these questions asked and did you give these 5 answers: 6 "QUESTION: Did your father ever make any 7 comments to you that he thought your mother was too 8 involved in church and religious activities? 9 "ANSWER: Yes. 10 "QUESTION: What did he say about that? 11 "ANSWER: Sometimes it made him uncomfortable 12 because she may be listening to a Christian tape or 13 watching a Christian show on TV and that was more than 14 he was used to, the amount. You know, he would go to 15 the church, to the men's -- the Christian 16 businessmen's breakfast with me, but I think her 17 involvement was more than his, so it wasn't always 18 comfortable for him. 19 "QUESTION: Your testimony is that the amount 20 of religious activity was more than he would have 21 preferred? 22 "ANSWER: The amount for her was more than the 23 amount he showed." 24 Were those questions and answers that you gave 25 at your deposition, sir? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 449 1 A. Yes. 2 Q. Mr. Forsyth, did you have discussions yourself 3 with your father about him becoming more involved in 4 the Christian-oriented lifestyle that your mother was 5 following? 6 A. I think we talked about our faiths and our 7 involvement with God. 8 Q. And you shared your faith, your own faith with 9 your father? 10 A. He knew about my faith for many years. 11 Q. And did you also observe that your mother had 12 conversations with your father about him being more 13 accepting of the Christian lifestyle? 14 A. I don't know if -- I don't know. I don't 15 remember observing a particular discussion about that 16 topic. 17 Q. Now, wasn't it the case, sir, that your father 18 was resistant to changing his attitude about being 19 completely involved in the born-again Christian 20 lifestyle? 21 A. I think he was involved as he felt comfortable. 22 He seemed pretty involved to me. 23 Q. Let me ask you to turn to the smaller volume of 24 your deposition, the second volume, Page 86. 25 A. I'm sorry, I didn't hear the page. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 450 1 Q. Page 86. If I could start and I'll refer you 2 to Line 1 of Page 86 and ask if these questions and 3 answers were given: 4 "QUESTION: In your father's records with 5 Dr. Roberts, there is some mention that your father, 6 at some point in his life, felt uncomfortable about 7 the level of religious belief and activity of the rest 8 of the family; that is, those apart from himself, and 9 what I'm trying to figure out is, did your family, 10 that is, you, your mother, did you talk with your dad 11 to kind of try to bring him around to the way you all 12 believed that you knew to be the truth? 13 "ANSWER: I think he felt uncomfortable because 14 we were living that and it was a big part of our life, 15 and I guess -- I believe his discomfort was that he 16 realized he could either move in that direction and 17 possibly find the peace there that he eventually did, 18 but that it was a resistance thing. 19 I think the discomfort was more of his 20 resistance than anybody pushing anything on him and 21 that's evidenced by the things he said after his 22 experience of his own." 23 Was that question asked and did you give that 24 answer? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 451 1 Q. Mr. Forsyth, do you know whether your father 2 had made it a condition of his returning to Maui from 3 Los Angeles after the separation in '92, that he and 4 your mother agree not to be so involved in the church? 5 A. I don't know about that, if it happened. 6 Q. Now, Mr. Forsyth, you came to know at some 7 point that your father had had a problem with 8 alcoholism earlier on in his life? 9 A. Yes, as a child. 10 Q. But he had given it up and, in fact, had not 11 had a drink for more than 25 years? 12 A. Yes. 13 Q. Now, I want to refer you specifically to the 14 time after your father came back to Maui from the 15 Mainland in 1992. You knew your father was having a 16 problem suffering with anxiety, correct, at that time? 17 A. I don't think I knew at that time. I'm not 18 sure of the time line. 19 Q. You came to know that he was having a problem 20 with anxiety? 21 A. I'm not sure, you know, if that was the word I 22 knew about or -- I don't really remember. 23 Q. The question I'm getting at is, did you have 24 conversations with your father about the fact that he 25 was suffering from anxiety and had gone to one of his PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 452 1 doctors on the Mainland and gotten a prescription for 2 a drug called Xanax? 3 A. I did learn about that eventually. 4 Q. And did your dad tell you that he was somewhat 5 of an anxious person? 6 A. I think we talked about that, yes. 7 Q. And did he also tell you that in his 8 retirement, he related his not working and not having 9 anything to do with becoming more anxious? 10 A. He just -- I don't know if he was more anxious. 11 He just liked to be busy. 12 Q. Now, you did learn that your father was 13 prescribed a tranquilizer called Xanax to help him 14 with his anxiety? 15 A. Yes. 16 Q. But your father learned that Xanax could be a 17 habit-forming drug; isn't that right? 18 A. He did, at some point, tell me that. 19 Q. And that was after he came back to Maui from 20 the Mainland in December of '92? 21 A. That was right before he went in the hospital. 22 Q. And his worry was that he might become 23 dependent on Xanax, isn't that right, based upon what 24 he told you? 25 A. He just didn't want to rely on drugs if he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 453 1 didn't have to. 2 Q. And you talked to him, didn't you, about the 3 fact that he had this history of having been an 4 alcoholic, and he was particularly concerned not to 5 become dependent upon Xanax? 6 A. I can't recall if we had that conversation. 7 Q. Well, your father did tell you that he was 8 worried about taking Xanax? 9 A. He told me he would like to get off all of 10 these medications, if possible, as soon as possible. 11 Q. My specific question is, did your father tell 12 you that he was specifically concerned about taking 13 Xanax because it could be habit forming and he just 14 didn't want to become dependent or addicted to Xanax? 15 A. I think around the time he asked me to submit 16 him to the hospital we had a discussion about that. I 17 think part of the reason he wanted to be in the 18 hospital was to try to not be on that drug. 19 Q. Now, I want to ask you some questions about 20 your father's condition and what you noticed about 21 your father from the time he came back to Maui in 22 December of 1992 up through February 22nd of '93. 23 That's the first day that he was prescribed Prozac. 24 So that's the period I have in mind. Will you focus 25 on that period for these questions? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 454 1 A. Yes. 2 Q. Now, after he came back to Maui and during the 3 January and early February '93 period, you did notice 4 that your father was depressed; that is, he had a low 5 mood, he was sad? 6 A. I noticed he wasn't as active as he used to be. 7 Q. Did you notice that your father, during the 8 same time period, became withdrawn; that is, he 9 stopped being his usual outgoing self and stayed at 10 home? 11 A. He was less outgoing, but I still saw him out 12 taking walks. You know, he wasn't at home under the 13 covers in bed or anything. 14 Q. Well, let me ask you that specifically. Did 15 you know that your father, in fact, did stay at home 16 in bed with the covers pulled up even during the 17 daytime? Again, during the January and early 18 February '93 time period. 19 A. On my visits to their home, I never witnessed 20 my dad in the daytime in bed under the covers. 21 Q. Again, during the January to early February '93 22 time period, did you note that your father seemed to 23 be struggling mentally; that is, struggling with his 24 thinking? 25 A. He just didn't seem as outgoing or energetic as PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 455 1 he normally was. 2 Q. Could I ask you to refer to the big volume of 3 your deposition at Page 183? Do you have that page? 4 A. 182? 5 Q. No, 183, I'm sorry. I'm going to start at Line 6 17, and I'm going to ask if this question was asked 7 and you gave this answer: 8 "QUESTION: What part of that paragraph applied 9 to your father prior to February 22, 1993? 10 "ANSWER: Mentally he was struggling prior to 11 February 22." 12 Was that the answer you gave to that question? 13 A. I believe it is. 14 Q. Now, I want to specifically ask you the 15 question, even starting at Christmastime of 1992 and 16 continuing on through January and through February, 17 your dad started to have a depressed mood; that is, he 18 acted sad and he acted down; isn't that right? 19 A. At Christmastime, we had a great family time 20 together, but he wasn't quite as excited or jumping 21 around with the kids. So I noticed, you know, he just 22 wasn't the energetic, quite as outgoing person. 23 Q. So you didn't notice any depression or 24 depressed mood or that he was sad or blue at 25 Christmastime of '92? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 456 1 A. Well, I noticed that he wasn't his usual up 2 person, so there was a lowering, yes. It didn't alarm 3 me because he was there and he was with the family and 4 we still had a great time, but looking back and 5 remembering so many Christmassy together, he wasn't 6 quite as up. 7 Q. Let me ask you to turn to your deposition, the 8 big one, on Page 71. 9 A. Seventy-one of the big one? 10 Q. Yeah, the big one. 71, please. 11 THE COURT: Which one is this now? 12 MR. SEE: It's the first volume, Your Honor. 13 THE COURT: The thick or the thin? 14 MR. SEE: The thick, I beg your pardon. 15 Q. On Page 71 at Line 9, was this the question and 16 answer: 17 "QUESTION: Before February 22 of 1992, did you 18 observe your father to have a depressed mood; that is, 19 was he blue, sad, that sort of thing? 20 "ANSWER: Yes." 21 Did you give that answer to that question? 22 A. Yes, I did. 23 Q. Now, what I want to ask you now, Mr. Forsyth, 24 is, this depressed mood in your father starting around 25 Christmastime of 1992, that was very different from PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 457 1 his normal personality, wasn't it? 2 A. It wasn't alarmingly different for me. I mean, 3 I noticed it, but it wasn't something that scared me 4 at the time. 5 Q. Could I ask you to turn back to the big volume 6 again. Again, on Page 71. I beg your pardon, it's 72 7 right at the top on Line 1. 8 MR. VICKERY: Your Honor, under the rule of 9 fairness and completeness, I would ask that the 10 question and answer immediately before that be offered 11 at the same time. 12 THE COURT: Very well. 13 Q (By Mr. See) Okay. Now we're at Page 71 at 14 Line 21, Mr. Forsyth. Do you have that? 15 A. Yes, I do. 16 Q. Okay. That question is this: 17 "During that time, Christmas '92 up to 18 February 22nd of '93, did that depressed mood seem to 19 get worse in your dad? 20 "ANSWER: I didn't notice personally a huge 21 change. I was just surprised at him being depressed 22 at all. It was so out of character. 23 "QUESTION: The depressed mood that you 24 observed was very different than your father's normal 25 personality? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 458 1 "ANSWER: Yes." 2 Were those questions asked and did you give 3 that answer? 4 A. Yes, I did. 5 Q. Now, again, beginning at Christmas of '92 and 6 going on into January of '93, did you also notice that 7 your father became withdrawn; that is, he stayed at 8 home, did not go out with people and mix like he used 9 to? 10 A. I noticed he mixed a little bit less. He 11 wasn't at my house as often, although he would visit. 12 It wasn't as regular. 13 Q. And, again, during the same time period from 14 Christmas of '92 into January of '93, did you notice 15 that your father was simply not the confident person 16 that he used to be? 17 A. He was a lot quieter. I don't know about 18 confidence. I don't recall. I noticed that 19 definitely near the end, during the hospital 20 submitting time. 21 Q. Let me refer you to Page 76 of the big volume 22 of your deposition. At Line 19 -- I'm sorry, Line 16. 23 And let me ask you if you got this question and gave 24 this answer -- 25 MR. VICKERY: Excuse me, Mr. See. Again, Your PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 459 1 Honor, for completeness and fairness, I'd ask the 2 question before it -- the one question immediately 3 before it be asked. 4 MR. SEE: That will be fine, Judge. 5 Q. Starting then at Line 8, Mr. Forsyth: 6 "QUESTION: From Christmas of '92 to 7 February 22 of '93, looking at your father's overall 8 condition, everything taken into account, was his 9 condition going downhill during that time period or 10 was it staying about the same? 11 "ANSWER: I did not notice any major change in 12 that time period described up or down. All I noticed 13 was that my dad was not himself, as we discussed, 14 quiet. Not as visible as he usually was. 15 "QUESTION: During that time period that we're 16 talking about, did you observe your father to have a 17 lack of confidence? 18 "ANSWER: I did not observe that. 19 "QUESTION: Did you hear that from any source? 20 "ANSWER: No. When I say I didn't observe it, 21 what I'm saying, again, is I didn't talk or spend that 22 much time with him, therefore, there was no experience 23 to get that from. I obviously -- he was not the 24 confident person that he was, that was driving around, 25 visiting friends, going to Rotary. I don't think he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 460 1 made every meeting." 2 Were you asked those questions and gave those 3 answers? 4 A. Yes. 5 Q. Now, again, Mr. Forsyth, talking about the same 6 time period from about Christmas of '92 into January 7 of '93 and early February, you learned that your 8 father was having feelings of low self-worth; isn't 9 that so? 10 A. I don't remember. 11 Q. Let me refer you to Page 73 of the big volume 12 of your deposition at Line 12. Do you have that, sir? 13 A. Page 73? 14 Q. Yes, sir. 15 A. Yes. 16 Q. At Line 12 were these questions asked and did 17 you give these answers: 18 "QUESTION: Again, during the period up to 19 February 22, 1992, did you ever learn that your father 20 had feelings of low self-worth? 21 "ANSWER: Prior to February 22nd? 22 "QUESTION: Yes. 23 "ANSWER: Between Christmas of '92 and 24 February 22 of '93 I did hear my father say that he 25 had feelings of low self-worth." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 461 1 Did you -- 2 MR. VICKERY: Excuse me, Mr. See. I'm sorry, 3 Your Honor, the very next question puts that in 4 context. 5 MR. SEE: I'll be happy to read it, Your Honor. 6 THE COURT: Very well. 7 Q (By Mr. See) And then was this question asked 8 and did you give this answer: 9 "QUESTION: What were the circumstances of him 10 saying that? 11 "ANSWER: I may not -- he may not have told me 12 directly, but I -- from memory, I believe my mom who 13 was spending the most time with him during that period 14 relayed to the family that while he was in the 15 depression that he felt lower self-esteem than he felt 16 in his life before. I cannot recall him directly 17 telling me that." 18 Were you asked those questions and did you give 19 those answers? 20 A. Yes, I did. 21 Q. And again, during the -- from Christmas of '92 22 into January and early February of '93, did you have 23 conversations with your father when the subject of his 24 feeling guilt came up? 25 A. I don't know. I can't remember. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 462 1 Q. Let me refer you to Page 79 of the large volume 2 of your deposition at Line 18. 3 THE COURT: I'm sorry, what page was that? 4 MR. SEE: Page 79. 5 Q. Do you have it, Mr. Forsyth? 6 A. Page 79? 7 Q. Yes. 8 A. Yes, I do. 9 Q. At Line 18 were you asked this question and 10 gave this answer: 11 "QUESTION: This is a conversation that took 12 place between Christmas '92 and February 22, '93? 13 "ANSWER: Yes. 14 "QUESTION: And your father said to you, 'When 15 you are depressed, you have feelings come up of 16 guilt'? 17 "ANSWER: Yes. 18 "QUESTION: And he was having feelings of that? 19 "ANSWER: Yes." 20 Did you give answers to those questions? 21 A. Yes, I did. 22 Q. And again, during the same time period, your 23 father told you how dark and down you feel when you 24 are in a depression; isn't that right? 25 A. I don't remember that discussion either. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 463 1 Q. If you could go back to Page 80 of the same big 2 volume of your deposition. Starting at Line 1. 3 "QUESTION: What else did your father tell you 4 in that conversation about how it feels to be 5 depressed? 6 "ANSWER: Just how dark and down you are." 7 Did you give that answer, sir? 8 A. Yes. 9 MR. VICKERY: Excuse me, Mr. See. Again, Your 10 Honor, I must ask that it be put in context. It goes 11 down through Line 15, that section. 12 THE COURT: Very well. 13 Q (By Mr. See) The next question is at Line 4: 14 "Did he tell you that he was dark and down? 15 "ANSWER: He felt dark and down at times, not 16 continually, but he would have those times." 17 MR. SEE: The rest that Mr. Vickery refers to 18 does not refer to that subject, Your Honor. 19 THE COURT: Mr. Vickery. 20 MR. VICKERY: Your Honor, I think it's a 21 natural follow along. It was the question Mr. See 22 asked him immediately as a follow-up to that, the next 23 two questions and answers, and I think they germane -- 24 THE COURT: I think you should ask it, Mr. See. 25 MR. SEE: Very good. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 464 1 Q. And the next question is, Mr. Forsyth, this is 2 at Line 11: 3 "Did he, during the same time frame, say 4 anything to you about thinking about death? 5 "ANSWER: No. 6 "QUESTION: Or thinking about the subject of 7 suicide? 8 "ANSWER: Never." 9 Did you have those questions asked and give 10 those answers? 11 A. Yes. 12 Q. Again, talking about the same time period, 13 Christmas '92 through January and early February of 14 '93, did you notice that your father was tired all the 15 time? 16 A. Not all the time, just less -- just less 17 active, as I said before. 18 THE COURT: I think he's already testified to 19 that, hasn't he? 20 MR. SEE: All right. 21 Q. Did you also notice during the same time period 22 that your father had lost his motivation to get out 23 and do things? 24 A. He was out just not as much as he was before. 25 Q. And during the time that we're talking about, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 465 1 Christmas '92 through January and early February, did 2 you note your father to be having despairing feelings; 3 that is, feelings of despair? 4 A. I didn't see him as much, so I didn't notice 5 those that he may have had. I don't know. 6 Q. Let me refer you to Page 180 of the large 7 volume of your deposition at Line 19. The question is 8 and did you get these questions and give these 9 answers: 10 "QUESTION: The fifth paragraph on the first 11 page of Susan Forsyth's Deposition Exhibit No. 2, 12 relates that your father became tired, unmotivated, 13 and had despairing feelings. That's a part of a 14 letter that you co-authored with your sister? 15 "ANSWER: Correct. Yes. 16 "QUESTION: And did that description apply to 17 your father prior to the time he was taking Prozac? 18 "ANSWER: Yes." 19 Did you get those questions and give those 20 answers? 21 A. Yes, I did. 22 Q. Mr. Forsyth, as time wore on in January of '93 23 into February of '93, did you know that your father 24 began to feel that he could not stay at home by 25 himself? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 466 1 A. I don't know if he felt that way. 2 Q. Now, let's move to the middle of February and 3 specifically -- well, around the middle of February. 4 Do you recall an episode that you had with your father 5 that occurred outside of his home around the middle of 6 February when you were there looking at a power mower? 7 A. Not -- I don't remember exactly what. I was 8 over there a lot. I mowed some of the lots nearby for 9 them. 10 Q. In around the middle of February did you see -- 11 while you were over at your parents' home, did you 12 notice your father back his car down the driveway at 13 his home, stopped, got out of his car, and came over 14 to you. Do you recall that incident? 15 A. I remember a discussion of some kind in the 16 front of his house. 17 Q. And he came up to you and he did not appear as 18 if he were like his normal self; isn't that right? 19 A. I remember I felt -- I remember I felt 20 something, why did he stop and get out of the car. 21 Q. And you said to him, "How are you doing?" And 22 he didn't answer you. He just stood there and was 23 quiet. 24 A. That part I don't remember. 25 Q. Could I refer you to Page 65 of the big volume PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 467 1 of your deposition on Line 11? Was this question 2 asked and did you give this answer: 3 "QUESTION: What happened then? 4 "ANSWER: He walked over to me at the lawn 5 mower I was working on and he wasn't -- he was fairly 6 quiet, not like, hey, good morning, how you doing? 7 Not like his normal self. And I said, 'How are you?' 8 And he was quiet, and the things I noticed most in 9 comparison to the later incident was his face, that he 10 realized something. He looked concerned when I asked 11 him how he was doing and there wasn't much 12 conversation. I just, at that time, felt concerned 13 for my dad." 14 Did you give that answer to that question? 15 A. Yes. 16 Q. Do you recall this incident now, Mr. Forsyth, 17 as we've gone over it a little bit? 18 A. More so, yeah. On Line 15 I said, "How are you 19 doing?" You said just, "How are you?" 20 Q. So you said to him, "How are you doing?" And 21 he just stood there quiet? 22 A. That's my testimony here. It's been a while. 23 Q. And then you asked him again, "How are you?" 24 And your dad responded to you, "I'm not sure." Do you 25 recall that happening? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 468 1 A. I don't remember that now. 2 Q. All right. Well, let me ask you to refer to 3 Line 21 on Page 65 of the large volume of your 4 deposition. 5 "QUESTION: What did your dad say? 6 "ANSWER: I said, 'How are you doing?' And he 7 may have said something like, 'I'm not sure,' which 8 was not an answer I was comfortable with. I realized 9 that he didn't quite know how he was doing and that 10 concerned me because he always was an in-charge kind 11 of guy. At which time I said that I wanted to talk to 12 him about what he might want to do, what was his next 13 step to try to get better, to feel better." 14 Did you give that answer in response to the 15 question? 16 MR. VICKERY: Excuse me, Mr. See. Again, Your 17 Honor, I object unless the following question and 18 answer are read to put it in context. 19 MR. SEE: That will be just fine, Your Honor. 20 THE COURT: Very well. 21 Q (By Mr. See) On Line 4 on Page 66, the next 22 question is: 23 "What did he say? 24 "ANSWER: As I remember, he didn't respond, 25 which concerned me. That was about it. I left, and a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 469 1 couple of hours later I called my wife from the boat 2 to say hi, at which time she told me that my dad had 3 called and said for her to tell me not to worry that 4 he felt much better. Everything is going to be okay 5 and not to worry about our meeting in the morning." 6 Did you give that answer? 7 A. Yes. 8 Q. Now, let me ask you about another incident with 9 your father. Do you remember, Mr. Forsyth, a time 10 when you and your father were driving in your car to 11 your daughter's swim meet? 12 A. Yes. 13 Q. And this was about the same time as the 14 incident outside of your parents' home that we just 15 talked about; isn't that right? 16 A. I don't know when it was as far as dates. 17 Q. Well, the incident where you and your father 18 were on your way to the swim meet was about two weeks 19 before he was admitted to Castle Hospital; isn't that 20 right, sir? 21 A. I can't remember. That was six years ago. 22 Q. If I could ask you to look at the thin volume 23 of your deposition at Page 78. I beg your pardon, 24 it's 77, the last line, Line 25. The question is: 25 "Well, you have in mind February the 24th of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 470 1 1993, that being the day you took your father to 2 Castle Medical Center? 3 "ANSWER: Right. 4 "QUESTION: How would you place the event in 5 relation to that day? 6 "ANSWER: About two weeks before that I would 7 say. 8 Did you give those answers to those questions? 9 A. Yes. 10 Q. Now, you were driving with your father on the 11 way to your daughter's swim meet, and I believe that 12 was going to be in Wailuku? 13 A. Yes. 14 Q. And all of a sudden your father turned to you 15 and said, "Can we turn here? I want to go to 16 Dr. Roberts' office." Isn't that right? 17 A. That's right. 18 Q. It was not in your plans that day to go to his 19 psychiatrist's office, was it? 20 A. It wasn't in my plan. 21 Q. And he had no appointment with his psychiatrist 22 for that day, did he? 23 A. None that I was aware of. 24 Q. In fact, it was on a Saturday, wasn't it? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 471 1 Q. And when you did make a turn and drive to the 2 office of Dr. Roberts, his psychiatrist, but found 3 that because it was Saturday, the office was closed 4 and nobody was there, correct? 5 A. That's right. 6 Q. From your observation of what your father said 7 and his demeanor, he wanted to see his psychiatrist 8 right then, didn't he? 9 A. He did. 10 Q. And, in fact, your father looked panicky at 11 that time, didn't he? 12 A. I don't know if he looked panicky. He just 13 wanted to see and find the doctor. It was only a 14 block out of the way. 15 Q. So as you sat in your automobile in front of 16 Dr. Roberts' office on Saturday, you couldn't go in 17 and see the doctor, right? 18 A. Right. 19 Q. Whatever it was that was bothering your father 20 passed; isn't that right? 21 A. Well, we ended up leaving. I mean, to me he 22 was satisfied. He wasn't there, so we had no other 23 option. 24 Q. And so you went on to the swim meet? 25 A. We did. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 472 1 Q. And your dad seemed okay at the swim meet, 2 didn't he? 3 A. He had a great time. 4 Q. Mr. Forsyth, did you know that -- I'm now 5 coming up to February 22nd of 1993. Did you know that 6 your father went to see his psychiatrist, Dr. Roberts, 7 on that day? 8 A. I did hear that later as far as the date, yes. 9 MR. SEE: Your Honor, at this time we would 10 offer Exhibit 1035. 11 MR. VICKERY: Yes. No objection at all. 12 THE COURT: That exhibit is admitted. 13 MR. SEE: If I may approach and show it to the 14 witness, Your Honor? 15 THE COURT: You may. 16 Q (By Mr. See) Mr. Forsyth, we now have in 17 evidence Exhibit 1035. Do you recognize that as the 18 calendar from your parents' home? 19 A. It looks like it would be, yes. 20 Q. And I specifically want to refer you to the 21 date February 22nd of 1993. Do you see that? 22 A. Yes, I do. 23 Q. And written there on February 22, 1993, is the 24 word Roberts, correct? 25 A. Correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 473 1 Q. And below that is written 4:00 p.m., correct? 2 A. Correct. 3 Q. Now, your dad's visit to Dr. Roberts on 4 February 22nd, you understand that is the visit when 5 Dr. Roberts first prescribed Prozac for him? 6 A. That's my understanding. 7 Q. In fact, your parents talked with you about 8 that visit and about your dad getting a new medication 9 after that visit; isn't that right? 10 A. I don't remember if they told me he got a new 11 medication. 12 Q. Isn't it correct that your mother told you that 13 your dad had gotten a new medication and they were 14 very hopeful about it? 15 A. She might have. I honestly don't remember. 16 Q. Could I ask you to -- refer you to Page 81 of 17 the large volume of your deposition. On Page 81 it's 18 on Line 14. Did you hear this question and give this 19 answer: 20 "QUESTION: All right. And what did you learn? 21 "ANSWER: I remember that my mom told us that 22 they were going to try a new medication for my dad, 23 and from what they were told, it could help and they 24 were hopeful and I can't honestly remember if I was 25 given the name of the medication at that time." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 474 1 Did you give that answer, sir? 2 A. Yes. 3 Q. So to the best of your knowledge and your 4 understanding February 22nd of 1993, was the first day 5 that your father ever took Prozac? 6 A. Yes. 7 Q. And so the next day, February 23rd would have 8 been the second day that he took Prozac? 9 A. Correct. 10 Q. Now, your father came over to your home and 11 visited on February 23rd; isn't that right? 12 A. I think he did. 13 Q. I'm just going to put this up and draw the 14 dates so we can keep them clear. 15 It was February the 22nd that your father first 16 got Prozac from Dr. Roberts, that's your 17 understanding? 18 A. Right. 19 Q. And at least, as is indicated in the calendar, 20 that appointment with Dr. Roberts was at 4:00 p.m.? 21 A. Right, that's what the calendar says. 22 Q. Then your father came to visit you the next day 23 at your home? 24 A. Yeah, I remember talking to him. I think he 25 came to my home. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 475 1 Q. Now, during that visit of your father's to your 2 home on February the 23rd, your father appeared to 3 have returned to his normal personality and had the 4 energy that he always had; isn't that right? 5 A. He seemed pretty good. 6 Q. In fact, on that day, February 23rd, he 7 resembled more of the person he was before he got 8 depressed; isn't that right? 9 A. He seemed more energetic and outgoing. 10 Q. And even he said he felt better, he had more 11 energy; isn't that right? 12 A. Yeah, I think he did. 13 Q. Now, during this February 23rd visit to your 14 home, your father was not behaving in a bizarre 15 fashion, was he? 16 A. I don't remember that he did. 17 Q. He didn't exhibit any outrageous or outlandish 18 behavior? 19 A. Nothing that I can recall. 20 Q. Mr. Forsyth, were you aware that on 21 February 22nd, in the morning before he got Prozac, 22 that your father had called his physician in Los 23 Angeles and told that doctor that he felt like he 24 needed to be in a hospital? 25 A. My dad never told me that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 476 1 Q. So you didn't learn that from anybody? 2 A. I've heard it since. 3 Q. But at the time, your father hadn't told you? 4 A. Oh, no, I didn't know anything about it. 5 Q. Now, on February 24th, you went and visited 6 your parents in their home; isn't that right? 7 A. Yes. 8 Q. And, of course, saw your father? 9 A. Yes. 10 Q. And this was the time, February 24th, when you 11 placed a call to Dr. Roberts and indicated that your 12 father felt that he wanted to go to the hospital, 13 correct? 14 A. Correct. 15 Q. Now, before you placed that call, as you were 16 with your father and observing him, you saw that he 17 was in a very panicky state; isn't that right? 18 A. He wanted to go to the hospital very badly. 19 Q. Well, in fact, didn't you observe your father 20 on February the 24th having what you would call a 21 panic attack before you made the call to Dr. Roberts 22 so you could go to the hospital? 23 A. He just asked me repeatedly if he would try to 24 get me over there. That's why he had me call 25 Dr. Roberts. I never talked to Dr. Roberts prior to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 477 1 that. 2 Q. Could I refer you to the large volume of your 3 deposition on Page 51 at Line 21? Are you there? 4 A. Yes. 5 Q. Were you asked this question and gave this 6 answer: 7 "QUESTION: There's a reference in some of your 8 father's medical records about him having panic 9 attacks. Did you ever observe your father having a 10 panic attack? 11 "ANSWER: No. Well, yes, I would say I 12 observed him have a panic attack when he asked me to 13 call Dr. Riggs to tell him that he wanted to go to the 14 hospital. 15 "QUESTION: Okay. You said Dr. Riggs, is that 16 Dr. Riggs Roberts? 17 "ANSWER: Riggs Roberts. 18 "QUESTION: Was that on February 24, 1993? 19 "ANSWER: I believe that was the day we took 20 him, yeah, the same day that we took him to the 21 hospital." 22 Did you give those answers to those questions? 23 A. Yes. 24 Q. So as you testified in your deposition, you 25 observed your father on February the 24th have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 478 1 something that you called a panic attack, right? 2 A. He had to get to the hospital. 3 Q. And he wanted to go right now? 4 A. Right then. 5 Q. Now, at that time your father told you that he 6 was afraid, didn't he? 7 A. He was afraid to sleep in the house another 8 night. 9 Q. And he looked to you like he was afraid? 10 A. He did. He looked like a man I have never seen 11 before. 12 Q. Now, you made the call to Dr. Roberts and 13 arrangements were made that you would go to or come to 14 Oahu and be able to admit your father at the Castle 15 Medical Center, right? 16 A. Yes. 17 Q. And you were going to fly over here from Maui 18 with your mom and dad, correct? 19 A. I did. 20 Q. And you all took a taxi to the airport on Maui? 21 A. On Maui, no. We took a taxi here to the 22 hospital. 23 Q. Now, what I want to ask you is after the 24 arrangements had been made for your father to come 25 over here to Oahu to be admitted to Castle, on the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 479 1 way; that is, on the airplane, in the taxicab, I want 2 to ask you about what your father looked like. Is it 3 correct that during that time your father was quiet? 4 A. Yes. Um-hum. 5 Q. And during the time; that is, the trip over in 6 the cab, in the plane to the hospital, your father was 7 calm? 8 A. Yes. 9 Q. He wasn't jumping around? 10 A. He was seated. We talked, but he was pretty 11 quiet. 12 Q. And then you stayed with him after he first got 13 to Castle during the sort of preliminary admission 14 procedures? 15 A. I was there as well as my mother. 16 Q. And during the time that he was talking to the 17 admission people and answering questions and so on, 18 this is now getting into the evening of the 24th, 19 right? 20 A. Yes, it was evening. 21 Q. And now I want to ask you about what your 22 father looked like and how he behaved at that time. 23 He was fairly calm? 24 A. Yes. 25 Q. Fairly quiet? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 480 1 A. He just answered the questions. 2 Q. And again, he wasn't jumping around or running 3 around? 4 A. No. 5 Q. When he talked, he made sense? 6 A. Yes. 7 Q. He wasn't out of his head? 8 A. He just answered the questions that they asked 9 him. 10 Q. So now on the trip over and then into the 11 evening, as you've stated, your father was quiet and 12 calm and not jumping around, correct? 13 A. Correct. 14 Q. So then your father was admitted to Castle, 15 right? 16 A. Yes. 17 Q. Is it true, Mr. Forsyth, that at the time your 18 father actually got admitted to the hospital, he felt 19 better and said that he wished he hadn't over-reacted? 20 A. Yeah, I think he didn't really want to be in a 21 hospital that bad. 22 THE COURT: It's after 10:30. Let's take a 23 15-minute break. Please be back at ten of. I want to 24 meet with counsel a minute, so we'll excuse the jury. 25 (Whereupon, the following proceedings were had PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 481 1 in open court out of the presence of the jury.) 2 THE COURT: You may step down. I noticed that 3 Juror No. 3, the one with the memory problem, that you 4 both wanted to keep on because he could take notes is 5 not taking notes. You want him to be instructed to 6 take notes? 7 MR. VICKERY: Probably a good idea, Your Honor, 8 given what he said. 9 MR. SEE: Perhaps a general instruction. 10 THE COURT: Or would it be acceptable if we 11 just had the courtroom deputy suggest it to him? 12 MR. VICKERY: That would be fine with me. 13 MR. SEE: That would be fine with me. 14 THE COURT: All right. Now, how much longer 15 are you going to be with Mr. Forsyth? 16 MR. SEE: Forty-five minutes. He's the 17 principal fact witness. 18 THE COURT: Then there will probably be some 19 rebuttal after that? 20 MR. VICKERY: I will have probably at least 30 21 minutes of redirect, Your Honor. 22 THE COURT: Well, that sounds like it will take 23 up the rest of the morning then. 24 We'll take a 15-minute break. 25 (Whereupon, a recess was taken at 10:37 a.m.) PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 482 1 (Whereupon, the following proceedings were had 2 in open court in the presence of the jury.) 3 THE COURT: Please proceed, Mr. See. 4 MR. SEE: Thank you, Your Honor. 5 Q. Now, we had said that when your dad was in the 6 admission process at Castle, he was having questions 7 asked of him and he was giving answers? 8 A. Yes. 9 Q. And you were there for that interview? 10 A. I was. 11 Q. And is it correct that the initial interview 12 was the only one that you personally attended during 13 the time of his hospitalization? 14 A. Say that again, please. 15 Q. Sure. You indicated that you were present 16 during the time your dad was initially interviewed on 17 the evening of February 24th? 18 A. Yes. 19 Q. Is it true that you were not present during any 20 of the other times that your dad was interviewed by 21 the staff at the hospital? 22 A. That was the only interview that I witnessed. 23 Q. Now, during that interview, your dad was asked 24 if he was having suicidal thoughts; isn't that right? 25 A. They did ask that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 483 1 Q. And at that time he said, no, but I have looked 2 at some knives; isn't that right? 3 A. I don't know if he said he looked at them or he 4 thought about them. 5 Q. Now, you and your mother went to visit your 6 father during the time he was in Castle; isn't that 7 right? 8 A. We did. 9 Q. And you visited the one time, the record show 10 it, February 27th and then in the morning of 11 February 28th. Does that sound about right to you? 12 A. We stayed in the afternoon and a morning, but I 13 don't know the date. But it sounds about right, 14 though. 15 Q. And you and your mom were able to visit your 16 dad on both days, one in the afternoon and then the 17 next morning? 18 A. I don't remember for sure, but I think we did. 19 Q. And I want to ask you how your dad appeared 20 during the visit that you and your mother had kind of 21 in the middle of his hospital stay. 22 Now, you were able to carry on conversations 23 with him? 24 A. Yes. 25 Q. He made sense when he talked? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 484 1 A. Yes. 2 Q. But he was still fairly quiet; isn't that 3 right? 4 A. Pretty quiet. 5 Q. And he also appeared calm; that is, he was not 6 up running around or jumping around; isn't that right? 7 A. I didn't see him run around. 8 Q. And to you he did appear calm? 9 A. Yes. 10 Q. And he was not acting in a bizarre way, acting 11 crazy or out of his head? 12 A. No. 13 Q. Now, your father was discharged from Castle 14 Medical Center on March the 3rd. Does that sound 15 right to you? 16 A. Yes. 17 Q. That was the day before he died? 18 A. Yes. 19 Q. And your mother flew from Maui over here to 20 Oahu to pick him up? 21 A. Correct. 22 Q. And then they together flew to Maui and you 23 picked them up at the Maui airport? 24 A. Correct. 25 Q. And that was sometime in the afternoon? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 485 1 A. Yes, it was. 2 Q. Now, at that time, as I understand it, you 3 drove your mother and father to your house; is that 4 right? 5 A. Yes. 6 Q. And then had some conversation there or in the 7 yard next to your house? 8 A. That's correct. 9 Q. And then they went on home and you stayed at 10 your house and you both had dinner apart? 11 A. Right. 12 Q. And then you went up to their house later on 13 that evening and had another visit and talked with 14 your father and stayed there for a couple of hours? 15 A. Yes. 16 Q. Now, I want to ask you how your father appeared 17 during the time on March the 3rd when you were able to 18 be with him and talk with him. First of all, he told 19 you that he was not feeling that great; isn't that 20 right? 21 A. He -- I don't remember. 22 Q. It was pretty clear to you that he had not 23 recovered? 24 A. He wasn't himself that I knew my whole life, 25 yeah. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 486 1 Q. Now, during the time that you were with your 2 father, both in the late afternoon and early evening, 3 again, he was quiet? 4 A. I talked to him. 5 Q. He was calm? 6 A. Yes. 7 Q. He was sitting, sitting on the sofa? 8 A. At times. 9 Q. He wasn't up pacing around the house? 10 A. He didn't pace. 11 Q. He was not acting abnormal or crazy or bizarre? 12 A. He wasn't bizarre or crazy. 13 Q. His demeanor was subdued? 14 A. Yes. 15 Q. And he was fairly still; that is, he wasn't up 16 jumping around or moving around or pacing or anything 17 like that? 18 A. I remember him getting up to get a paper, a 19 newspaper or something, but he wasn't running around 20 the house. 21 Q. He was not throwing things? He was not 22 violent? 23 A. No. 24 Q. He was not tapping his feet? 25 A. I don't recall. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 487 1 Q. You don't remember anything like that? 2 A. I don't remember him tapping or not tapping his 3 feet. 4 Q. And actually all things considered, I mean 5 understanding that your father was having a depression 6 and had just gotten home from the hospital, your 7 father appeared to you to be fine that evening; isn't 8 that right? 9 A. He wasn't himself, but I wasn't scared that 10 there was something drastically wrong. 11 Q. You were able to go home with a -- with not 12 worrying about your dad that night? 13 A. I wasn't worried. I had concern. I mean, he 14 just came out of a hospital, and he's never been to a 15 hospital in his life before for that. 16 Q. But you weren't worried because of some 17 behavior that you saw? 18 A. I had concern, but I wasn't fearful to leave 19 the home. 20 Q. Now, that evening your father told you that he 21 did not like being in the Castle Medical Center 22 psychiatric unit; isn't that right? 23 A. I think I asked him how did it go and he said 24 he didn't like it. 25 Q. And he told you that he was not comfortable PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 488 1 being around people who were having emotional or 2 mental illness problems? 3 A. I believe he said he didn't like being where 4 people might be suicidal. 5 Q. During the time your father was hospitalized at 6 Castle, your mother had been making calls to various 7 treatment programs and institutions on the Mainland; 8 isn't that right? 9 A. I believe I heard she was. 10 Q. Did you make any calls like that? 11 A. I think I talked to my mom about it. I don't 12 know if I made calls or we just talked about the 13 concept, the idea. 14 Q. And she was specifically investigating and 15 trying to locate a Christian-oriented treatment 16 facility for your father; isn't that correct? 17 A. I think she was exploring anything that would 18 be positive for him. 19 Q. What I specifically was interested in was isn't 20 it the case that the treatment facilities that your 21 mother was investigating for your father, were they 22 not Christian-oriented psychiatric programs? 23 A. I believe she called quite a few, so some of 24 them could have been. 25 Q. Do you recall that one of them was the Dr. Fred PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 489 1 Gross Christian Therapy Program? Does that ring a 2 bell? 3 A. I don't know. Not really. It's been a long 4 time. 5 Q. If I could refer you to the big volume of your 6 deposition at Page 114 starting at Line 1. 7 A. On Page 114? 8 Q. Yes, sir. Were you asked this question and 9 give this answer: 10 "These clinics that your mother talked about, 11 did they utilize a Christian approach to treating 12 depression? 13 "ANSWER: I'm not sure, but I do remember -- I 14 know one of the names of the clinics was a Dr. Fred 15 Gross. I think something like that." 16 Did you give that answer? 17 A. I'm sure I did. 18 MR. VICKERY: Excuse me, Mr. See. Once again, 19 Your Honor, for fairness and completion, I'd like the 20 next question and answer read at this time. 21 THE COURT: Very well. 22 Q (By Mr. See) Starting at Line 6, do you have 23 that, Mr. Forsyth? 24 A. Yes. 25 Q. "QUESTION: Okay. Now, my question for you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 490 1 was, to your knowledge, did the clinics that your 2 mother talked about that evening have specifically to 3 do with a Christian or a religious approach to 4 treating depression? 5 "ANSWER: I don't think they specifically did, 6 but they may. One or the other, could have. I don't 7 think that was her emphasis or the emphasis on what we 8 were looking for." 9 Did you give those answers? 10 A. Yes. 11 MR. SEE: May I approach the witness, Your 12 Honor, to hand him an exhibit? 13 THE COURT: You may. 14 Q (By Mr. See) Mr. Forsyth, I'm going to hand 15 you what's been marked for identification as 16 Exhibit 1142. And the question that I want to ask you 17 about that is, I'm interested not in the text, but in 18 the advertisement part, the part that says, "How do 19 you deal with the pressures in life?" Do you see 20 that? 21 A. Yes, I do. 22 Q. There's a reference there to the Dr. Fred Gross 23 Christian Therapy Program. Does that refresh your 24 recollection, Mr. Forsyth, about what kind of 25 treatment facility that your mother was looking at for PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 491 1 your father? 2 A. It sounds like the statement that I made in my 3 deposition. 4 Q. Now, let's get to the evening conversation. 5 After dinner you came back up to your parents' home 6 and it was just your father and your mother and you, 7 correct? 8 A. That's correct. 9 Q. And you stayed there and you talked with your 10 dad and with your mother for a couple of hours? 11 A. I'd say two to two and a half. 12 Q. And one of the things that you talked about was 13 that the family was looking at another treatment 14 facility for your father to go into; isn't that right? 15 A. That must have been when we talked about that, 16 yes. 17 Q. And when the subject of another treatment 18 facility for your father on the Mainland came up, your 19 father did not respond in a real positive way about 20 that; isn't that right? 21 A. I know -- I don't remember. I know he wanted 22 help just by him asking us to take him to the 23 hospital. 24 Q. Mr. Forsyth, after your -- after your parents 25 were found by you the next day, that would be March PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 492 1 the 4th, right? The police then came to your parents' 2 home -- 3 A. Yes. 4 Q. -- isn't that right? And the police made an 5 investigation of your parents' home and they took 6 certain things with them; isn't that right, sir? 7 A. I didn't watch them during their investigation. 8 Q. But you know or you came to know that the 9 police did remove certain things from your parents' 10 home? 11 A. Yes. 12 Q. And did you learn that one of the things that 13 the police removed on March the 4th from your parents' 14 home was a letter that was stamped and addressed to 15 Bill Dornblazer? 16 A. I've heard about a letter. 17 Q. What happened to that letter, Mr. Forsyth? 18 A. I have no idea. I've never seen the letter. 19 MR. SEE: If I might just briefly approach the 20 witness, Your Honor, one more time? 21 THE COURT: You may. 22 Q (By Mr. See) Let me hand you what's been 23 marked for identification as 1141, and the only 24 question I want to ask you about that exhibit is 25 that's the outside of an envelope and a letter. Does PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 493 1 that appear to be in your mother's handwriting? 2 A. Yes, it does. 3 Q. Mr. Forsyth, is it correct that at some point 4 after your parents deaths you travelled from your home 5 in Maui to Indianapolis, Indiana and went to the 6 headquarters of Eli Lilly and Company? 7 A. Yes. 8 Q. And is it also correct that during that trip, 9 while you were there, you went to the parking lot 10 where the cars were parked of the Lilly employees and 11 distributed handouts or fliers on the windshield of 12 the automobiles? 13 A. Yes. 14 Q. And on the same trip, did you also then go to 15 downtown Indianapolis and distribute fliers or 16 handbills on the windshields to the cars that were 17 sort of public that were parked there on the street? 18 A. Yes. 19 MR. SEE: Thank you, sir, very much. 20 THE COURT: Mr. Vickery. 21 MR. VICKERY: Thank you, Your Honor. 22 REDIRECT EXAMINATION 23 BY MR. VICKERY: 24 Q. Why did you do such a thing, fly to 25 Indianapolis and put fliers on the cars of Lilly PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 494 1 employees? 2 A. I was so concerned about the loss of my parents 3 to help educate. 4 Q. To educate who, your parents were dead? 5 A. Anybody I could help that would follow. 6 Q. What did you want to educate them about? 7 A. The dark side of this drug. 8 MR. SEE: Your Honor, I'm going to object and 9 move to strike that response. 10 MR. VICKERY: I'll respond by saying I have no 11 idea on what basis counsel's objection is made. He's 12 just opened this door -- 13 MR. SEE: Your Honor, may we approach? 14 THE COURT: Very well. 15 (Whereupon, the following proceedings were had 16 at side bar out of the hearing of the jury.) 17 MR. SEE: Your Honor, my objection is this is a 18 lay witness. He's about to give testimony that Prozac 19 is a bad drug. Prozac is a dangerous drug. Prozac is 20 a harmful drug, and he's not qualified to do it. 21 MR. VICKERY: Your Honor, Mr. See just asked 22 him -- I stayed away from that on purpose in the 23 direct examination. Mr. See just asked him about this 24 trip and I want to know his motivation and state of 25 mind in making that trip. Mr. See has opened that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 495 1 door, not me. 2 MR. SEE: But what the witness is not entitled 3 to do is give lay opinion testimony. He's not 4 entitled to say the drug is bad. He's not allowed to 5 say that it causes harm. He doesn't have the 6 qualifications to do that. 7 THE COURT: Well, I'm going to strike the last 8 answer, but I'll allow the part about his concern 9 about his parents and he wants to help educate the 10 people. But I'm not going to say, we're striking the 11 dark side of the drug. 12 MR. VICKERY: I don't want you to say that at 13 all, Your Honor. 14 THE COURT: I'm asking Mr. See. 15 MR. VICKERY: I'm sorry, I thought you were 16 asking me. 17 MR. SEE: To strike the last sentence would be 18 fine. 19 THE COURT: All right. 20 MR. VICKERY: Your Honor, while we're still at 21 side bar here, I intend to since Mr. See has 22 questioned his motivations obviously and state of 23 mind. 24 THE COURT: He explained his motivation. 25 MR. VICKERY: I'm concerned that an instruction PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 496 1 from the Court on this last statement takes away from 2 Mr. Forsyth's state of mind. It's like the Court 3 saying his state of mind doesn't matter. 4 THE COURT: He said he was there to help 5 educate people and he was concerned about his parents, 6 but I'm not going to go on with a lay opinion on what 7 he did. 8 MR. VICKERY: Will you make that clear in your 9 instruction to the jury that his concern was educating 10 people? They can consider that, just not his opinion 11 about the drug. 12 THE COURT: Yes. 13 MR. VICKERY: Thank you. 14 (Whereupon, the following proceedings were had 15 in open court in the presence of the jury.) 16 THE COURT: The Court instructs the jury that 17 you may consider the witness' statement that he went 18 there because he was concerned about his parents and 19 he wanted to help educate other people, but as far as 20 his last sentence, that is stricken and you should not 21 consider it. Please proceed, Mr. Vickery. 22 MR. VICKERY: Thank you, Your Honor. 23 Q. Now, Mr. Forsyth, I want to follow up just on a 24 few matters that Mr. See touched on with you, and if 25 you will there, take the big volume of your PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 497 1 deposition. Tell us from the very front page when 2 that deposition was taken. 3 A. This one says March 5, 9:00 a.m., 1996. 4 Q. That was three years ago last Friday, correct? 5 A. Correct. 6 Q. Have you ever read this deposition? 7 A. I've never read it. It's too lengthy for me. 8 Q. Well, weren't you afraid that if you didn't 9 read it, you might say something a little bit 10 different when you got up on the witness stand? 11 A. I'm not afraid of the truth. I'm just trying 12 to remember as best as I can. 13 Q. Let me ask you, if you would, to turn to 14 Page 66. There's a sequence that Mr. See asked you 15 about and I want to read the rest of it. 16 MR. SEE: Your Honor, I object. It's improper 17 impeachment. It's hearsay. 18 MR. VICKERY: The rules of evidence are very 19 clear, once he offers a part of a writing, Your Honor, 20 then I'm entitled to offer the rest to put the whole 21 thing in context. There's two sequences with this 22 deposition where I intend to do that. 23 THE COURT: What lines are you referring to on 24 Page 56? 25 MR. VICKERY: The lines are -- Page 66 Lines 4 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 498 1 through 24. It was not used for impeachment anyway, 2 Your Honor, because I don't think that it was 3 inconsistent with his testimony today, but I'm 4 offering this entire sequence to put that colloquy 5 that Mr. See asked him about into its full context. 6 THE COURT: I'll allow it. 7 MR. VICKERY: Thank you, Your Honor. 8 Q. Now, Page 66, this is the time when you had 9 this incident where you were mowing the lawn and your 10 father backed the car out, you remember that incident? 11 A. Yes. 12 Q. What I'm going to do is just read the questions 13 as they appear on Line 4, and if you would just read 14 the answer as you gave it to Mr. See on March 6, 1996. 15 "What did he say?" 16 A. "As I remember, he didn't respond, which 17 concerned me. That was about it. I left and a couple 18 of hours later I called my wife from the boat to say 19 hi, at which time she told me that my dad had called 20 and said for her to tell me not to worry, that he felt 21 much better. Everything's going to be okay and not to 22 worry about our meeting in the morning." 23 Q. "When you were talking to your dad at this 24 meeting at his house in the morning, did he tell you 25 that he was worried about something?" PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 499 1 A. "No, but I sensed concern." 2 Q. "Did you see that on his face?" 3 A. "More on his face and his presence. There 4 wasn't a lot of conversation. It was short, the 5 visit, but I did have concern and he, I think, for the 6 first time, saw in me that I had concern. Because I 7 was amazed at his phone call later that in his 8 condition he was able to evaluate my concern for him, 9 my worry for him. He had enough love for me to call 10 later and try to get the message to me not to worry, 11 that he felt better and was okay. I was very 12 surprised and impressed by that." 13 Q. Did you appreciate the love that your father 14 had that even in his condition, he would take the time 15 to call and say don't worry about me? 16 A. Yes. 17 Q. Now, turn with me, if you would, to Page 52. 18 This is the section where Mr. See was asking you about 19 February 24th, 1993, when your father wanted you to 20 take him immediately to the hospital. Do you recall 21 that? 22 A. Yes. 23 Q. And we're going to just do the same thing, if 24 we can, from 52 Line 8 down to 53 Line 8. 25 "Now, did your dad -- how did your dad behave PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 500 1 when he was having the panic attack on February 24, 2 1993?" 3 A. "He behaved like a -- in a manner that I did 4 not recognize. He wasn't himself. He wasn't able to 5 call Dr. Riggs himself which was out of his character, 6 as he could normally handle most any dealings on his 7 own." 8 Q. "Did he say that he was worried?" 9 A. "He said that he felt strange. That he had to 10 go to a hospital. That he wanted to detox from the 11 drugs which he was given. He said, at my suggestion, 12 I said that we could go tomorrow as it's late in the 13 day and to try to get everything together, a flight 14 and such. I didn't know that we could make a flight 15 maybe -- I didn't know that we could make a flight 16 maybe three or four." 17 Q. "In the afternoon?" 18 A. "Probably three, but he said he had to go 19 today." 20 Q. "Did your father on February 24th, 1993, did 21 your father say he felt like something bad was going 22 to happen to him or words to that effect?" 23 A. "He said he didn't want to do something 24 strange. That he wanted to detox. I was looking at 25 him at about the same distance that we are while I was PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 501 1 making the call and I looked in his eyes. He was not 2 even there. I mean, I did not see my dad. The 3 presence in his face or his eyes. There was no eye 4 contact. There was just a hollowness. A man who was 5 no longer representative of who he was the many years 6 that I knew him." 7 Q. Mr. Forsyth, do you remember now, having read 8 this, your father saying to you on that day, two days 9 after he began to take Prozac, that he didn't want to 10 do something strange? 11 A. Yes. 12 Q. Are you okay? Get a little water for yourself. 13 Mr. See also asked you about an incident in 14 which you were on your way to your daughter's swim 15 meet and you and your dad were in the car and he said, 16 "Turn here, let's go to see Dr. Roberts." 17 A. Yes. 18 Q. Do you recall that incident? 19 A. Yes. 20 Q. And you couldn't see Dr. Roberts that day, 21 could you? 22 A. We didn't see him. 23 Q. But you and your dad did something else that 24 calmed him and made him better, didn't you? 25 A. We did. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 502 1 Q. Would you look these people in the eye and tell 2 them what you did? 3 A. We just bowed our heads and prayed and just 4 asked to go about our day and be okay. 5 Q. When you bowed your head to pray with your 6 father privately there, he didn't say, "Come on, 7 Billy. Stop this pressure. I don't want to hear this 8 religious stuff?" He didn't say something like that 9 to you? 10 A. No, he prayed with me. 11 Q. And did he get better? 12 A. Well, we went down to the meet and watched my 13 daughter and had a great time. 14 Q. Okay. Now, I just have a few more things to 15 ask you. First of all, your mother's journals, 16 Mr. See has asked you about her journals and what kind 17 of a person she was. Did you ever see her private 18 journals in her lifetime? 19 A. No, I didn't. 20 Q. But was she, indeed, the kind of a person who 21 was a woman of strong faith who would write prayers or 22 scripture verses or things to herself? 23 A. Yes, she was. 24 Q. Was she ever in her life the kind of a woman 25 who would, well, be what I, from the deep South, would PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 503 1 call a button holder, somebody that really kind of 2 grabs somebody by the shirt and say, you know, I want 3 you to find God. I want you to be religious. Was she 4 that kind of a woman? 5 A. No. 6 Q. Did she ever put pressure on your father to 7 have an encounter or an experience with God? 8 A. No. 9 Q. In what way -- if she did influence him, in 10 what way did she do it? 11 A. She just loved him, you know, and wanted him to 12 have what she had. 13 Q. Now, in the sequence you read in the deposition 14 with Mr. See, you said something about your father 15 finding peace and having an experience of his own. 16 Did your father, in early 1993, have some kind of a 17 religious experience or awakening of his own? 18 A. He did. 19 Q. I want to look at that in chronological 20 context, but let's look at it with the journals first, 21 okay? In this blowup that we have from Mr. See in the 22 1991 journal, your mother writes, "Won't take walks 23 with me on the beach and yet when friends come to 24 visit, he walks with them while I'm cooking." 25 I want to ask you, Mr. Forsyth, about 1993, two PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 504 1 years later after they had been through marital 2 therapy with Tom Brady, did you see your parents walk 3 on the beach many times together? 4 A. Yes, I did. 5 Q. And your mother writes, when he talks -- "When 6 I talk, he glares at me or puts his hand up. He never 7 does this to anyone else." Did your father have a 8 habit within your family of when somebody was saying 9 something, he would be quiet or something, he would 10 hold his hand up like that? 11 A. Yeah, he's done it to me before. 12 Q. That's what I was going to ask you. He's done 13 it to you? 14 A. Yes. 15 Q. Was it ever kind of an in-your-face thing or 16 hostile action or was it a signal? What was it? 17 A. If he's watching TV or had some important 18 business or phone call, if I was loud or not being 19 considerate, that was to get my attention that he 20 thought what he was doing was real important and could 21 I be quiet. 22 Q. Let's look at the 1992 and '93 journals. Could 23 I have the television on Ms. Barth. Mr. Chang, maybe 24 you could help me here. 25 Mr. Forsyth, can you see that from where you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 505 1 are? 2 A. So far, yeah. 3 Q. Maybe let me turn it a little bit more in your 4 direction. 5 MR. VICKERY: These are Plaintiffs' 172, Your 6 Honor, the entire journal of June Forsyth. The first 7 entry we're going to look at is January 3rd of 1992, 8 the start of that year, okay? 9 MR. SEE: I'm sorry, mine doesn't -- 10 MR. VICKERY: She hasn't gotten it up yet, 11 Mr. See. 12 Q. Can you read that from there or do you need to 13 come down? I'm going to ask you, since it is your 14 mom's handwriting, to read the highlighting. 15 A. I need to get a little closer. 16 Q. Come on down. 17 MR. VICKERY: Your Honor, I'm sorry. I 18 apologize to the Court. 19 THE COURT: Yes. He asked if he could go down. 20 MR. VICKERY: I should have, I'm sorry. 21 Q. Would you just read what's highlighted? 22 A. "God, if you are working through me to heal our 23 marriage, I see now I must -- must or mustn't -- 24 mustn't feel totally responsible for the whole task." 25 Q. And then down at the bottom of the page -- of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 506 1 course, the jury will have all of these later -- what 2 did she write there? 3 A. "Thank you for all you have reached to me this 4 past year." 5 Q. Revealed maybe? 6 A. "Thank you for all you have revealed to me the 7 past year, 1991." 8 Q. Okay. We're going to go forward about ten 9 months to late October, October 30 after your mom and 10 dad had their first meeting with Tom Brady in Los 11 Angeles, okay. 12 October 30, would you read that please, sir? 13 A. It says, "Lord, show me the path of obedience 14 that I may walk in it today, your present." 15 Q. Your promise? 16 A. "Your promise. I will set my eyes on Bill for 17 good." 18 Q. And at the bottom of that page, I'm sorry, it 19 is November 10th? 20 A. "As Tom Brady says, feelings are just that, 21 feelings. They have no basis in realty, no logic, 22 just a feeling. I must give others a" -- that's a 23 squiggly there -- "a wide path, but also myself." 24 Q. Okay. The next one is from November of 1992 25 and, Ms. Barth, put it up there for us. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 507 1 A. "Bill and I together. I choose today to love 2 Bill unconditionally. Give him a wide path. Give all 3 my family that wide path, and work on being me as God 4 would have me." 5 Q. Thank you. Now, December 3rd, this is the day 6 before their last visit with Dr. Brady, they're still 7 in Los Angeles. Would you read this? 8 A. "This is our day to move, not only out of this 9 dark place of despair, but into a new happy life of 10 peace and joy and God. I" -- 11 MR. SEE: Relinquish. 12 THE WITNESS: "I relinquish Bill to you to do 13 your work in him. You have done such wondrous" -- 14 Q (By Mr. Vickery) I think it is just wonders, 15 isn't it? 16 A. "Wonders in my life. I know you are working in 17 his and that your love -- that you love us both." 18 Q. Okay. Down at the bottom of that page, what 19 does your mother write on December 2, 1992? 20 A. "This is the first day of the rest of my life." 21 Q. Now, let's look at January. Ms. Barth, turn 22 that off for just a minute, if you would. 23 MR. VICKERY: Your Honor, I want to offer into 24 evidence Exhibit 1141 the letter that Mr. See asked 25 Mr. Forsyth to identify as being in his mother's PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 508 1 handwriting. 2 THE COURT: Any objection? 3 MR. SEE: The letter is not on the exhibit 4 list, Your Honor. 5 MR. VICKERY: It's got an exhibit number. 6 Mr. See gave it an exhibit number. He asked 7 Mr. Forsyth on the stand to identify it. 8 THE WITNESS: I have it up there. 9 MR. VICKERY: And I would like to offer it into 10 evidence so the jury can have it, Your Honor. 11 THE COURT: Any problems, Mr. See? 12 MR. SEE: Only that it's not on the exhibit 13 list, Your Honor. 14 THE COURT: It's on your exhibit list. 15 MR. SEE: No, it's not. I just had it 16 identified for identification. I want to use it for 17 something later. I was not going to offer it into 18 evidence. 19 THE COURT: Do you have any objection to it 20 being admitted? 21 MR. SEE: No objection. 22 THE COURT: Very well. 1141, is that it? 23 MR. VICKERY: Yes, it is, Your Honor. 24 THE COURT: 1141 is admitted. 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 509 1 Q (By Mr. Vickery) Now, this is a letter to a 2 lady named Judy Hawkes back in Los Angeles. Do you 3 know Ms. Hawkes? 4 A. I recognize the name on it, but I forget who it 5 is. 6 Q. Okay. And the postmark says it is January 6, 7 1993, right? 8 A. Yes, it does. 9 Q. Let's look, if we may, at the second page of 10 what your mother writes to Ms. Hawkes. Will you read 11 right here now. 12 A. "Bill has" -- I don't know what that is. "Bill 13 has asked for a reconciliation and come back to Maui 14 the first part of December." 15 Q. At the bottom. 16 A. "I believe He is doing great works in Bill's 17 life." 18 Q. Now, that "He" is capitalized. Is she talking 19 about God doing great works in Bill's life? 20 A. I think she is. 21 Q. Let's go back to the journal and look at the 22 entry of January 12, 1993. Would you read that for 23 us? 24 A. "Bill told me that he kneeled down in the hall 25 and asked if -- asked you into his heart, Lord. Thank PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 510 1 you. I praise you for the work you're doing in his 2 life. If your word is true, and it is, he is now born 3 again." 4 Q. Now, Mr. Forsyth, before we look at the last 5 entry in your mother's calendar or journal, tell me 6 this, did you have a conversation with your father 7 where he related to you this incident in his home 8 where he knelt down and said a prayer and asked for an 9 understanding or a better relationship with God? Did 10 he share that with you? 11 A. He did. 12 MR. SEE: I object to leading and hearsay, Your 13 Honor. 14 THE COURT: I'll object (sic) as to leading. 15 Q (By Mr. Vickery) Okay. Why don't you sit in 16 the chair. We've got one more to read and I'll read 17 that one. 18 Tell us, if you would, sir, what you recall 19 your father saying to you about this incident recorded 20 in your mother's journals of him kneeling down in his 21 home privately. 22 A. One day I was up in their neighborhood working 23 in the lot next to their home on a boat mast painting 24 it, and my father came out of the back sliding door 25 and walked over to me in the lot and just said he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 511 1 wanted to talk to me, and I stopped what I was doing 2 and said okay. And he said, he wanted me to know that 3 he felt he had his own close relationship with God now 4 and that he had prayed and it was a very wonderful 5 time. I just hugged him and told him that was really 6 great and I was just excited for him and that I could 7 be there for him. It was a great moment that he 8 shared with me. 9 THE COURT: What's that offered for, 10 Mr. Vickery? 11 MR. VICKERY: That's offered, Your Honor -- 12 well, I didn't intend to offer it for any limited 13 purpose at all. I guess to respond to the notion that 14 Mr. Forsyth, at the time of his death, was under some 15 religious pressure that he resented in some way. 16 THE COURT: Very well. 17 Q (By Mr. Vickery) Let's look at the last thing 18 your mother has to say about that in her journal. 19 January 26, 1993, "Bill's spiritual birthday. Thank 20 you, God. When things work together for good to those 21 who love the Lord" -- I'm sorry, "All things work 22 together for the good for those who love the Lord and 23 are called according to his purpose." Thank you, 24 Ms. Barth. 25 Did you ever, from January 26, 1993 until the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 512 1 time of your parents deaths, hear your father say 2 anything to indicate that his own experience was not 3 real, legitimate, or that he in any way resented 4 anything about your faith or your mother's faith? Did 5 you ever see or hear anything like that? 6 A. Nothing at all. 7 Q. Okay. Mr. Forsyth, the final thing I want to 8 do here is play a video of -- some of your family 9 videos. Over the years, has your family taken videos 10 of family situations? 11 A. Yes. 12 Q. And have you provided all of those and have 13 they been edited down into about a 15-minute segment 14 or so? 15 A. Yes. 16 MR. VICKERY: Okay. Your Honor, we are going 17 to offer this as previously -- what's the number? 18 MS. BARTH: 167. 19 MR. VICKERY: It's part of 167, and pursuant to 20 the rulings of the Court, we offer this and the 21 related photos. 22 Are they the same number? 23 MS. BARTH: No, 168. 24 MR. VICKERY: And 168 are the photos, so the 25 offer is as to 167 and 168, and we have here the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 513 1 limiting instruction that the Court has discussed with 2 counsel. If I may tender it to your clerk. 3 THE COURT: Very well. The Court will instruct 4 the jury that plaintiffs' counsel will be showing you 5 a videotape of excerpts from the Forsyths' home 6 movies, as well as some family photographs. Parts of 7 the tape and pictures that depict Mr. and 8 Mrs. Forsyth's grandchildren are presented to 9 illustrate Mr. and Mrs. Forsyth's relationship with 10 their family before Mr. Forsyth became depressed. 11 They are not intended to establish any right to 12 compensation for the grandchildren. Under Hawaii law, 13 grandchildren do not have a right to recover damages 14 for the wrongful death of their grandparents. 15 You are instructed not to consider the 16 videotape portions or four photographs that include 17 the grandchildren for any other purpose then to 18 illustrate Mr. and Mrs. Forsyth and their relationship 19 with their family before Mr. Forsyth became depressed. 20 MR. VICKERY: Thank you, Your Honor. 21 Q. As we roll the tape, what I would like for you 22 to do, Mr. Forsyth, is just tell them who generally 23 the people are on the screen. You don't have to talk 24 all the time. Just say that's my mom or my dad and 25 these are my kids so they'll understand who they are PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 514 1 seeing and also who they are hearing. I think there 2 are some sequences where your father is taking the 3 video. Could you do that for us? 4 A. Okay. 5 Q. Okay. Ms. Barth, if you would. 6 (Whereupon, the playing of the videotape 7 commenced.) 8 THE WITNESS: This is our church. 9 Q (By Mr. Vickery) Who's this lady right here? 10 A. That's my wife Kim. 11 Q. Can you tell us who these folks are? 12 A. That's my mom and dad. 13 Q. And who's this little guy? Is that Willie? 14 A. Yeah, that's Willie. 15 Q. Okay. 16 A. Could you stop that for a second? It's a 17 little hard for me to see. That's my sister-in-law 18 that I said was my wife. She's ten months older than 19 my wife and does look a lot like her, but my wife is 20 next to me. I'm sorry. 21 Q. This is your sister-in-law? 22 A. Yes. 23 Q. And this is you holding the baby? 24 A. Yes. 25 Q. And that's Kim, your wife, next to you? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 515 1 A. Yes. This is a boat that I had in the past. 2 I've had quite a few boats for the charter business. 3 That's my son. 4 Q. Who's that guy? 5 A. That's me. There's my mother. My dad is 6 asking us to show him where Lahaina is. That's my 7 daughter. 8 Q. Is that you talking or your father? 9 A. That's my father asking her about the whales. 10 That's my mother talking in the back. 11 That's my mom sitting there with the life 12 jacket on the boat deck. 13 Q. We didn't freeze it in time, but there's a 14 still photograph of your entire family on the porch. 15 Was it taken at the time of Christmas of 1991? 16 A. Yes, out on the front steps, I think. 17 Q. Okay. Thank you. Is this your sister Susan 18 down here? 19 A. Yes. That's my dad talking again on the video. 20 Q. Is that your wife Kim now? 21 A. Yes. Don't tell her about that mistake. 22 That's my mother. 23 That's my mother cooking. 24 Q. We don't see a lot of your father. Was he 25 typically the guy running the video camera in your PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 516 1 family? 2 A. Almost always. 3 Q. Okay. 4 A. This is at my parents' home downstairs. There 5 is their train and Christmas tree setup. 6 Q. Is that Susan? 7 A. Yes. 8 Q. Is that really what your wife wanted for 9 Christmas? 10 A. I've never seen her use it. That's my oldest 11 son Seth and my father speaking. 12 Q. Is this still your father taking this and 13 talking? 14 A. Yes. I think this is over at our house in the 15 grass. 16 Q. Is that your father tormenting that child? 17 A. Yes. That's my kids and my dad in the little 18 boat. 19 Q. Now, this looks like older parents in '88? 20 A. Yeah. 21 Q. Someone in your family live at Kahana Village? 22 A. My parents lived there before they built their 23 retirement home on Maui. 24 Q. Who's taking that photo and talking? 25 A. That's my dad. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 517 1 That's our daughter. My mom is talking to her. 2 Q. We turned that sound down. You all did, in 3 your home movies, a tourist thing where they put the 4 sound in there? 5 A. Well, this is one from the charter boats I run 6 and my parents were with me. There are some times 7 we're using the home camera or maybe someone on the 8 boat and when someone on the boat does it, they do 9 typically put music behind it. 10 MS. BARTH: Your Honor, if you could make sure 11 your sound is down also. 12 THE COURT: I can't hear you. 13 MS. BARTH: Could you make sure your sound is 14 down also? 15 THE COURT: I think it is. That should do it. 16 THE WITNESS: That's my dad in the white cap 17 right there, and I've got the blue cap. My mom is on 18 the right. This was done by the boat videographer. 19 That's my mom and dad. That's my dad pretending that 20 he's sailing the boat or moving the sails. And this 21 is where they kind of pretend they're seeing whales 22 all around the boat. 23 This is my dad hamming it up like he caught a 24 big giant fish, and he's just playing it up for the 25 camera. Now my mom is doing the same thing and my dad PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 518 1 is helping her. And this is where they edited in a 2 fish that they didn't really catch. 3 MR. VICKERY: Thank you, Ms. Barth. That 4 concludes our offer of that, Your Honor. And in view 5 of the hour, we would like to publish the photos to 6 the jury at this time. 7 THE COURT: I think we better break for lunch 8 now. Please be back at five after one. I want to 9 meet with counsel. We'll excuse the jury at this 10 time. 11 (Whereupon, the following proceedings were had 12 in open court out of the presence of the jury.) 13 THE COURT: Now, what's your witness schedule 14 after this, Mr. Vickery? 15 MR. VICKERY: Your Honor, we have three fact 16 witnesses, Sky Nelson, David Capelouto, and Bill 17 Klein. We're going to try to move Mr. Nelson first to 18 accommodate his flight schedule, but it would be those 19 three and then Dr. Healy. Those will all be fairly 20 short witnesses, so I think that it is possible and, 21 indeed, likely that we would get to Dr. Healy mid 22 afternoon. 23 THE COURT: Well, I think we're going to have 24 to have a further Daubert hearing with respect to 25 Dr. Healy. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 519 1 MR. VICKERY: That's fine. Why don't we take 2 those three witnesses. I can try to get another down 3 here, if you like, another fact witness, or we could 4 just take those three fact witnesses and whenever 5 we're done, then have the Daubert hearing. 6 THE COURT: I guess we probably ought to excuse 7 the jury for the day after those three fact witnesses 8 then, unless you've got a fourth one in. 9 MR. VICKERY: That will be fine, Your Honor. I 10 think we might as well go ahead and do that and have 11 the Daubert hearing after those three fact witnesses. 12 That would be fine. 13 THE COURT: All right. 14 (Whereupon, a lunch recess was taken at 15 12:07 p.m.) 16 THE COURT: Please proceed, Mr. Vickery. 17 MR. VICKERY: Thank you, Your Honor. With the 18 Court's permission, I would like to publish 19 Plaintiff's Exhibit 168, the photographs to the jury. 20 THE COURT: Very well. 21 MR. VICKERY: I pass the witness, Your Honor. 22 MR. SEE: Your Honor, no further questions. 23 Mr. Forsyth, thank you very much. 24 THE COURT: Thank you. You may step down. 25 Next witness. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 520 1 MR. VICKERY: We call Sky Nelson. 2 THE CLERK: Please raise your right hand. 3 EDWIN L. NELSON, 4 called as a witness on behalf of the Plaintiffs, after 5 having been first duly sworn to tell the truth, the 6 whole truth, and nothing but the truth, was examined 7 and testified as follows: 8 THE CLERK: Please be seated. Please state 9 your name and spell your last name. 10 THE WITNESS: Edwin L. Nelson, N-E-L-S-O-N. 11 DIRECT EXAMINATION 12 BY MR. VICKERY: 13 Q. I'm in big trouble. I just told the Judge we 14 were calling a guy named Sky Nelson. 15 A. Alias Sky Nelson. That's been my nickname for 16 a lot of years. 17 Q. Mr. Nelson, tell us a little bit of background. 18 How old a gentleman are you? 19 A. Fifty-two. 20 Q. And how long have you lived in the Hawaiian 21 Islands? 22 A. Twenty-two years. 23 Q. Where do you live? 24 A. I live in Maui now. 25 Q. How long have you lived on Maui? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 521 1 A. Let's see. Just about 20. 2 Q. About 20 years? 3 A. Um-hum. 4 Q. She doesn't have a um-hum button on that 5 machine, so if you would say yes instead of um-hum. 6 A. Oh, yes. 7 Q. We can't get in trouble with the court 8 reporter. 9 Mr. Nelson, were you a personal friend of both 10 Bill and June Forsyth? 11 A. Yes, I was. 12 Q. Tell the folks in the jury how you came to know 13 them, if you would. 14 A. I actually met them at church many years ago. 15 I knew Bill, Bill, Jr., he was a sailor around town. 16 He was a Christian at a church in Lahaina and I met 17 his father there. I don't remember exact 18 circumstances, but that's where my first meeting was 19 with him. 20 Q. And what was the nature of your association 21 with him, with Bill, Sr., over the course of the 22 years? In what context would you see him and how 23 frequently? 24 A. Well, actually the relationship sort of grew. 25 Bill, Jr. hung his real estate license with me and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 522 1 through church I just got to know him and then I moved 2 into a neighborhood a couple of blocks from his house 3 and built a house there and we both became members of 4 the association there, the board of directors, and in 5 fact, we were both on it for three years. I just saw 6 him as a neighbor and going to church and, of course, 7 as Bill's father and as a board of director on the 8 board of directors. 9 Q. Were you in the group of men that would 10 sometimes get together early in the morning and have 11 coffee? Were you in that group? 12 A. No. I mean, other than we had a Christian -- 13 we had a men's breakfast, but I don't think that's 14 what you were talking about. 15 Q. Did Bill, Sr. come to that breakfast? 16 A. He may have come to it once or twice. I don't 17 remember. 18 Q. So you saw him sort of socially. Did you ever 19 have any business dealings with him of any kind? 20 A. No, not nothing... 21 Q. And how about June Forsyth, what was the nature 22 of your acquaintance or association with her? 23 A. Very similar, although not as frequent as Bill, 24 Sr. I used to see June, of course, on the hillside at 25 church, in social events with Bill's family, and then PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 523 1 also I used to take lots of walks in running through 2 Kaanapali, and June, of course, would do that 3 everyday, so we would stop and talk whenever I saw her 4 on those jaunts. 5 Q. Okay. Tell us, if you will, your impression of 6 both of those people. Let's take Bill first. Just in 7 your own words, how would you describe him? 8 A. I thought he was a super guy. He was even 9 tempered, very doting over his grandchildren. Great 10 sense of humor, a good mentor to me. He actually gave 11 me lots of advice in business and in other things. 12 Just an all-around good guy as far as I was concerned. 13 Q. How about his level of activity in the couple 14 of years that he lived on Maui, did you see him out 15 and about? 16 A. All the time. I sort of worked out of my home, 17 which was a couple of blocks from Bill's house, and he 18 would come around. He always made jokes about food, 19 so he would come by and say I smelled the tamales or I 20 smelled this. It was sort of like an invite to come 21 and have tamales, but he used to come by and, you 22 know, we would just converse and talk about different 23 things, and I would see him quite often actually. 24 Q. How about June, what's your impression of her? 25 A. A great mother. She was -- I didn't know her PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 524 1 as well, and so -- I mean, I saw her, but I didn't 2 converse as deeply with her as often, but she was a 3 steady lady as far as I was concerned. I mean, I 4 never saw her being anything but loving and courteous. 5 Q. Well, you knew the lady and went to church with 6 her. There's been a suggestion that perhaps she put 7 some kind of religious pressure on her husband. Did 8 you ever see either her do anything or anything in her 9 behavior or character that would make you think that 10 she would do such a thing? 11 A. No. 12 Q. Did you ever see anything in his behavior that 13 would lead you to believe that he could be capable of 14 the things he did on March 3rd and 4th, 1993? 15 A. Absolutely not. 16 MR. BURKE: Excuse me, Your Honor. Objection, 17 calling for an opinion. 18 MR. VICKERY: May it please the Court, that is 19 precisely the opinion that I'm entitled to ask under 20 the Court's previous ruling. The order is very 21 specific on that. 22 THE COURT: Let's see it. 23 MR. VICKERY: I think Ms. Mangrum has it. I 24 have it right here, Your Honor. I have all of the 25 Court's orders. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 525 1 I have a whole stack of court orders, Your 2 Honor, and that one isn't here. Unless I just missed 3 it somewhere. 4 Your Honor, if I may, I don't want to delay the 5 Court's time and jury. Could I pass the witness 6 subject to getting the answer to my question, if I'm 7 entitled to further the Court's ruling. Thank you, 8 Judge. I'll pass the witness. 9 THE COURT: Mr. See. 10 MR. VICKERY: Your Honor, may I come back and 11 take back what I just said? 12 THE COURT: Any cross-examination, Mr. See. 13 MR. BURKE: Yes, Your Honor. 14 CROSS-EXAMINATION 15 BY MR. BURKE: 16 Q. Do you recall your last contact with Bill 17 Forsyth? 18 A. Physical contact? 19 Q. Any kind of contact. I believe it was via 20 telephone, wasn't it? 21 A. Yes. 22 Q. You had called him up because you hadn't seen 23 him in a while and wondered where he was keeping 24 himself? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 526 1 Q. And at that time Bill, Sr. told you over the 2 phone that he was in a deep depression? 3 A. No. I asked him -- I had asked him where he 4 had been and he said that he was coming out -- he had 5 some depression that he was coming out of it. He 6 didn't define it deep depression. 7 Q. Didn't he even describe how he was feeling to 8 you like being in a deep, dark cave and looking out a 9 small hole and he could barely see the light, wasn't 10 that the words he told you? 11 A. It was like coming out of a tunnel and finally 12 seeing the light again, he said. 13 Q. And did he, basically, didn't -- in that 14 condition didn't want to be out and seeing other 15 people? 16 A. That's basically what he said, yes. 17 Q. And this was a conversation at some point in 18 time before he went off to the Castle Medical Center? 19 A. Yes. 20 Q. And that's the last time you ever talked with 21 him? 22 A. Yes. 23 MR. BURKE: Thank you very much. 24 THE COURT: Anything more, Mr. Vickery? 25 MR. VICKERY: Your Honor, the only other thing PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 527 1 is I would like an answer to the question I asked him 2 before. With all the paper we've got, we can't seem 3 to lay our hands on that one -- 4 THE COURT: Well, you can recall him if you 5 find an order that supports that. Next witness. 6 MR. VICKERY: Okay. We call Mr. David 7 Capelouto. 8 Your Honor, may this witness just be excused? 9 I'm not going to ask him to come back from Maui for 10 that answer. 11 THE COURT: Any objection to the witness being 12 excused? 13 MR. BURKE: No, Your Honor. 14 THE COURT: Okay. Thank you. You're excused. 15 THE CLERK: Please raise your right hand. 16 DAVID CAPELOUTO, 17 called as a witness on behalf of the Plaintiffs, after 18 having been first duly sworn to tell the truth, the 19 whole truth, and nothing but the truth, was examined 20 and testified as follows: 21 THE CLERK: Please be seated. Please state 22 your name and spell your last name. 23 THE WITNESS: David Capelouto, 24 C-A-P-E-L-O-U-T-O. 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 528 1 DIRECT EXAMINATION 2 BY MR. VICKERY: 3 Q. Where do you live, Mr. Capelouto? 4 A. I live in Carlsbad, California. 5 Q. Were you acquainted with William Forsyth, Sr.? 6 A. Yes. 7 Q. How long did you know him? 8 A. Since 1945. 9 Q. Well, if my math is pretty good, from '45 to 10 '93 is nearly 50 years? 11 A. That's correct. 12 Q. Where were you and he when you first met? 13 A. We were in high school. 14 Q. What grade? 15 A. Tenth grade. 16 Q. Did you finish high school together? 17 A. Yes. 18 Q. And what was the nature of your friendship as 19 teenage boys in high school? 20 A. We were just fond of each other. Ran around 21 together a lot. 22 Q. What kind of guy was Bill Forsyth back then as, 23 say, a high school senior? 24 A. As a senior? 25 Q. Yes, sir. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 529 1 A. He was our class president, had a great sense 2 of humor, was a lot of fun, excellent student. Just a 3 great person. 4 Q. And after high school, how did you maintain 5 contact with him over the years? What happened? 6 A. Well, after high school, we both went to Los 7 Angeles City College together and then I went into the 8 Army. He went into the Air Force. And then he went 9 into the car rental business and I worked down the 10 street from him and he dragged me into the car rental 11 business and we worked together for many, many years 12 and we were just associated our whole lives together. 13 Q. Were either of you at the other one's weddings? 14 A. No. Bill got married in Illinois, if I recall 15 correctly, when he was in the Air Force. 16 Q. And after he and June married, did you have 17 occasion through the years to see them together as 18 couples? 19 A. Yes. 20 Q. How would you describe, just sort of in the 21 global picture, if you will, over the years, the 22 relationship between Bill and June Forsyth? 23 A. It was a normal married relationship. It was 24 fine. 25 Q. Were you a close enough friend of his that PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 530 1 whenever there would be some, say, anger or hostility 2 or all the things that we all have in our marital 3 relationship, he would share those with you? 4 A. Yes. 5 Q. And from time to time did he, in fact, share 6 them with you? 7 A. We never got into any really definitive 8 discussions, but once in a while he would say 9 something. 10 Q. Were you aware that at some point in the last 11 two or three years of his life, Bill and June went 12 through a troubled time in their marriage? 13 A. Yes, I was. 14 Q. Now, let me back up for a minute. I think the 15 evidence in this case already is that they moved to 16 Maui in 1990. Do you remember when he retired from 17 his auto rental business? 18 A. I think it was about 1985, if I recall 19 correctly. 20 Q. Someone else said '86. Were you in the 21 business with him at that time? 22 A. No. 23 Q. How did you become aware that he retired? 24 A. Oh, he told me. I mean, I used to see him 25 frequently. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 531 1 Q. Are you personally familiar with the 2 circumstances leading to his retirement? 3 A. Yes. I believe some -- either the airport, 4 which owned the property in which his business was 5 located was going to take the property and it was -- 6 he was getting up there close to 60, as I recall, and 7 he just decided to retire. 8 Q. In that period from '85 or '86, when he 9 retired, up until 1990, did you have occasion to see 10 him fairly regularly? 11 A. Yes. 12 Q. How did he cope with retirement? 13 A. He was fine. 14 Q. In what context would you see him in those 15 early retired years in L.A.? 16 A. Well, he used to come out to see me -- I have 17 an office in Anaheim, California a car rental company, 18 and he used to come out and see me at least once every 19 two weeks and we would have lunch and come over to the 20 house and, you know. I remember he took us to Miles 21 Square Park, which is in Orange County, where he flew 22 his airplanes, and we just kept in contact. 23 Q. Did he ever, in that four- or five-year period, 24 say something to you like, boy, I just can't hack this 25 retirement. I just can't do it, you know. Anything PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 532 1 like that? 2 A. Not at all. 3 Q. When he and June moved to Maui in 1990, did he 4 share with you the reason for that move? 5 A. I really don't recall, because I'm kind of 6 confused time wise. Was this after they went back 7 together? 8 Q. No, sir. I'm talking about when they first 9 moved to Maui. 10 A. Oh, he loved Maui and his son Billy was in Maui 11 and he wanted to be with him because they had 12 grandkids and it was a great place to retire. 13 Q. Now, after he moved to Maui, did you and he 14 remain in contact while he was on Maui and you were in 15 California? 16 A. Yes. He called me, like, every week. 17 Q. Every week throughout that period? 18 A. That's correct. 19 Q. There came a time, and we've heard about a 20 separation in '91 and another in '92. Were you 21 familiar with both of those circumstances? 22 A. I believe so. 23 Q. In both instances other testimony has 24 established that he left and came back to California 25 for some period of time, did you know that? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 533 1 A. Yes. 2 Q. Did he have a place to stay in California when 3 he went there? 4 A. I believe he owns some apartments in El Segundo 5 and I think he was staying there. 6 Q. Okay. Did you see him -- let's take the first 7 one in 1991. Did you see him when he and June were 8 separated in '91 and he was back in California? 9 A. Yes. 10 Q. And did he share with you where he was in terms 11 of his relationship at that point in time? 12 A. No. He just kind of inferred he was a little 13 unhappy. 14 Q. Okay. And are you aware of the fact that he 15 then came back and got back together with June on 16 Maui? 17 A. Yes. 18 Q. Now, in the summer of 1992, he left and went to 19 California again. Did you see him during the course 20 of that visit? 21 A. Yes, I did. 22 Q. I think there's no dispute that the dates are 23 approximately July of '92 to December the 7th of '92 24 when he's in California. Tell us what contact you had 25 with him when he was in California during that time PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 534 1 period. 2 A. Well, he frequently came to visit me at my 3 place of business, frequently came to my home, and 4 just a general association with friends, you know. He 5 just wanted to be -- we wanted to be together because 6 we were friends. We had a lot in common. We shared 7 our whole lives together and he was, you know, lonely. 8 We were a long ways away. He was living, I believe, 9 in El Segundo, like I said, and I lived in the city of 10 Orange at that time. 11 Q. Give us an idea of the distance there. 12 A. I would say it's about 40 miles. 13 Q. Okay. Now, when he first came back before June 14 joined him in October, did he mention to you the D 15 word, divorce? 16 A. He was thinking about it. Yes, he was thinking 17 about it. 18 Q. Did you see him throughout the fall as he was 19 in therapy with a man named Tom Brady and then as June 20 joined him together in that therapy? 21 A. I saw him when he was having therapy because I 22 believe the therapist was in Orange County somewhere 23 where I had my business and where I lived at the time, 24 and when he went to see his therapist, he would 25 normally come by to see us, my wife and I. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 535 1 Q. And were you aware that there came a point in 2 time in which June joined him in that therapy 3 together? 4 A. No, I don't recall that. 5 Q. Tell us at the conclusion, at the end of the 6 therapy sessions, what he shared with you as his 7 friend about his relationship with June at that point 8 in time. 9 A. I can't pinpoint the date in time. I just know 10 that before he went back to Maui the last time I had a 11 conversation with him in which he said everything was 12 great and he was going back to Maui to be with his 13 wife and family, and that's the way he felt. 14 Q. Did he even share with you -- I'm sorry to ask 15 you this if it's embarrassing here in the courtroom, 16 but did he share with you the kind of thing that a man 17 might say to another man about the sex relationship 18 with his wife? 19 A. Yes. He had taken a trip, I believe, up North 20 and when I was talking to him, he said, "Even the sex 21 was great." And we never talked about sex with our 22 wives before, so it was kind of an unusual statement. 23 Q. Mr. Capelouto, from the time he came back to 24 Maui on December the 7th, 1992 until his death, did 25 you ever have occasion to see or talk to your friend PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 536 1 again? 2 A. No. 3 Q. In your 50 years of knowing this man, did you 4 ever see or observe anything he said or did that would 5 make you believe that he was capable of the acts that 6 he did on March 3rd and 4th, 1993? 7 MR. BURKE: Objection, Your Honor. No 8 foundation. Calling for an opinion. 9 THE COURT: Sustained. 10 MR. VICKERY: May I be heard at side bar on 11 this, Your Honor? 12 THE COURT: Not at this time. 13 MR. VICKERY: Okay. I'll pass the witness 14 subject to -- 15 THE COURT: You may recall him if you wish. 16 MR. VICKERY: Thank you. 17 CROSS-EXAMINATION 18 BY MR. BURKE: 19 Q. Good afternoon, Mr. Capelouto. 20 A. Good afternoon. 21 Q. You've come all the way down here from 22 California just to testify at this trial? 23 A. Yes, sir. 24 Q. I want to take you back to 1992, during the 25 time that your friend Bill Forsyth was back in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 537 1 California. You understood at that time that he was 2 actually separated from his wife? 3 A. Yes. 4 Q. And you knew he was having emotional problems 5 and had sought out some kind of professional 6 counseling because of those emotional problems? 7 A. I didn't know he was having emotional problems, 8 but I do know that he was seeing a therapist. 9 Q. You actually, in the summer or during this 10 period of the summer and fall of 1992, observed a 11 personality change about your friend Bill? 12 A. No, I don't think I noticed that. 13 MR. BURKE: Your Honor, I would like to have 14 his deposition opened, please. 15 Q. When you have that before you, could you open 16 to Page 44 of your deposition, please? Are you with 17 me on Page 44? 18 A. Yes, sir. 19 Q. And would you follow me along here. I'm going 20 to start reading the questions and answers starting at 21 Line 13. 22 "QUESTION: Now, there has been testimony that 23 at some point after his retirement that Mr. Forsyth 24 underwent some kind of personality change. Did you 25 see that?" PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 538 1 And you replied, "I didn't see it until they 2 had separated and he came back to California, and 3 where he was always generally up, he was down and sad 4 and no matter how much I tried, I couldn't seem to 5 alter that situation." 6 That was your testimony when your deposition 7 was taken in Los Angeles? 8 A. Yes. 9 Q. And that was taken just about a year and a half 10 ago in September of 1987 (sic)? True? 11 A. Yes. 12 Q. And did you, by the way, in preparation for 13 your testimony here today, review your deposition? 14 A. No, I did not. 15 Q. You had an opportunity to review it after it 16 was taken, however, didn't you, to make corrections? 17 A. Yes, I probably did. I don't even recall that. 18 Q. This is certainly an area you didn't correct 19 about the personality change? 20 A. No, apparently it's true. 21 Q. You had a little better memory of the events 22 back in '97 than you do right now? 23 A. Yes. Now I do. 24 Q. Now, is it true that Bill Forsyth didn't tell 25 you specifically why they had separated, but he did PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 539 1 tell you that he had been thinking about separating 2 for a long time, maybe three to five years, and he was 3 separating because he was unhappy? 4 A. That's true. 5 Q. Did Bill -- you knew his wife June, the two in 6 the past, you had had contact with both Bill and June 7 Forsyth, had you not? 8 A. Yes. 9 Q. And didn't there come a time when Bill asked 10 you if you had ever observed, when they were together, 11 that June seemed to take an opposite point of view no 12 matter what Bill said and no matter how trivial his 13 statement? 14 A. Yes. 15 Q. And Bill asked you, have you made this same 16 kind of observation or am I just imagining things? 17 A. Yes, he did ask me that. 18 Q. And you agreed that, yes, I noticed that same 19 thing myself? 20 A. That's true. 21 Q. And he indicated that that kind of 22 confrontation with his wife constantly taking 23 exception to what he was saying no matter how trivial, 24 made him unhappy, true? 25 A. Well, that's true, but this took place, gosh, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 540 1 when we went to Lake Tahoe. That was in the eighties. 2 Many, many, many years ago. 3 Q. Wasn't this something that he was talking to 4 you about during the summer of 1992? 5 A. No. 6 Q. Now -- well, Bill did share with you during 7 this period of 1992 that he had separated because he 8 was unhappy with his marital situation before he went 9 through this counseling; is that true? 10 A. Yes. 11 Q. And that's why he was in Los Angeles to get 12 away from his wife in Maui? 13 A. I'm not so sure that's necessarily the truth. 14 Bill liked being with his friends, like myself, and 15 another friend, Steve Evangelotus where he could be a 16 male and just bond, and he liked being with his 17 friends. His just getting away from Maui might have 18 been part of the problem. 19 Q. But you also knew that another part of the 20 problem was that he was wanting to get away from his 21 wife at that point in time because he was unhappy? 22 A. Well, he had always mentioned that he had 23 thought about leaving his wife, yes. 24 Q. And at that point in time he was talking about 25 the possibility of even getting divorced? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 541 1 A. He had been talking about getting a divorce for 2 years and years and years. 3 Q. Because of his unhappiness with his wife? 4 A. Apparently so. 5 Q. Among other things, did he also talk to you 6 about the differences in the religious approach that 7 his wife had compared to his own feelings about 8 religion? 9 A. Only in the context that she was more religious 10 than he was and took a more active role in the church 11 and her life in religious activities than he did. 12 Q. And you had observed that from knowing both of 13 them from clear back when they lived in California? 14 A. Yes. 15 Q. That she was constantly engaged in religious 16 activities where he was more interested in his 17 business and other non-religious pursuits? 18 A. Correct. 19 Q. And you understood that after the move to Maui 20 that she still continued her religious interests with 21 the same intensity? 22 A. Yes. 23 Q. Now, your friend Bill Forsyth was quite a 24 business success, was he not? 25 A. Yes, he was. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 542 1 Q. And I think you told us back in the time of 2 your deposition that he had been so successful that he 3 could have actually retired by the time he was 35 4 years old; is that true? 5 A. Yes, I believe that is true. 6 Q. And that he enjoyed the business world? 7 A. Yes. 8 Q. And after he retired and went to Maui, he was 9 actually separated from that world, was he not? 10 A. Well, he was, but he told me many times he 11 enjoyed retirement. 12 Q. But he was missing the business world, was he 13 not? 14 A. No, I don't believe so. 15 Q. You also knew from your long acquaintance with 16 Bill that he had had problems with alcoholism many 17 years before; is that true? 18 A. Yes, that's true. 19 Q. And he had overcome that and was at least a 20 recovering alcoholic? 21 A. Oh, I don't think Bill had a drink for the last 22 15 or 20 years of his life. 23 Q. Now, did he also tell you about his father, 24 Bill's father? 25 A. We had some conversations about him. I don't PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 543 1 recall them, but they were never any heavy 2 conversations. 3 Q. Did you understand, for example, that his 4 father had been a salesman and a very successful 5 salesman? 6 A. I knew his father was a salesman. I don't know 7 if he was successful or not. 8 Q. And that he travelled a lot, he was away from 9 the family a lot? 10 A. Yes, I do recall that. 11 Q. And did Bill tell you that after his father 12 died that they had heard that he had opened bank 13 accounts in various places around the country, but 14 they never could find them? 15 A. Yes, he did tell me that. 16 Q. Now, after -- well, let me ask you this, too: 17 Were you aware that over the years there had come, 18 from time to time, periods in Bill's life where he had 19 affairs or flings with other women? 20 A. Yes. 21 Q. And these were usually short relationships with 22 other women? 23 A. Yes. 24 Q. And sometimes your friend, I think you 25 mentioned him a minute ago, Evangelotus, is that his PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 544 1 name Mr. Evangelotus? 2 A. Yes, Steve Evangelotus. 3 Q. He would provide a place for Bill, Sr. to meet 4 these other women? 5 A. I don't know that for sure. 6 Q. Didn't he tell you that, that Bill would use 7 his place for these flings from time to time? 8 A. He may have. 9 Q. That's what you told us in your deposition. 10 A. Okay, then I did. 11 Q. Now, did Bill also tell you that there came a 12 time in his life where his wife June, and I believe 13 this was around 1988, had given him a list of 14 grievances, grievances that she had towards him? 15 A. Yes. 16 Q. And that he was rather surprised and rather 17 stunned listening to this list of grievances that his 18 wife had been harboring all these years? 19 A. Yes. 20 Q. And that hearing about those grievances was 21 very traumatic for Bill; is that true? 22 A. I don't know if it was traumatic or not. Bill 23 was a very logical person, and he -- I don't know if 24 it was traumatic or not. He told me that he didn't 25 interrupt her at all. That he was amazed at what she PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 545 1 said, and he listened to every single word because he 2 didn't want to say something that would upset her at 3 the time. 4 Q. But it came as all a big surprise to him? 5 A. Yes, it did come as a surprise to him. 6 Q. Now, you were aware also that June, his wife, 7 had suffered from depression early in their marriage? 8 A. Yes, I was. 9 Q. That was back around 1961 or so? 10 A. Yes. 11 Q. And you thought that she had a type of 12 breakdown even at that point in time? 13 A. She may have. She may have, but I knew she had 14 depression at that time. 15 Q. And that actually one of the remedies that they 16 did to help that out is they moved to a smaller house 17 so she would have less pressure keeping a bigger 18 house? 19 A. Yes, that's correct. 20 Q. Now, after Bill came back to Maui from being in 21 the Los Angeles area in 1992, you never really saw him 22 again before his death? 23 A. When he went back to Maui, no, I never saw him 24 again. 25 Q. I gather, though, you talked with Bill, Jr. at PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 546 1 least about the fact of Bill's death? 2 A. Yes, I did. 3 Q. And did son Bill tell you that his father had 4 told him that sometime before he died that he was 5 having crazy thoughts and that he needed to go see a 6 doctor? 7 A. Yes, that's the conversation I recall. 8 Q. And did he tell you any more about the 9 circumstances of these crazy thoughts that he was 10 having that made him feel that he had to go see a 11 doctor? 12 A. No. 13 Q. And during that period of time, I think we know 14 now from medical records, that Bill, after he returned 15 to Maui, suffered from depression. Were you in 16 contact with him at all during this period of his 17 depression? 18 A. No. 19 Q. And you didn't have phone calls or anything at 20 that time? 21 A. No, I did not. 22 MR. BURKE: Thank you very much. 23 THE COURT: Mr. Vickery. 24 MR. VICKERY: Thank you, Your Honor. If I may, 25 just a couple on redirect. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 547 1 REDIRECT EXAMINATION 2 BY MR. VICKERY: 3 Q. Mr. Burke asked you about Bill Forsyth over the 4 course of years saying things about getting divorced, 5 being interested in other women. I want to ask you 6 again, sir, what is the last thing that your friend of 7 50 years ever said to you about the nature of his 8 relationship with his wife? 9 A. He said it was great, even the sex. 10 Q. And I want to ask you in response to his 11 questions about the retirement years. Even though he 12 wasn't in the car business, did Bill Forsyth have 13 other active business interests that kept him going 14 and making money in those years? 15 A. Yes. He was busy. He had many, many 16 investments. He owned property all over the place. 17 He had hobbies. He was never bored. He was a busy 18 man. 19 MR. VICKERY: Thank you, Mr. Capelouto. 20 MR. BURKE: Nothing further, Your Honor. 21 THE COURT: Thank you. You're excused. 22 MR. VICKERY: We call William Klein. I believe 23 Ms. Hall stepped out to get him, Your Honor. 24 THE CLERK: Please raise your right hand. 25 WILLIAM KLEIN, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 548 1 called as a witness on behalf of the Plaintiffs, after 2 having been first duly sworn to tell the truth, the 3 whole truth, and nothing but the truth, was examined 4 and testified as follows: 5 THE CLERK: Please state your name and spell 6 your last name. 7 THE WITNESS: It's William Klein, K-L-E-I-N, 8 but I go by Bill. 9 DIRECT EXAMINATION 10 BY MR. VICKERY: 11 Q. In here, in this room, I'll call you Mr. Klein, 12 okay, sir? 13 A. Okay. 14 Q. Mr. Klein, where do you live? 15 A. I live in San Pedro, California. 16 Q. How long have you lived there? 17 A. About 18 years. 18 Q. And are you a blood relative of Bill Forsyth? 19 A. Yes. He's my cousin. His mother and my dad 20 were brothers and sisters. 21 Q. So, basically, you're first cousins, I guess, 22 then? 23 A. First cousins, right. 24 Q. Have you known him all of your life? 25 A. I have known him, I think, probably from about PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 549 1 maybe 14 or 15 on. 2 Q. How close were you and he in age? 3 A. I think we were the same age. I'm 72, and I 4 believe Bill was maybe 71. 5 Q. Now, Mr. Klein, are you retired now? 6 A. I'm retired, yes. 7 Q. From what kind of work are you retired? 8 A. It's a retail business, Carter Holly Hale. 9 They were the Broadway department stores in Los 10 Angeles; Neiman Marcus, Burgoff Goodman, Holt Rentru, 11 about a billion dollar corporation of different 12 department stores. 13 Q. And what did you do for that company when you 14 were working? 15 A. I was the chief financial officer for the 16 last -- probably the last ten years. 17 Q. When did you retire? 18 A. About -- I think it was about -- this July it 19 will make 13 years. 20 Q. Let me take you back, if I may, to your 21 boyhood. 22 A. Okay. 23 Q. Give us your recollections of the boy Bill 24 Forsyth, Sr., your first cousin. 25 A. It goes back to the time my mother -- my dad PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 550 1 was dead at this time, and my mother got along well 2 with his sister, Ann Grace, and when we came to -- my 3 mother used to like to come to Long Beach, and 4 whenever we went to Long Beach, she would get in touch 5 with my -- with Grace and that's where I met Bill, 6 about that age. That's when I can first remember the 7 association with him. 8 And when we would go to his house, we would 9 usually go to Knott's Berry Farm for lunch and go do 10 all the things that were at Knott's Berry Farm, when 11 it was really a berry farm, not what it is now. You 12 know, I can remember these things because I have 13 pictures of these things and I can -- I can see us 14 sitting on the covered wagon and our picture taken 15 with my brother and myself and Bill and his dad, too, 16 at that point. 17 So that was the relationship I had. Even 18 though we lived in Sacramento, when we would come to 19 L.A., we would always spend some time with them 20 because -- she was a good aunt and would send us 21 Christmas presents and that's what she did. 22 Q. Let me leap you forward then from your boyhood 23 to the 1970s to the 1980s -- 24 A. Well -- 25 Q. Let me ask the question, if I may. Did you and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 551 1 your wife have social relationships with your cousin 2 Bill Forsyth and his wife June through the last 15, 20 3 years of their lives? 4 A. Yes. What happened when I was transferred back 5 to Los Angeles, remembering Grace, and I don't have 6 very many relatives on that side of the family, we got 7 in touch with Grace and so she invited us to come over 8 to her house, which we did. 9 Q. Let's me stop you a minute. Who's Grace? 10 A. That's my aunt. 11 Q. Is that Bill's mother? 12 A. Yes, Bill's mother. 13 Q. Bill, Sr.'s mother? 14 A. Yes. Sorry. 15 Q. That's okay. None of us knew. 16 A. Okay. And so June was there, Bill -- my cousin 17 Bill's wife. Bill wasn't there. And so we spent the 18 whole afternoon there, and I got to know June real 19 well. She was just our kind of people and she was 20 about the same age as we were and a neat friendship 21 grew up between us. 22 Now, you've got to remember I haven't seen Bill 23 in a long time, and so June suggested that we get 24 together, and so it seemed to be the right thing to 25 do. I probably wouldn't have known Bill if I saw him PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 552 1 in the street, but we did. They invited us up to 2 their house for dinner, so that started our friendship 3 with them here in the L.A. area. 4 Q. Now, over the course of the next years, how 5 many years were there when you and your wife 6 associated as couples with Bill and June? 7 A. Well, it was on and off that whole period of 8 time going back to 17, 18 years. Now, we weren't the 9 kind of friends that would go out every weekend 10 together, but we would maybe go visit -- well, we went 11 with him to his property that he had in the desert and 12 stayed there with them. 13 I got to know Bill pretty well during some of 14 these periods of time. We came from the same type of 15 background. His mother and my dad was from a mining 16 company, from an old -- they weren't wealthy people, 17 and Bill had done pretty well and I had done pretty 18 well for myself, and so we had a lot in common and a 19 lot to talk about, going back into those old times, 20 and so our relationship developed. He was just a nice 21 guy and June was a sweet gal and we enjoyed being with 22 each other. 23 Q. Mr. Klein, did you have occasion -- you talked 24 about going to a place in the desert, but occasions 25 when you and your wife and Bill and June would PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 553 1 actually go off somewhere and stay for overnight or 2 several nights together? 3 A. That's what we did down in the desert when we 4 went there, but normally we were close enough to them. 5 We were about an hour and a half drive, hour and 6 twenty minutes drive and many times we would go to 7 their house in Malibu. It was a beautiful house on 8 the top of the hill, and Bill was a gracious host when 9 we would go see him. It was just fun to be with them. 10 It was fun to be with his wife and we had a chance to 11 meet their children. 12 Q. How -- from that perspective, how did you 13 perceive them insofar as a couple, their relationship 14 with one another? 15 A. Well, it was a lot like my wife and Shirley -- 16 Shirley, my wife, and myself. We had a good time 17 together. I didn't notice any problems in their lives 18 except maybe down towards -- well, maybe six, seven 19 years ago, somewhere in there, there was a little rift 20 going on. 21 June didn't want to move to the Hawaiian 22 Islands and Bill did. He wanted to build a big house 23 here and that -- I don't know whether that's really a 24 problem or not, because Bill said, you know, "Bill, 25 I've got more money than I can ever spend," and you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 554 1 know, he wanted to come here and June was hesitant for 2 some reason. I don't know why. So that was the only 3 thing that I knew -- it was pretty minor because 4 eventually, if I can move ahead, eventually that 5 wasn't a problem anymore because I can remember 6 talking to June and telephoning her and she was 7 telling me that, you know, she was happy and she had 8 made up her mind that that's what she wanted to do was 9 to move to the island and so the decision was made 10 that that's what they were going to do. 11 Q. Did you ever have -- 12 A. I know after she moved over and that transition 13 took place, then Bill would call us periodically and 14 want us to come because he had the house built at this 15 time and he said, "Bill, why don't you and Shirley 16 come over. I've got this apartment downstairs, and 17 gee, you guys can have your own things and we would 18 really love to have you come." 19 Q. Did you ever make it? 20 A. Never made it. I think, basically, because we 21 have our own things that we do. Well, you're retired, 22 Bill. You sure had plenty of time to do that. You're 23 involved with your family with all the things around 24 you and as much as we wanted to go, we didn't. 25 Q. Mr. Klein, you want to pour yourself some PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 555 1 water? 2 A. No, that's fine. 3 Q. In the fall of 1992, evidence in this trial has 4 come out that Bill and June were separated for a 5 while. He went back to California and then later she 6 came and joined him and they were in marital therapy. 7 My question to you is, were you aware of those things 8 then and have any contact with them then? 9 A. No. No. The only thing I was aware of was her 10 not wanting to move for a period of time, but that 11 decision, as far as I knew, had been bridged. Because 12 when I talked to June or I talked to Bill, June was 13 very happy to go back there, so if they were separated 14 or anything going on, I wasn't privy to that 15 information. Bill, we're separated. So I didn't know 16 if that was going on. Because all I knew is that June 17 was happy there. Bill was happy there, and they 18 wanted us to come. 19 Q. Okay. 20 A. So that was my relationship with him. 21 Q. I want to ask you about one other topic and 22 then I'm done. It's a topic Mr. See has questioned 23 Bill, Jr. about and it's the subject of religion. 24 A. Yes. 25 Q. Did you, from time to time, have discussions PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 556 1 with either June or Bill about that subject? 2 A. Yes. I sure did. 3 Q. And tell us, if you would, whether your own 4 sort of religious views, if you will, were more in 5 line with June's or Bill's or just where you fell in? 6 A. Well, I don't know how -- okay. One of the 7 reasons I think that I was quickly akin to Bill's wife 8 was because, basically, in our religious beliefs, 9 we're exactly the same. 10 Q. You and June? 11 A. Myself and June. So that was the thing that 12 brought us together. There's something about if you 13 have common backgrounds, such as that. I mean, man 14 your kinship and so we both felt strongly about those 15 principles in our life. 16 Q. Now, let me stop you and ask you something. 17 You just told us you and she had the same religious 18 faith. Did you ever know her in 18 years or so to 19 lean on her husband, to twist his arm, to try to, in 20 any way, to coerce, force, or pressure him into having 21 the same religious beliefs that she had? 22 A. No. You know, when I visited Bill, I remember 23 at our first religion -- our first visit to him, you 24 know, talking about God and there was no doubt in my 25 mind that Bill believed in God. You know, it was -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 557 1 he knew all the stories about Jesus. He had gone to 2 church with June, so pushing him -- I honestly don't 3 know how to relate to that -- 4 Q. Is she the kind of woman that would do that? 5 Is there anything about her character that would make 6 her do that or did you see such a thing? 7 A. I never saw her doing it and in her character, 8 knowing June the way I know her and knowing her 9 religious beliefs, it wouldn't be characteristic with 10 her beliefs to be pushy about something that is 11 something that normally would fall within the -- she 12 might share things with him and share things out of 13 the Bible with him and maybe they might talk about 14 going to church or a sermon or something, but pushing 15 him, I don't feel qualified to answer that because I 16 never experienced that with them. It wasn't that kind 17 of relationship around us. It was a good 18 relationship. There was never any doubt that Bill 19 believed in God. And so does that make sense to you? 20 Q. Yes, sir, it does. There's been testimony 21 already from Bill, Jr., I believe brought out from 22 Mr. See in his deposition, there came a point in time 23 in which Bill, Sr. had some kind of personal profound 24 religious experience. 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 558 1 Q. Were you aware of that at the time? 2 A. No. I only became aware of that after Bill -- 3 I only became aware of that when Bill, Jr. called me 4 and told me about the death. 5 MR. VICKERY: Thank you, Mr. Klein. 6 THE COURT: Any cross-examination? 7 MS. MANGRUM: Yes, Your Honor. 8 CROSS-EXAMINATION 9 BY MS. MANGRUM: 10 Q. Good afternoon, Mr. Klein. My name is Michelle 11 Mangrum. I'm one of the attorneys for Eli Lilly and 12 Company. We've never spoken, have we? 13 A. No. 14 Q. You're aware, though, however, from your wife, 15 that Mr. Burke's partner, Pat Aburano, tried to call 16 you several times -- 17 A. Right. 18 Q. -- and asked you to call her back collect? 19 A. Right. 20 Q. But you didn't do that? 21 A. No, I didn't. 22 Q. I believe you testified Mr. Forsyth was your 23 cousin; is that correct? 24 A. That's correct. 25 Q. Okay. And you felt a kinship and closeness PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 559 1 with his wife June as well? 2 A. Yes. Yes. 3 Q. You considered her, in fact, a sister of sorts, 4 did you not? 5 A. Yes, I would say that would be true. 6 Q. And have you kept in contact with Billy and 7 Susan Forsyth since their parents death? 8 A. Shamefully, no. I know I called a couple of 9 times about trying to get together. You know, we 10 wanted to have her over for Thanksgiving and do some 11 of those things, but, you know, she's younger than we 12 are and she runs in a different circle. It was just 13 difficult to get together with her. It was really the 14 dad and the mom that my association was with. 15 Q. Now, you mentioned a minute ago in response to 16 Mr. Vickery's questions that you and Mrs. Forsyth 17 shared the same religious beliefs; is that correct? 18 A. That's right. 19 Q. And one thing that concerned her deeply enough 20 that she shared it with you was Mr. Forsyth's 21 salvation. Didn't you have discussions with her about 22 that? 23 A. Yes, I did. 24 Q. And she told you, in fact, her biggest concern 25 was whether her husband, Bill Forsyth, had really PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 560 1 truly accepted Jesus as his Savior. Did you have that 2 discussion with her as well? 3 A. I don't know whether that would necessarily be, 4 quote, her biggest concern. 5 Q. I'm going to ask you this then, sir, did you 6 receive a questionnaire concerning Bill and June 7 Forsyth from the Forsyth children in 1994? 8 A. You know what, I can't remember receiving one. 9 Can I ask my wife? I got a bum memory, she's out 10 there. 11 Q. No, I think I have something that might help 12 you with that. 13 MS. MANGRUM: May I approach the witness, Your 14 Honor? 15 THE COURT: You may. 16 Q (By Ms. Mangrum) I'm going to ask you just to 17 look at that and tell me if that's your handwriting. 18 A. Well, that sure looks like my wife's 19 handwriting. 20 Q. That's your wife's handwriting, not yours? 21 A. No, that's my wife's handwriting. Sorry about 22 that. 23 Q. When the answers are written, "My mother 24 brought us to Long Beach," would that be your wife's 25 mother or was she writing your response? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 561 1 A. No, that was my mother. 2 Q. So while it's written in her hand, these are 3 your responses? 4 A. Yeah, it's her printing. She prints nicer than 5 I do. 6 Q. Okay. Let me refer you, sir, to -- 7 A. Well, this is a long time ago. 8 Q. I understand. But let me refer you to Question 9 19. The second line. 10 THE COURT: I want you to go back to question 11 him. 12 THE WITNESS: Can I read it to myself? 13 Q (By Ms. Mangrum) Certainly. 14 A. Okay. What's your question? 15 Q. My question was, isn't it true that one of 16 Mrs. Forsyth's biggest concerns was whether Bill was a 17 born-again believer? 18 A. Well, I sure wrote that down here. I had the 19 opportunity to talk with June -- is it all right if I 20 read it? 21 Q. Certainly. You can read that. 22 A. Sure. "I had the opportunity to talk to June 23 on the phone more than to Bill. I believe one of 24 June's biggest concerns was whether Bill was a 25 born-again believer. Bill was very domineering" -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 562 1 yeah, he's a "very domineering husband." That's as 2 far as it goes. 3 Q. That's fine. You can set that aside if you 4 will for a minute. I have some other questions not 5 related to that. 6 A. Okay. 7 Q. You did just mention in that last sentence you 8 wrote that Mr. Forsyth was a very domineering husband. 9 Is that your recollection of his personality? 10 A. Yeah, so am I. 11 Q. And he -- in fact, when you were on his turf, 12 you did things his way? 13 A. Yes. 14 Q. And he was domineering and assertive in his 15 relationship with his wife as well, in fact, he called 16 all of the shots in that relationship up to a point. 17 Would you agree with that, sir? 18 A. I would say that would be true and that would 19 also be true of me. 20 Q. And in that -- 21 A. I'm not trying to water this down in any way. 22 I'm not trying -- 23 Q. Certainly. I understand. 24 A. Because that's what men are. Sometimes we're 25 domineering and my wife would have to testify to that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 563 1 Q. But in Mr. Forsyth's relationship with his 2 wife, there came a point where that was no longer the 3 way she wanted to do things. She started to say no to 4 his domineering and to making all the decisions, did 5 she not? 6 A. Gee, you know, that -- whether that's been 7 erased from my memory or I don't recall that because 8 I -- I'm having difficulty in thinking back that far. 9 Q. Could you look at Page 4, Question 16, and the 10 question there is, "Has Bill ever talked to you about 11 having hostile feelings to others or to himself?" And 12 you say, "No, however," and could you read the rest of 13 your response there to the jury, please? 14 A. Which one? 15 Q. Sixteen. 16 A. Let's see. "However, before they moved to 17 Maui, we had some long talks about his relationship 18 with June. He talked about having more money." 19 That's what I told you. "He had more money than he 20 could possibly spend. I believe that Bill called all 21 the shots and June" -- that's the same thing I said 22 before. "I believe Bill called all the shots and June 23 was starting to say no." 24 Q. Thank you, sir. 25 A. Okay. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 564 1 Q. And I believe your testimony a bit earlier was 2 the last time you saw Bill Forsyth was before he moved 3 permanently to Maui in 1990? 4 A. Yeah. It seems that that was true, yes. Is 5 that wrong, too? 6 Q. Not that I know of. 7 A. Okay. Four I had right. "Approximately six 8 months before his death, he called and wanted us to 9 visit." 10 Q. And in the fall of 1991 and in 1992, after he 11 had moved to Maui, but when he had separated from June 12 and came back to L.A. for extended periods of time, 13 you didn't talk with him during any of those times? 14 A. You know, I can't remember talking to him about 15 that. Now, did I say I did in here? 16 Q. You know, if it would help you, I can remove 17 that -- 18 A. Yeah. 19 Q. -- so you are not distracted by it. 20 MS. MANGRUM: May I, Your Honor? 21 THE COURT: Yes. 22 THE WITNESS: What is she going to do? 23 MS. MANGRUM: I'll just take that. 24 Q. So you didn't see him since he moved to Maui, 25 that is, Mr. Forsyth? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 565 1 A. No, I don't believe I did. I might have talked 2 to him on the telephone, but I can't recall. 3 Q. So the last time you talked to him on the phone 4 was approximately six months before he died; is that 5 correct? 6 A. You know, I wouldn't swear to that. I can't 7 relate to that time. That was a long time ago. So 8 whether it was during that period that he wanted us to 9 come over, so I assume -- I don't know if it was six 10 months before he died or less than that. I can't 11 pinpoint that. 12 Q. Did you know there came a point in December of 13 1992 or early January and early February 1993 where 14 Mr. Forsyth really felt he was losing control of his 15 life? Did you know that? 16 A. No. 17 Q. Does that sound at all like the in-control, 18 take-charge Bill Forsyth that you knew? 19 A. You know, you're making more of that than what 20 it really is. I think you can ask any man in here -- 21 Q. Excuse me, sir. I just need you to answer my 22 questions, and if Mr. Vickery wants to follow up -- 23 A. Okay. 24 Q. -- he'll happily ask you those questions. 25 A. All right. Sounds fair. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 566 1 Q. Did you hear at any time that during late 2 December or January or early February 1993 that 3 Mr. Forsyth had feelings of helplessness and 4 hopelessness? 5 A. No. 6 Q. Did you hear at any time that he felt he was 7 absolutely unable to take care of himself or take care 8 of his family members? 9 A. Absolutely not. 10 Q. And does that sound like the Bill Forsyth you 11 knew, someone who would be expressing thoughts that 12 they could not care -- 13 A. No. 14 Q. -- for himself? 15 MS. MANGRUM: Okay. Thank you, Mr. Klein. I 16 don't have any other questions. 17 THE COURT: Mr. Vickery. 18 MR. VICKERY: Just one, Your Honor. May I 19 approach the witness? 20 THE COURT: You may. 21 REDIRECT EXAMINATION 22 BY MR. VICKERY: 23 Q. Did she take away your cheat sheet there? 24 Would you just read on Page 4, Question 22, what you 25 said back when you filled out that questionnaire PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 567 1 several years ago when they moved to Maui? 2 A. "When June and Bill moved to Maui, on a scale 3 of one to ten, I would have to believe their 4 relationship was a nine plus." That's good. 5 MR. VICKERY: Thank you, sir. That's all I 6 have. 7 MS. MANGRUM: No further questions, Your Honor. 8 THE COURT: Thank you. You're excused. 9 THE WITNESS: Thank you. 10 THE COURT: The Court will meet with counsel at 11 side bar for a minute. 12 (Whereupon, the following proceedings were had 13 at side bar out of the hearing of the jury.) 14 THE COURT: Do you know how long it's going to 15 take do this Daubert hearing? 16 MR. VICKERY: I would think no more than 30 or 17 40 minutes. That depends on how many questions the 18 Court has or how many Mr. See has, but I'm prepared to 19 go forward. I have one other witness, I understand, 20 I'm preparing to go forward. 21 THE COURT: I'm wondering whether I should 22 excuse the jury for the day. 23 MR. VICKERY: My inclination is yes, Your 24 Honor. 25 THE COURT: What do you think, Mr. See? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 568 1 MR. SEE: That sounds reasonable, although 2 Mr. Vickery says he has another witness. 3 THE COURT: Oh, you have another witness? 4 MR. VICKERY: Yes, I do at the Daubert hearing. 5 THE COURT: Pardon me? 6 MR. VICKERY: At the Daubert hearing. 7 MR. SEE: Could I ask who that would be? 8 MR. VICKERY: You could, but it's not my intent 9 to tell Mr. See that at this point, Your Honor, unless 10 I'm directed to by the Court. 11 THE COURT: So ordered. 12 MR. VICKERY: A woman by the name of Candace 13 Pert. 14 MR. SEE: I have no idea who that is. 15 MR. VICKERY: He will learn shortly as will the 16 Court, Your Honor. 17 THE COURT: Okay. 18 (Whereupon, the following proceedings were had 19 in open court in the presence of the jury.) 20 THE COURT: At this time we're going to take a 21 15-minute break, but we're going to let the jury go 22 for the day. So, you may leave at this time, but 23 please be back at 9:00 tomorrow morning. 24 (Whereupon, a recess was taken at 2:25 p.m.) 25 (Whereupon, the following proceedings were had PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 569 1 in open court out of the presence of the jury.) 2 THE COURT: Okay. Mr. Vickery, you want to 3 proceed? 4 MR. VICKERY: I do, Your Honor. Would it help 5 the Court if I took two or three minutes just to set 6 the stage or call the witness or would you rather I do 7 that first, call the witness first? 8 THE COURT: No. If you want to set a stage, go 9 ahead. 10 MR. VICKERY: Thank you. 11 Your Honor, this hearing was precipitated by 12 the filing, at least the handing to the Court in 13 chambers, of a second declaration from Dr. Herschel 14 Jick. Just to set the stage procedurally, there is no 15 motion pending as to which that declaration would be 16 appropriate. There's a suggestion in the covered 17 pleading that that declaration, in some way, could be 18 used in support of an entry of a judgment as a matter 19 of law, but under Rule 50a, it says, "That a judgment 20 as a matter of law may be entered only after a party 21 has been fully heard on an issue." So we're still 22 putting on evidence in this jury trial. 23 However, in chambers Mr. See said, well, it's 24 really a Rule 104 issue, and under Rule 104 of the 25 Federal Rules of Evidence, of course, the Court is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 570 1 permitted to determine issues of relevance and 2 admissibility outside of the presence and hearing of 3 jury. So I think that what we're here for is what is 4 coming to be known as a Daubert or Daubert hearing, 5 depending on whether you want to pronounce those 6 people's names correctly or the way they sound or are 7 spelled. And we understand that it is our burden to 8 proceed, and we are. 9 What I intend to do is put on -- without 10 putting on my entire case in that regard, put on 11 sufficient evidence, I think, that will satisfy and 12 assure this Court that it is on sound ground in 13 admitting the testimony of Dr. David Healy. And God 14 forbid, should anyone in the Ninth Circuit ever look 15 at it, I think it will persuade them as well, but we 16 are not here in the procedural context of a motion for 17 summary judgment with all that that implies. 18 Having said that, I would like to call to the 19 stand Dr. Candace Pert. 20 MR. SEE: Your Honor, while this doctor comes 21 to the stand, I want to object in the most strenuous 22 terms possible. As the Court knows, I learned of the 23 identity, by name only, of this witness about 10 or 15 24 minutes ago and Mr. Vickery didn't even want to tell 25 me that. I have no idea in what field of expertise PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 571 1 this doctor has. The doctor's never been disclosed in 2 any way. There's been no report. There's been no 3 discovery, no disclosure of any kind, so I stand here 4 not having any idea what this particular witness may 5 or may not say, completely unprepared to make any 6 attempt to cross-examine the witness. Indeed, I have 7 no idea what she will opine on because her opinions 8 have never been disclosed, so I object to the witness 9 testifying. 10 I think the Federal Rules provide that we 11 simply don't proceed by surprise and by ambush, which 12 is exactly what this is. It is unfair in the grossest 13 way to my client. The dispute that has been before 14 the Court ever since the motion for summary judgment 15 has been filed is whether the methodology employed by 16 the plaintiffs' witnesses can pass the Daubert test 17 based upon the way they testified about their 18 methodology, including what they disclosed in their 19 reports and how they responded to questions at their 20 depositions. 21 We know what that is. We have had several 22 presentations of issues to the Court, and we have 23 briefed the Court and provided the Court with evidence 24 on that very issue; that is, whether the evidence and 25 the science that these experts say that they employed PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 572 1 to form their opinions in their reports and in their 2 depositions is, in fact, scientifically valid under 3 the law. 4 And now, we have a witness that I have no idea 5 what this witness will talk about, so I object to the 6 witness testifying. It is absolutely unfair and it is 7 unfair to my client. 8 THE COURT: Mr. Vickery. 9 MR. VICKERY: It astounds me that Mr. See, who 10 procured an affidavit from Dr. Jick in June of last 11 year and sat on it while the Court labored over 12 numerous motions in limine for him and didn't file it 13 until earlier this year, wants to talk about someone 14 being surprised or something being unfair. It 15 astounds me that Mr. See, who filed a second 16 declaration from Dr. Jick last Friday, when we were in 17 the middle of trial, would suggest that Lilly is in 18 some way prejudiced by anything relating to this, 19 Judge. 20 This is -- I mean, it consumed my entire day on 21 Saturday. It consumed most of my day yesterday in 22 working with Dr. Healy when I should have been 23 preparing his testimony for your jury to hear. 24 Instead, I was dealing with an issue that was raised 25 by Mr. See. We are not here on a motion for summary PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 573 1 judgment. That's the reason I made the statements I 2 did beforehand. We're in trial. We're in trial. 3 Now, the case law, if we want to look at 4 Joiner, if we want to look at Daubert II, suggests 5 that the Court has considerable flexibility and 6 discretion. In fact, if you want to look at 104, 7 which Mr. See cites, the rule says that even the rules 8 of evidence don't apply to this kind of a hearing. 9 The Court has wide latitude and discretion, but it is 10 certainly unfair of him to say to me and to the Court, 11 Vickery has the burden of showing the scientific 12 reliability, but don't let him put on any evidence to 13 do so. 14 I guarantee you, Your Honor, when you hear the 15 testimony of this witness, that you will be satisfied. 16 The only testimony about this witness doesn't go to 17 the underlying merits of the case. This is not 18 someone who's going to testify in front of the jury. 19 This is someone that's going to help to ensure the 20 Court that the methodology that has been used by 21 Dr. Healy is scientifically reliable, as 22 scientifically reliable as any human being can offer 23 in any court of law in this country. That's the 24 reason for which I call her. May I proceed? 25 MR. SEE: Your Honor, if I may briefly. The PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 574 1 issue that was presented and about which we filed the 2 declaration of Dr. Jick last week was whether 3 Dr. Healy and Shlensky can rely upon the Jick study. 4 We have maintained all along that they cannot so rely 5 and we further maintained all along that the burden 6 was on the plaintiff to establish the scientific 7 validity and the reliability of that study under the 8 applicable law. All along we maintained the very same 9 position. 10 In the Court's last order, the Court accepted 11 the assurances of Dr. Healy, that although he hadn't 12 done the calculation himself, he was certain that the 13 Table 6 of the Jick study would be significant if you 14 only lowered the significance -- the confidence level 15 from 95 to 90. He was certain that that would be the 16 case, and in a footnote, the Court also noted that 17 Lilly had not come forward and shown whether it was or 18 was not significant if you lowered the confidence 19 level. 20 The reason that that was never done before is 21 because we relied on the Lust case, saying it is the 22 plaintiffs' burden to show reliability and didn't 23 think we had to prove anything. Only when the Court 24 brought this up and said, Lilly, you know, you haven't 25 showed anything. We went out and showed, in fact, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 575 1 that the assurance supposedly in a scientific way that 2 Dr. Healy gave the Court, was, in fact, not the case. 3 Dr. Jick redid the numbers using a 90 and 85 percent 4 level and Table 6 is not significant. That's why that 5 declaration was filed. It was strictly in response to 6 the Court's order. And if I may say, the position of 7 my client is, we shouldn't even have had to do that 8 because it's not our burden. It's the plaintiffs' 9 burden to establish the validity of that study to show 10 that it is, in fact, statistically significantly at a 11 relative risk greater than two as is required by 12 Daubert II, so that's why that was filed. 13 THE COURT: Dr. Healy had filed that 14 declaration prior to your filing your motion for 15 renewed reconsideration of the summary judgment order. 16 MR. SEE: Saying that he -- 17 THE COURT: Anyway. What purpose are you 18 calling Dr. Pert for? 19 MR. VICKERY: I'm calling Dr. Pert to establish 20 the scientific reliability of Dr. Healy's reasoning 21 and methodology within the purview of Daubert, Daubert 22 II, and Joiner. 23 THE COURT: How long is her testimony going to 24 be? 25 MR. VICKERY: Probably -- my direct is probably PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 576 1 no more than 15 or 20 minutes, Your Honor. 2 THE COURT: Well, I mean, I suspect Dr. Healy 3 to establish -- 4 MR. VICKERY: I understand that. I'm sorry, I 5 stepped on your words, Your Honor. I understand that, 6 but you see, some of the case law, Judge, says -- and 7 particularly Daubert 2 said that sometimes the Court 8 may want to look beyond the mere testimony of the 9 person that's giving testimony to other scientists, 10 what other people who aren't giving testimony have to 11 say about the scientific reliability. 12 Indeed, in his concurring opinion in Joiner, 13 Justice Briar suggested that the numerous vehicles 14 available to the Court, to make sure that we're using 15 good science rather than bad science, could include 16 even the appointment of a special master or any number 17 of other things. 18 I haven't deposed Herschel Jick, Your Honor. 19 Mr. See is complaining about me having a witness, and 20 he keeps -- 21 THE COURT: Well, I'm going to allow you to go 22 ahead now. I'm not deciding at this point whether I'm 23 going to rely on any of Dr. Pert's testimony or not. 24 MR. VICKERY: I understand perfectly well. 25 THE COURT: All right. Let's proceed. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 577 1 MR. VICKERY: Thank you, Your Honor. 2 State your name please, ma'am. 3 THE WITNESS: Candace Pert. 4 THE COURT: Yeah, swear her first. 5 THE CLERK: Please rise and raise your right 6 hand. 7 CANDACE PERT, Ph.D., 8 called as a witness on behalf of the Plaintiffs, after 9 having been first duly sworn to tell the truth, the 10 whole truth, and nothing but the truth, was examined 11 and testified as follows: 12 THE CLERK: Please be seated. Please state 13 your name and spell your last name. 14 THE WITNESS: Candace Pert, like the shampoo, 15 P-E-R-T. 16 DIRECT EXAMINATION 17 BY MR. VICKERY: 18 Q. Is it Dr. Pert? 19 A. Yes, it is. 20 Q. What kind of a doctor are you, ma'am? 21 THE COURT: How do you spell your last name? 22 THE WITNESS: P-E-R-T, sir. 23 THE COURT: Thank you. 24 Q (By Mr. Vickery) And what kind of a doctor 25 are you, Dr. Pert? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 578 1 A. I'm a Ph.D. 2 Q. And when and where did you get your Ph.D. 3 degree? 4 A. I got my Ph.D. in 1974 from the Johns Hopkins 5 University School of Medicine. 6 Q. In what field? 7 A. My Ph.D. is in pharmacology. 8 Q. And are you a psychopharmacologist? 9 A. Yes. I had the privilege of studying under, 10 kind of one of the key psychiatrists, 11 psychopharmacologists in the field, so I consider 12 myself a psychopharmacologist. 13 Q. Are you also what's sometimes called a 14 neuroscientist or neuropsychopharmacologist? 15 A. Yeah. There's a lot of -- people call me a 16 neuroscientist. There's a field called neuroscience 17 that sprung up in the early seventies, and I kind of 18 launched my career around the same time as the field 19 of neuroscience started. 20 Q. Dr. Pert, you're a little bit nervous. Have 21 you ever sat in a witness stand ever in any court in 22 this country? 23 A. No, I haven't. 24 Q. Now, you heard me explain to the judge that 25 what we're here about today is merely to discuss the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 579 1 methodology or principles used by Dr. Healy in 2 arriving at his substantive conclusions in this case. 3 Do you believe that your education and experience and 4 background qualify you to help the Court out in that 5 regard? 6 A. I do. I've been a scientist for over 25 years. 7 I've worked at the National Institutes of Health for 8 nearly two decades. 9 Q. Let's -- if I may, let's get a little bit of 10 who you are. You mentioned the National Institute of 11 Mental Health. How long did you work there? 12 A. I believe it was 17 years. 13 Q. What was your job there? 14 A. I started as a staff fellow, but by the time I 15 left, I was a section chief. Actually, the only woman 16 section chief at the time. 17 Q. And where are you now? 18 A. I'm at Georgetown University Medical School. 19 Q. And what's your position there? 20 A. I'm a research professor in the department of 21 physiology. 22 Q. Now, are you a member of any professional 23 associations that relate to the field of 24 neuropsychopharmacology? 25 A. I'm a member of many professional societies as PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 580 1 a practicing scientist. I guess the most relevant to 2 these proceedings would be the ACMP, American College 3 of Psychoneuropharmacology. 4 Q. Is that a fairly prestigious organization in 5 that field? 6 A. It's extremely prestigious and hard to get 7 into. It has a whole appointment system, and I'm one 8 of the few female members. That shows you how 9 prestigious it is. 10 Q. Were you the first female to get in? 11 A. No. No, but one of the early ones. 12 Q. Dr. Pert, have you, over the course of years, 13 authored scientific papers? 14 A. Oh, yes. 15 Q. Approximately how many peer-reviewed articles 16 have you written that have appeared in the reputable 17 scientific literature? 18 A. I'm not sure exactly, but it's around 250, I'd 19 say. 20 Q. Okay. While you were at the National Institute 21 of Mental Health, NIMH, do some rather pioneering 22 research that is applicable to the receptor sites for 23 neurotransmitters like serotonin? 24 A. I did a lot of research there. I think the 25 pioneering study was actually done as a graduate PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 581 1 student at Hopkins, which was the discovery of an 2 assay, the first assay to actually measure a drug 3 receptor upon which a lot of the logic and marketing 4 and advertising of many of the SSRIs came to be based. 5 It was the opiate receptor. The idea is that 6 no drug can actually work unless it first attaches 7 itself to what was once hypothetical sites in the 8 tissue, and I developed a method with my mentor for my 9 doctoral dissertation that enabled scientists very 10 easily to develop assays to measure the receptor sites 11 for drugs. 12 Q. Prior to the time that you developed that 13 assay, did anyone in science have the tools to 14 identify the receptor site for serotonin? 15 A. No. 16 Q. Do you have to identify that site before you 17 can develop a drug like Prozac that blocks the 18 receptor site? 19 A. Yes. Well, the Prozac was rationally designed 20 based upon this methodology that I had first started 21 and my mentor had expanded on. 22 Q. Now, in addition to your, I believe you said, 23 250 peer-reviewed scientific articles, have you also 24 published a book recently? 25 A. Yes, I did. I published a book, published by PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 582 1 Scribner about two years ago. 2 Q. Am I holding a copy in my hand here? 3 A. You're holding a copy of the hard cover. It 4 just came out in paperback recently. 5 Q. What's the title? 6 A. Title is "Molecules of Emotion, Why You Feel 7 The Way You Feel." The paperback has a new title, 8 "Molecules of Emotion, the Science Behind Mind Body 9 Medicine." 10 Q. And is the science that you chronicle in this 11 book the underlying science for serotonin-based 12 receptors like Prozac? 13 A. Yes, it is. 14 Q. Okay. Now, Dr. Pert, I want to ask you this: 15 Have you had an opportunity to review the substantive 16 declarations or the substantive opinions of Dr. David 17 Healy as set forth in his several declarations in this 18 case, to discuss those matters with Dr. Healy, to read 19 the Jick study, and to discuss with him his approach 20 to the Jick epidemiology issue as well as to the other 21 causal issues in this case? Have you had a chance to 22 do that? 23 A. Yes, I just recently had a chance. 24 Q. Let me ask you this: On Thursday of last week, 25 Mr. See, I believe, stood right where I'm standing and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 583 1 said, we don't challenge Dr. Healy's credentials. We 2 just think he's using bad science. 3 Could you please tell the Court whether the 4 scientific methodology and approach used by Dr. Healy 5 in arriving at his opinions in this case is bad 6 science, good science, or some other? Tell the judge 7 what you feel about that. 8 A. Honest to God, I was incredibly impressed by 9 the brilliance of the science. It was brilliant. It 10 was comprehensive. It was science at its best. 11 Seeking the truth. I thought it was great. 12 THE COURT: Mr. See, are you accepting the 13 credentials of this witness as an expert? 14 MR. SEE: Your Honor, if I do, it will be under 15 protest. I have no reason to believe that the 16 witness, up to this point, has not testified 17 accurately. I have no information about her at all. 18 So -- 19 THE COURT: As far as the credentials that she 20 has listed so far, do you want to qualify her as an 21 expert? 22 MR. VICKERY: Yes, I do, Your Honor, in the 23 field of neuropsychopharmacology. 24 THE COURT: I'm not sure I can pronounce that. 25 MR. VICKERY: It's taken me a long time to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 584 1 learn to do that too, judge. 2 THE COURT: Mr. See, do you have any objection 3 to that? Do you want to voir dire? 4 MR. SEE: Your Honor, if you would give me just 5 a couple of questions. 6 VOIR DIRE 7 BY MR. SEE: 8 Q. Dr. Pert, afternoon. 9 A. Hi. 10 Q. Your mentor is whom? 11 A. From whom I received my Ph.D., Sol Snyder, 12 Dr. Solomon H. Snyder. 13 Q. And you -- 14 A. He's a very famous psychiatrist who, you know, 15 really wanted to do basic science and -- 16 Q. Is he at Hopkins? 17 A. Yes, he's still at Hopkins. 18 Q. And the research you did with respect to -- did 19 you say serotonin receptor sites? Could you explain 20 what that was? 21 A. The initial research was actually a methodology 22 for morphine receptors, but then it was rapidly 23 applied to many drugs and many natural substances, 24 kind of led to a whole new understanding that no drug 25 can actually act unless it's mimicking or blocking an PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 585 1 internal substance because, you know, we have all 2 these receptors. Why do we have all of these 3 receptors unless they were there for some natural 4 purpose? 5 Q. Do you have a CV here with you today? 6 A. I do not, but it could be gotten. 7 Q. So if I wanted to look at your publications, it 8 would be hard for me to do that this afternoon anyway? 9 A. I don't think so. I think you could pull me up 10 on the Internet and probably find a whole list. You 11 could get my CV, if it was necessary, could be, you 12 know, E-mailed to you or faxed. Let's see. It's in 13 Washington -- oh, it's nine o'clock at night in 14 Washington, D.C. So there still might be some people 15 in the lab. Hopefully, they haven't totally stopped. 16 Q. And your position now is in the department of 17 physiology? 18 A. Yes, that's correct. 19 Q. And what do you do there? 20 A. I'm a full professor. 21 Q. And your research interest is what? 22 A. My interest research is in drugs, their 23 mechanism of action, in all of its scope. Because, 24 you see, the pharmacology interacts with the 25 physiology. Because of this new revolution, you can't PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 586 1 consider drugs in a vacuum without understanding their 2 mechanism of action. 3 Q. You're not a medical doctor? 4 A. Oh, no. I'm a scientist. 5 Q. You're not a psychiatrist? 6 A. Oh, no. I'm a scientist. 7 Q. You don't prescribe drugs for people? 8 A. Nope. 9 Q. Have you ever performed a controlled-clinical 10 trial giving a drug or substance to human beings? 11 A. I've been involved with controlled-clinical 12 trials as a matter of fact, yes. 13 Q. Well, I asked you if you performed one. You 14 said you had been involved. Would you tell me -- 15 A. What do you mean by "performed"? You mean 16 being the guy who gets paid from the drug company who 17 puts the study up? Or do you mean designing it? Or 18 do you mean being the inventor? 19 I've been an inventor of a drug that's gone up 20 in clinical trials. I'm fully cognizant of what goes 21 on in clinical trials and P values and statistical 22 significance. I'm really very, without trying to -- 23 well, I know a lot about that. 24 Q. Have you been the principal investigator in a 25 clinical trial? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 587 1 A. You have to be a medical doctor to be a 2 principal investigator in a trial, sir. I'm just a 3 Ph.D. scientist type. 4 Q. Have you ever actually done a statistical 5 analysis from data from either epidemiology studies or 6 looking at defined populations or clinical trial data? 7 A. Personally, no, but I certainly have studied 8 them and understand statistics and understand the 9 principles upon which they're based. I don't 10 understand the jurisprudential concepts where, you 11 know, people settle -- you know, there's a whole 12 jurisprudential thing. I understand it as a 13 scientist. I understand the principles. 14 Q. I'm not asking you about any law business here 15 right now. 16 A. Okay. 17 Q. So if I'm clear, you have never actually done a 18 statistical analysis on data coming from epidemiology 19 studies looking at defined populations or from 20 clinical trials -- 21 A. Actually, that's not true. 22 Q. You have to let me finish. 23 A. Oh, I'm sorry. 24 Q. Involving giving drugs or investigational 25 substances to humans, you've never done that? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 588 1 A. I actually have, as a matter of fact. I have a 2 drug that's in phase two trials. And I have 3 performed -- well, actually, people under my direction 4 have performed statistical analyses of the data, and 5 it's a constant, you know, concern to do those things 6 properly. 7 Q. But you've never done that yourself? 8 A. No, I've said I've done it myself. I've done 9 it myself and people under my direction have done it 10 and I've done it myself. 11 MR. SEE: Your Honor, I have no more questions 12 on voir dire for the witness. 13 THE COURT: Do you have any objection to the 14 witness being qualified as an expert in 15 neuropharmacology? 16 MR. SEE: I do, and the basis for my objection 17 is I'm unable to discover the substance underlying 18 this lady's qualifications. I heard about them as I 19 sit here in the last few minutes, and I'm really not 20 able to make meaningful inquiry or really make more of 21 an objection than I cannot evaluate whether the lady 22 is qualified or not. 23 MR. VICKERY: Maybe I can help him out with a 24 question, Your Honor. 25 THE COURT: Very well. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 589 1 Q (By Mr. Vickery) Dr. Pert, if Mr. See wants 2 to know who you are, is there somebody he can call, 3 somebody that he represents at Eli Lilly that knows 4 you real, real well and can tell him all about you and 5 your background and vice versa? 6 A. Yeah. He can call Steve Paul, who's the new 7 vice president of Lilly. Steve has been a friend of 8 mine for many years, and, in fact, we've published 9 together and I helped him out a few times and for a 10 while he was my boss, actually, for a number of years 11 at the NIMH. So he'll know my scientific credentials. 12 Q. Fine. I believe I was at that point to ask 13 you -- 14 THE COURT: Well, before you do, the Court will 15 find at this time that Dr. Pert is qualified as an 16 expert in neuropharmacology. 17 MR. VICKERY: Thank you, Your Honor. 18 Q. Now, the question is -- 19 THE COURT: And that will be subject to Mr. See 20 having an opportunity to check further on her 21 curriculum vitae and if he wants to call Mr. Paul, he 22 may do that. 23 MR. VICKERY: That's fine, Your Honor. And I 24 apologize to the Court for not having it. I didn't 25 envision, when I asked her down here, that we would be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 590 1 doing this. It was only Mr. See's filing on Friday 2 morning of the second Jick declaration and the 3 prospect of a Daubert hearing that caused me to ask 4 Dr. Pert, who had really been just advised or invited 5 to watch and to consult with me, to actually take the 6 hot seat, so that's the reason I don't have the CV for 7 her. 8 DIRECT EXAMINATION (Continued) 9 BY MR. VICKERY: 10 Q. Now, Dr. Pert, the real question here is 11 whether or not the methodology employed by Dr. Healy 12 to arrive at his substantive opinions in this case is 13 valid science, good science, or is it bad science? Is 14 it the kind of science that you and other scientists 15 would generally accept in terms of methodology or is 16 it something that's just bogus, lunatic fringe stuff? 17 Where is it? 18 A. It's excellent science. I read the Jick paper 19 very carefully and his analyses are terrific. 20 Excellent. Sound. 21 Q. His being Dr. Jick or Dr. Healy? 22 A. Dr. Healy. Dr. Jick, actually, his original 23 analyses were sound. He actually raised the Prozac 24 suicide issue right in the original paper, right in 25 the actual abstract, and found a lot of data, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 591 1 surprising data, to support that. Then later on he 2 apparently backtracked from it as I read the whole 3 declaration, but -- 4 Q. Did you read the Jick paper, his study before 5 you read Dr. Healy's substantive declaration? 6 A. Yes. Of course, I read the Jick paper very, 7 very carefully. 8 Q. You mentioned 250 papers. How many scientific 9 papers have you read and analyzed over the course of 10 the years? 11 THE COURT: How many what? 12 MR. VICKERY: Scientific papers has she read, 13 published peer-reviewed scientific papers like the 14 Jick study, has she read over the years? 15 THE COURT: Involving what? 16 MR. VICKERY: Involving any kind of subject, 17 any kind of scientific subject. 18 THE WITNESS: I mean, thousands. Many, many 19 neuropharmacology. Many. Many. 20 Q (By Mr. Vickery) And just on reading the Jick 21 study itself, without either talking to Dr. Healy 22 about it or looking at what he has said in various 23 declarations before this Court about it, how did it 24 strike you as a neuropsychopharmacologist? 25 A. Well, what really struck me -- can I -- I mean, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 592 1 I'm very familiar and interested in the SSRIs. I 2 lecture a lot. People ask a lot of questions about 3 them, and I think the most striking thing that I found 4 in that paper -- it's a very well-done study for what 5 it needed to be, and what was most strikingly analyzed 6 is it compared a lot of different antidepressants. 7 Fluoxetine, Prozac was only one of. 8 Them. And they looked only at death 9 certificates. They only looked at people who had 10 actually died of a suicide, but in fact, one of the 11 things about Prozac is that it's very non-toxic. It 12 is impossible to die when you get -- you know, a lot 13 of depressed people try to kill themselves by taking 14 all of the drugs, and, you know, with Prozac, who 15 knows, it could be three, five, ten attempts for every 16 actual success so the -- 17 MR. SEE: Your Honor, I object and ask that the 18 last portion of what the witness said be stricken as 19 pure speculation. Unadulterated speculation. 20 THE WITNESS: No, it's not. It's not 21 speculation. There's a whole literature on suicide. 22 I'm very interested in suicide and there's a whole 23 literature on suicide. 24 THE COURT: She's giving her opinion, Mr. See. 25 You can cross-examine. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 593 1 THE WITNESS: There's vast literature on 2 suicide. There's textbooks on suicide. You know, 3 women alone are the ones most likely to commit 4 suicide. There are between three and ten attempts for 5 every successful one. It depends on which database 6 that you look at. I mean, I'm integrating over a lot 7 of papers. 8 So I thought, if anything, it was striking that 9 the Fluoxetine suicide rate just stood out like a sore 10 thumb in that paper, and the fact that it wasn't even 11 adjusted for that because it was just looking at death 12 certificates. It wasn't correcting for the fact that 13 people on tricyclic antidepressants, for example, 14 they're extremely toxic drugs and it's very easy to 15 kill yourself on tricyclic antidepressants. 16 THE COURT: Thank you, Dr. Pert. I'll pass the 17 witness. 18 CROSS-EXAMINATION 19 BY MR. SEE: 20 Q. Dr. Pert, you're familiar with the concept of 21 statistical significance? 22 A. Yes, I am, sir. 23 Q. And is it correct that in order -- in the broad 24 scientific and medical community, including the 25 regulatory agency, that is the Food and Drug PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 594 1 Administration. 2 A. I know. 3 Q. The top journals, the top organizations, that 4 in order for study results to be considered as 5 scientifically valid, and therefore, worthy of note, 6 that the results must be statistically significant. 7 Do you agree with that? 8 A. I agree. I'm totally cognizant of it. 9 Dr. Healy is much more eloquent on this whole -- 10 Q. That's sort of a yes or no, ma'am. That's a 11 yes or no. 12 A. Well, it's not really yes or no. That was a 13 long question. It's a complicated issue. Statistical 14 significances can be quite arbitrary. There's a whole 15 history of statistical significance. What is 16 statistically significant? What does the FDA consider 17 statistically significant? What do I consider 18 statistically significant when I'm calculating my 19 experimental results and getting it ready for 20 publication? 21 There's arbitrary points. Should it be .01? 22 Should it be .001? There's legal statistical 23 significance. I mean, statistical significance -- I 24 mean, there's been debates about, you know, but of 25 course, it is an important concept, yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 595 1 Q. I didn't ask you to set a level. I just asked 2 you, wouldn't you agree that it is universally 3 accepted that in order for the results from studies, 4 looking at two data sets, to be considered 5 scientifically valid, and therefore, worthy of note, 6 the results need to be statistically significant at 7 whatever level? 8 A. Of course. I'm sorry, yeah, of course. 9 Q. Thank you. 10 A. There's a little jet lag here. 11 Q. Okay. Now, would you agree that in order to -- 12 well, let's not ask that. 13 Would you agree that you're familiar with the 14 concept of confidence interval? 15 A. Of course. 16 Q. And would you agree that if in calculating the 17 statistical significance of a study result, if the 18 value of one is included in the confidence interval, 19 then those results, at whatever level of confidence 20 you set, those results are not statistically 21 significant, correct? 22 A. Um-hum. 23 Q. You have to answer yes or no, ma'am. 24 A. Oh, that was yes. 25 Q. And if the value of one is included in the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 596 1 confidence interval, then the result is not 2 statistically significant, and therefore, not 3 considered scientifically valid, again, depending on 4 where you set the level, right? 5 A. Yes. 6 Q. Now, I would like to ask you a question about 7 the Jick study. I take it that you think that the 8 Jick study is -- the Jick study, you know, is relied 9 upon by Dr. Healy? You understand that? 10 A. I think he relies on -- I don't -- I mean, 11 Dr. Healy has been doing declarations and answering 12 these questions and researching all this for two 13 years. I don't pretend to be the expert that he is on 14 all aspects, and I think you would want to get to his 15 testimony soon. 16 Q. Ma'am, you just told the Court that you've been 17 carefully over all of his declarations and you read 18 the Jick article -- 19 A. No, I said I read the Jick study very, very 20 carefully. I'll answer any questions you want to ask 21 me on the Jick study, but I don't -- I know there's 22 been a lot of legal opinions about it, and fighting 23 back and forth. I don't even really understand -- I 24 barely understand the difference between a declaration 25 and an affidavit at this point. So if you want to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 597 1 question me about the Jick study or parts of 2 Dr. Healy's declaration, I could do it, but -- 3 Q. Would you assume that Dr. Healy relies on the 4 Jick study for his opinion that Prozac causes suicide 5 in human beings? Would you assume that? 6 A. No. Based upon his declaration, he brings in 7 all kinds of evidence. The Jick study is one very 8 small piece of his very elegant, brilliant reasoning. 9 He seems like a very accomplished scientist and it is, 10 frankly, not to say mean things, but, you know, I 11 spent 17 years at the National Institute of Mental 12 Health surrounded by mental doctors, scientists, and 13 so few of them are actually scientists or have any 14 scientific ability. 15 It is really quite clear that Dr. Healy is very 16 brilliant in that regard and he has tremendous scope. 17 He's a scientist and he has a scientific mind, and 18 he's a psychiatrist and has a clinical practice. I 19 never met him before the other day and I was really 20 impressed with him, I have to say. 21 MR. SEE: If I may approach the witness, Your 22 Honor. 23 Q. Let me hand you a copy of the Jick study, 24 ma'am. You did tell the Court you reviewed that study 25 before coming here and testifying, correct? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 598 1 A. Yes, sir. 2 Q. And in your view, the assistance that you want 3 to give the Court on what is good science, you believe 4 that it is, in fact, good science to rely upon the 5 Jick study to support a scientifically valid 6 conclusion that Prozac causes suicide, correct? 7 That's what you're saying about Dr. Healy? 8 A. That sounds like a lot of legal stuff. If you 9 want to ask me questions about this scientific paper 10 and the conclusions that it came to, I can be 11 responsible for that and I'd welcome it. I'd enjoy 12 discussing it, but if you're going to have discussions 13 between lawyers back and forth, you know, blocking -- 14 Q. Here's a scientific question, is it good 15 science -- 16 A. This paper? 17 Q. Just hold on. I'm not finished. 18 A. Yes. Sorry. 19 Q. Is it good science to rely upon the Jick study 20 to support a conclusion that Prozac causes suicide? 21 A. Well, you know, scientists -- you can read 22 right here in the actual abstract as the Jick paper 23 concluded here. I can read from their own paper at 24 the end of the result right here in the abstract. 25 That's the part that goes on the Internet, where you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 599 1 put your firmest conclusions, and I read from their 2 own data here, and they don't mention any other drug, 3 any particular antidepressant was associated with the 4 high rate of suicide. It says rate in the suicide 5 right in the abstract. It is the only drug mentioned 6 by name. 7 "Rates of suicide were higher in patients who 8 received Fluoxetine, but this may, may be explained by 9 selection biases which were present for those drug 10 users." And you always have to say "may" until you 11 know the scientific language. "This may be explained 12 by selection biases." 13 Actually, it is interesting, he considered 14 several selection biases, but he didn't really 15 consider the most obvious one, the fact that 16 Fluoxetine does not kill. So he didn't actually 17 consider that one, which would really -- if you did a 18 statistical analysis that way, you would find a quite 19 shockingly high suicide rate by Fluoxetine. 20 Q. Thank you, ma'am. Now, this time with the 21 Court's permission, I'm going to ask, would you answer 22 the next question with a yes or no? 23 A. Yes, sir. 24 Q. Is reliance upon the Jick study to support a 25 conclusion that Prozac causes suicide in humans, is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 600 1 that good science? 2 A. Am I forced to answer yes or no to a question? 3 If it was yes or no, if it was the sole thing. A good 4 scientist takes all the data available and reads it 5 all and evaluates it in totality, so I think you have 6 to ask, and go to Dr. Healy. I think this is one 7 piece of the very big picture; however, this is the 8 most interesting paper I've read on the subject and it 9 is a damn good paper and I think it really, as the 10 authors conclude, you know, it maybe explained the 11 rates of suicide were higher in patients who received 12 Prozac. 13 Q. Are you familiar with the concept of case 14 report? 15 A. Of course I'm familiar. I'm sorry. Of course 16 I'm familiar. 17 THE COURT: Before you do that, Mr. See. I'd 18 like you to answer, in your own words, rather than yes 19 or no, Mr. See's question whether it would be good 20 science to rely on the Jick study to support a 21 conclusion that Prozac causes suicide in humans? 22 THE WITNESS: Yes. 23 Q (By Mr. See) Now, would you look at Table 3 24 of the Jick study? 25 A. Table 3. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 601 1 Q. It's on the second page and right-hand column? 2 THE COURT: I think at this time, Mr. See, I 3 want to hear from Dr. Healy, and then that will give 4 you an opportunity to review, with respect to 5 Dr. Pert, over the evening and we can proceed with 6 Dr. Pert tomorrow, but I would like to proceed with 7 Dr. Healy at this point. 8 MR. SEE: Very good. 9 DAVID HEALY, M.D., Ph.D., 10 called as a witness on behalf of the Plaintiffs, after 11 having been first duly sworn to tell the truth, the 12 whole truth, and nothing but the truth, was examined 13 and testified as follows: 14 THE CLERK: Please be stated. Please state 15 your name and spell your last name. 16 THE WITNESS: My name is David Healy, 17 H-E-A-L-Y. 18 DIRECT EXAMINATION 19 BY MR. VICKERY: 20 Q. Dr. Healy, thank you for coming. Have you 21 filed, in this case, a number of different sworn 22 declarations regarding the scientific issues? 23 A. Yes, I have. 24 Q. Now, a number of those are before the Court, 25 and I'm going to defer to the Court for any questions PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 602 1 about those, but there are a few things that I would 2 like to ask you first. 3 First and foremost, did you publish a paper in 4 a peer-review journal about the relationship between 5 Fluoxetine, which we'll call Prozac from now on, 6 between Prozac and suicide prior to the publication of 7 the Jick study? 8 A. Yes, I did. 9 Q. Did you have any problems getting that 10 publication, getting through the peer-review process? 11 A. No, I didn't. 12 Q. Have you had occasion, through the course of 13 the last several years, to give your theories, your 14 opinions, and the scientific rationale for those 15 opinions in the form of presentations outside of the 16 litigation context, other doctors and scientists and 17 their kind of settings, rather than in litigation, 18 litigation setting? 19 A. Yes, I have frequently during the last two or 20 three years. 21 THE COURT: Presentations on what? 22 MR. VICKERY: On his theories regarding the 23 causal relationship between Prozac and violence and 24 suicide in some individuals. 25 Q. Now, when you had made those scientific PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 603 1 presentations, has it been like rooms full of people? 2 A. The audiences have been up to 3 to 400 people 3 at a time. 4 Q. And how many total scientists do you think have 5 heard you make your presentations regarding your 6 opinions on these matters? 7 A. Probably over one thousand. 8 Q. Has anyone ever challenged you either publicly 9 or in private and said you are using bad science to 10 come to these conclusions? 11 A. No. 12 Q. Have you, in fact, offered to have a vigorous 13 scientific debate with Eli Lilly's top scientists 14 anywhere, anytime on these issues? 15 A. Yes, I have. 16 Q. Have they ever taken you up on that? 17 A. No, they haven't. 18 Q. Okay, sir. Now, I want to ask you about 19 rechallenge or actually, challenge, dechallenge, and 20 rechallenge. Can you just explain what those three 21 terms are as you have used them? 22 A. Yes, I can. Could I take a quick preamble 23 through one or two other issues actually related to 24 that? Would that be okay with the Court? 25 There are three ways briefly to look at how you PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 604 1 would actually prove cause and effect and I'll quickly 2 take the Court through the three ways and show the 3 good points and the weak points behind each. 4 Q. Okay. If you would, that would probably help 5 us. 6 A. One of the approaches that one hears about is 7 the randomized control trial, which is RCT for short. 8 These days, one frequently reads it as the gold 9 standard way to produce cause and effect 10 relationships. Now -- 11 THE COURT: This is what? 12 THE WITNESS: The gold standard way to produce 13 cause and effect. 14 THE COURT: A controlled trial? 15 THE WITNESS: The controlled trial. 16 Now, I have to say, Your Honor, that these 17 phrases are used, but you're going to see how weak the 18 phraseology is now in just one moment. If you want to 19 look at whether Prozac works as an antidepressant, 20 this court would hold roughly 100 people, if it were 21 absolutely full. We would need two courthouses full 22 of people, and half of the people in the two 23 courthouses would be randomized to either Prozac or 24 sugar pill, and it is only with that large a number of 25 people that we might be able to show Prozac works as PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 605 1 an antidepressant. 2 But let's say, Your Honor, you were one of the 3 people who were actually depressed and had been put on 4 Prozac and you had seemed to get well with this drug. 5 I still couldn't be sure that it was the Prozac that 6 got you well because you could have been one of those 7 people who was put in the sugar pill group as well and 8 you would have responded to being involved in therapy 9 of some sort. 10 So you get a very weak cause and effect 11 relationship out of an RCT, and we only use RCTs to 12 control for particular kinds of bias. The kinds of 13 bias that are introduced by clinical people when they 14 are trying to actually investigate, does a new drug 15 work at all. 16 THE COURT: So you were saying that you have to 17 have a minimum number to be in this controlled test to 18 make it -- 19 THE WITNESS: No. No. What I'm saying is 20 this, Your Honor, if you had an extremely strong drug, 21 you would need much less than 200 people. Prozac is 22 an extremely weak antidepressant and we would need 23 very large numbers of people to show that it worked 24 over and above the effect of any sugar pill. 25 What I wouldn't know at the end of the day is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 606 1 if you had been on Prozac and you had appeared to get 2 well on it, if the cause of you getting well was the 3 Prozac, because you could have been one of those 4 people who had been put in the sugar pill group as 5 well and you would have done equally as well because 6 very large numbers of people in that group also will 7 also get well. 8 Q (By Mr. Vickery) Is that called the placebo 9 effect? 10 A. Yes, that's the placebo effect. All we show in 11 a randomized controlled trial is that the active drug 12 works somewhat better than the placebo, but you don't 13 get a true cause and effect relationship out of an 14 RCT. 15 Q. Now, before we leave RCTs and go to the other 16 two, let me ask you this: There is attached to the 17 declaration that you filed yesterday a study protocol 18 written by Dr. Charles Beasley at Eli Lilly in the 19 spring of 1990 to study this question, does Prozac 20 cause suicide? And my question to you, sir, is did 21 Dr. Beasley, in that study protocol, consider and 22 reject the RCT as a means to study this phenomenon? 23 A. Yes, he did, and this is of interest to me. 24 The views that I'm giving the Court now are the views 25 that I've actually expressed in a range of reviews and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 607 1 it came as a great surprise to me that Dr. Beasley 2 appears to have almost the precise same views that 3 I've had and has had them for many years. 4 Q. Okay, sir. Now, you said there were three 5 methods that one could use to study this. RCTs are 6 one. What's the next one? 7 A. The next one is epidemiology. Epidemiology is 8 when one looks at a defined population and has a look 9 at when they're exposed to a particular drug or not, 10 does a particular problem occur? 11 Now, in the case of epidemiology, we have 12 several problems here, and let me illustrate this by 13 referring you to the problems with whooping cough 14 vaccination. Whooping cough causes brain damage. The 15 vaccine also causes brain damage. 16 If you do a simple epidemiological piece of 17 work, what you'll find is on the epidemiology, that 18 the rates of brain damage go down overall in children 19 who've had the vaccine. But we now know that the 20 vaccine in its own right can cause certain susceptible 21 children to get brain damage that is caused by it, the 22 vaccine. They haven't had whooping cough disease. 23 So epidemiology can be a two-edged sword. It 24 can conceal very striking relationships between a drug 25 or a vaccine and an injury, so one has to actually PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 608 1 approach the whole area with caution. 2 Having said that, what epidemiology will give 3 you is not a true cause and effect, per se, but it 4 will give you an estimate for the frequency with which 5 a particular thing is happening, and the legal system 6 gets concerned when the frequency with which a 7 particular thing is happening goes over a certain 8 threshold. 9 In the case of the Jick study, what we have is 10 a piece of work which looks at the comparative 11 frequency with which suicides appear to happen with 12 different antidepressants, and in the case of 13 Fluoxetine, it appears to happen 2.1 times higher than 14 any -- than the reference antidepressant with which it 15 was being compared. 16 Now, to get to a causal effect here, you would 17 have to do something else. You would want to know not 18 what is the relationship of Fluoxetine to the 19 reference antidepressant. What you'd want to know is 20 what is the relationship between the frequency with 21 which people commit suicide on Fluoxetine and the 22 frequency with which people who are mildly depressed 23 in primary care normally commit suicide. 24 We have done that extra work and I feel very 25 confident to employ the Jick data supported by the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 609 1 extra work that we have done, which shows you the 2 natural rates of which people who are depressed on any 3 antidepressant or no antidepressant commit suicide in 4 primary care in the U.K., where the Jick study was 5 done, and you will find that the questions of 6 Fluoxetine committing suicide 2.1 times more 7 frequently than the referenced antidepressant, which 8 you find in the Jick study, don't apply in the sense 9 that it appears to be causing suicide at a rate five 10 to six times higher than the baseline rate at which 11 primary care depressed people commit suicide in the 12 U.K. 13 Q. Say that again. Let me make sure that I 14 understand that. The Court's smarter than me and he 15 may have got it. Just say it again. What's this five 16 to six times? 17 A. Well, in the Jick study the rate at which 18 Fluoxetine appears to cause people to commit suicide 19 are associated with people committing suicide is 187 20 people per 100,000 people who are depressed. 21 In actual fact, in the United Kingdom from 22 where the Jick trial is done, the natural rate at 23 which people in primary care, who haven't been 24 hospitalized patients, commit suicide whether they're 25 on treatment or not on treatment is 15.8 per 100,000 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 610 1 people. That is something like 14 or 15 times less 2 than the Jick figure. So the arguments about 2.1 and 3 confidence intervals really are irrelevant in the face 4 of this kind of data. 5 THE COURT: Irrelevant in what? 6 THE WITNESS: In the face of this kind of data. 7 THE COURT: Why? 8 THE WITNESS: Because the -- there's no 9 conceivable -- I mean, if you take the confidence 10 intervals that are reported in the Jick paper for 11 Fluoxetine, and work out what the lowest rate could 12 be, according to Jick, with which Fluoxetine seems to 13 be associated with people committing suicide, it would 14 still be several times higher than the rate that 15 occurs naturally in the United Kingdom. By several 16 times higher, I mean, five to six times higher. 17 Q (By Mr. Vickery) Let me stop you there. I'm 18 sorry, Your Honor. Did the Court have another 19 question for him? 20 THE COURT: Well, I just wanted to ask, 21 Dr. Healy, you had mentioned, "We had done this work." 22 THE WITNESS: Yes. 23 THE COURT: Who were you referring to? 24 THE WITNESS: Who I'm referring to is I've got 25 a close colleague who has worked with me during the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 611 1 past, he's Dr. A. P. Boardman, who in Psychological 2 Medicine this year, which is the premiere psychiatric 3 journal in the United Kingdom, published a 4 peer-reviewed epidemiological study of the rates of 5 suicide in a defined area in the United Kingdom. 6 Now, he looked at 470,000 people, and he looked 7 over a five-year period, which gives you altogether 8 over two million patient years, and he had 212 9 suicides over the course of this period of time. This 10 is an article, a peer-reviewed article that I included 11 in my declaration to the Court yesterday. 12 What I've been able to do with him in the 13 course of the last two months is to revisit the data 14 and to calculate from it the rates of suicide for 15 people who have primary-care mood disorders in the 16 U.K.; that is, people who are depressed, mild to 17 moderately depressed, but haven't been to the 18 hospital, versus the rates that would apply for people 19 who are more severely depressed versus the rates that 20 would apply for any other psychiatric illness. And 21 we've been able to work out the rate in a draft 22 article that has been jointly authored by Dr. Boardman 23 and myself, which has been submitted to the Court, and 24 the rate that we get for primary-care mood disorders, 25 which is the population Dr. Jick looked at, the rate PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 612 1 we get is 15.8 per 100,000 people. 2 MR. VICKERY: Thank you, Your Honor. 3 Q. So in other words, what Jick shows as a rate, 4 if you look at all his statistics, is 187 per 100,000 5 on Prozac? Is that right? 6 A. Yes. 7 Q. And what you and Dr. Boardman have done -- and 8 that's on how many patients in the Jick study? 9 A. That's on 172,000. 10 Q. How many patients were involved in the 11 epidemiological study done by Dr. Boardman? 12 A. There was over two million patient years. 13 There was 470,971 patients. 14 Q. And with those patients, you're saying that in 15 primary care throughout the United Kingdom, the rate 16 of suicide is how many per hundred thousand? 17 A. The rate -- what you get from Dr. Boardman's 18 piece of work is the figures that he has for the 19 number of suicides for the area that he looked at is 20 exactly the same as the overall figures for the United 21 Kingdom. So we take the population that he has looked 22 at as representative of the whole -- of the U.K. 23 When you extrapolate the data from his piece of 24 work, up to the whole of the U.K., what you get is a 25 figure of 15.8 per 100,000 patient years. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 613 1 Q. So that the ratio, what you're saying, of 187 2 to 15.8 is five to six times greater? 3 A. It is much more than that if you do your 4 figures. It's 14 times or thereabouts. 5 Q. Now, does that correspond to any of Lilly's own 6 internal documents that assess the rate of suicide 7 between Fluoxetine and other comparative 8 antidepressants that you've recently seen as part of 9 preparation for this trial? 10 A. From their clinical trials, there has been 11 estimates that the rates of suicide on Fluoxetine were 12 considerably higher than on reference compounds. When 13 they have looked at -- the issue of treatment-emergent 14 suicidality has been looked at as well, in a very 15 crude way, when the FDA went back and analyzed the 16 data themselves, the officer from the FDA who went 17 through the data said that this is strongly suggestive 18 of a causal effect of Fluoxetine-producing treatment 19 emergent suicidality. 20 THE COURT: Was that Dr. Buffman? 21 THE WITNESS: Dr. Graham. 22 THE COURT: Dr. Graham. 23 Q (By Mr. Vickery) Have you seen as well the 24 Lilly internal document as of the state of knowledge 25 in May of 1985 that said the rate was 5.6 times PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 614 1 greater? 2 A. I have. And there's an interesting rider to it 3 which it appears to imply that given this, the drug is 4 going to be too dangerous to market widely. They will 5 need to find a population of people who will respond 6 to it to justify that kind of risk. 7 Q. Okay. Now, we've been talking about 8 epidemiological studies, right? 9 A. Um-hum. Yes. 10 Q. And Jick is an epidemiological study? 11 A. Yes. 12 Q. Now, this question, sir, when Dr. Charles 13 Beasley, on behalf of Lilly, wrote the study protocol 14 in the spring of 1990 to study this phenomenon, did he 15 consider and reject epidemiology as the proper way to 16 study it? 17 A. He did, yes. 18 Q. What did Dr. Beasley choose? 19 A. Dr. Beasley chose, what I believe to be the 20 only way to demonstrate a causal effect, and I might 21 add quickly here, I've been amazed that the Court has 22 got so caught up in the details of the Jick study, 23 because I have only ever used it post 1995 when it 24 appeared to supplement my reasoning as regards to 25 cause and effect which appears to be the same as PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 615 1 Dr. Beasley's from Eli Lilly. 2 Dr. Jick himself has also said that the 3 appropriate way to determine cause and effect in terms 4 of drug-induced injury is a challenge/rechallenge 5 protocol. This has been done by a number of 6 investigators from Harvard and Yale and other 7 distinguished centers in the U.S. 8 We have done the same piece of work in the U.K. 9 and it may be worth noting that Bill Forsyth himself 10 appears to have something of a challenge/rechallenge 11 protocol given to him in the course of his treatment, 12 which makes me very confident about claiming not only 13 general cause and effect where Prozac is concerned and 14 treatment emergent suicidality, but specific cause and 15 effect in his case. 16 Q. And is the challenge, dechallenge, rechallenge 17 methodology and the published articles that you've 18 relied on in that regard set forth in your 19 declaration? 20 A. It is, yes. 21 Q. I won't ask you to go through them. I'm sure 22 the Court may have some questions on that. 23 THE COURT: I would like to ask Dr. Healy to 24 explain further how did Dr. Jick's apply this 25 challenge/rechallenge? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 616 1 THE WITNESS: No. Dr. Jick himself, when he 2 did epidemiology in this area, noted that there has 3 been a question of Fluoxetine-induced suicidality and 4 he says that the appropriate way to look at this is by 5 a challenge/rechallenge protocol. Not by 6 epidemiology, per se. This is a view -- 7 THE COURT: Where did he say that? 8 THE WITNESS: This is in a 1992 article that 9 he's authored that I refer to in one of my 10 declarations. This is a view that's supported by not 11 only Dr. Beasley from Eli Lilly, but by a number of 12 other senior investigators from different 13 pharmaceutical houses. It's supported by Professor 14 Louis Lasagna from Tufts University who is thought to 15 be the most distinguished clinical pharmacologist in 16 the United States. 17 THE COURT: How do you spell his last name? 18 THE WITNESS: L-A-S-A-G-N-A. 19 Q (By Mr. Vickery) Like the pasta dish? 20 A. Like the pasta dish. And it's this approach, 21 this method that I have used in the 1994 review that I 22 published on this issue before the Jick data became 23 available. It's also the method that I've used in an 24 article which has just come out this month called, 25 "Suicide in the Course of the Treatment of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 617 1 Depression," which is on this issue again. This is a 2 further vigorously peer-reviewed article looking at 3 the whole issue of how you would establish cause and 4 effect in this area. 5 And in the course of the argument, I note that 6 one can also use the Jick data, but I do not rest the 7 case on the Jick data. I rest the case on the 8 challenge/rechallenge protocols that have been 9 implemented in this area. 10 THE COURT: Thank you. 11 MR. VICKERY: Your Honor, I believe that I have 12 more than abundantly satisfied any obligation I have 13 under Daubert and so I will pass this witness and 14 allow Mr. See and the Court to ask him what other 15 questions are necessary. 16 THE COURT: Mr. See. 17 CROSS-EXAMINATION 18 BY MR. SEE: 19 Q. First, Dr. Healy, your own 20 challenge/rechallenge paper? 21 A. Um-hum. Yes. 22 Q. Do you claim -- 23 THE COURT: Which one? 24 MR. SEE: He's only got one of them, but I'll 25 get it. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 618 1 THE COURT: I thought he just said he had a '94 2 and a '99 article. 3 THE WITNESS: Your Honor, I've got two 4 peer-reviewed articles which look at the issues of how 5 one would look at cause and effect in this area. I 6 also have an article where we have challenged and 7 rechallenged two individuals who became suicidal on an 8 SSRI with another drug active on the 5-HT system and 9 shown that the other drug produces suicidality when 10 the individual is re-exposed. 11 This is a 1991 article, and we're reporting a 12 phenomenon that we witnessed before I became aware of 13 the Teicher article at all in the first place. 14 MR. VICKERY: You mean the Jick? 15 THE WITNESS: No, the article by Martin Teicher 16 way back at the start. 17 THE COURT: The Rothschild? 18 THE WITNESS: No. The article that kicked all 19 of this off, Your Honor, was an article which appeared 20 in the American Journal of Psychiatry by Martin 21 Teicher. 22 THE COURT: Teicher? 23 THE WITNESS: Yeah. Now, before I became aware 24 of that article and its contents, we had witnessed the 25 same effect and it's reporting on this phenomenon. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 619 1 Q (By Mr. See) First, is it your claim, 2 Dr. Healy, that the article called, 3 "Antidepressant-Induced Suicidal Ideation" in 1991, 4 that that is a challenge/rechallenge on Prozac? 5 A. It's a challenge/rechallenge with drugs active 6 on the 5-HT system, the serotonin system, yes. 7 Q. All right. Now, I want to make sure the Court 8 understands. What you did was, you had two people, 9 and you first gave Prozac and then stopped Prozac, and 10 then -- we're talking about Case A now, the first one. 11 Prozac first and then stopped it, and then you gave a 12 different antidepressant called Fluoxetine, correct? 13 A. Yes. 14 Q. That's Case A. Case B, you first gave Prozac, 15 right? 16 A. Yes. 17 Q. And then stopped it and then gave a different 18 antidepressant called Imipramine, correct? 19 A. That is correct. 20 Q. So in neither of those two individuals and 21 there were only two, right? 22 A. That's correct. 23 Q. And neither of the two did you rechallenge with 24 Prozac, correct? 25 A. That's correct. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 620 1 Q. Now, I want to ask you about Rothschild, but 2 just a little bit of foundation, first. The 3 Rothschild article has to do with akathisia, doesn't 4 it? 5 A. It does, yes. 6 Q. You're familiar with the DSM-IV, the Diagnostic 7 and Statistical Manual IV by the American Psychiatric 8 Association? 9 A. I am, yes. 10 Q. All right. And akathisia is one of the 11 conditions that is defined in this book, isn't it? 12 A. No, it's not. 13 Q. Okay. There are research criteria for 14 diagnosing akathisia in this book, are there not? 15 A. You'll have to show me them, Mr. See, and I'll 16 have a look and let you know. 17 MR. SEE: May I? 18 THE COURT: You may. 19 THE WITNESS: Okay. These are research 20 criteria for neuroleptic-induced acute akathisia. 21 Q (By Mr. See) All right. It's the only 22 akathisia in that book, isn't it? 23 A. It is. 24 Q. Thank you. Now, the criteria for diagnosing 25 akathisia that are contained in the -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 621 1 A. These are not criteria for diagnosing 2 akathisia, Mr. See. These are criteria for 3 neuroleptic-induced akathisia. We have agreed on 4 that, haven't we? 5 Q. The criteria relating to akathisia, the only 6 criteria that are in the DSM-IV which is the 7 recognized -- 8 A. They are not criteria for akathisia. These 9 cannot be portrayed as criteria for akathisia. 10 Q. We'll have to come to an agreement. I'll let 11 you finish your answer. You let me finish my 12 question, okay? 13 A. Okay. 14 Q. The only criteria relating to akathisia in the 15 American Psychiatric Association Diagnostic Manual are 16 the ones you just looked at on Page 746, are they not? 17 A. They are. 18 Q. And they say -- and I'll give you the book if 19 you don't have it from memory. Do you have it from 20 memory? 21 A. No. 22 Q. And they say akathisia requires two things. 23 First, a subjective complaint of restlessness, 24 correct? 25 A. Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 622 1 Q. And the second one is one or more of four 2 items, and those items are fidgety or swinging legs, 3 rocking back and forth, pacing or an inability to sit 4 or stand still for more than a few minutes, correct? 5 A. Correct. 6 Q. Now, to the Rothschild paper. 7 MR. SEE: If I may hand it to him, Your Honor? 8 THE COURT: You may. 9 Q (By Mr. See) Actually, in Mr. Vickery's 10 papers it referred to the six patients in the 11 Rothschild paper. There are only three; isn't that 12 correct? 13 A. That's correct. 14 MR. VICKERY: I apologize to the Court. He's 15 absolutely right. When Ms. Barth called me and said 16 yesterday the Court wanted me here, my proofs didn't 17 get changed. It's three out of three, not six out of 18 six. 19 Q (By Mr. See) I want to ask you about case one 20 which is on the first page on the right-hand side 21 under the title, "Case Reports." Do you see it? 22 A. I do. 23 Q. I want you to go down about two-fifths of the 24 way in that paragraph -- 25 A. Um-hum. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 623 1 Q. -- and it says, "At that time, Ms. A" -- you 2 see that? 3 A. I do. 4 Q. -- "remembers becoming increasingly anxious and 5 restless without any change in her depressed mood. 6 Her restlessness was only partly relieved by pacing or 7 by crossing and uncrossing her legs while sitting." 8 Do you see that? 9 A. I do, indeed. 10 Q. That's case one. Case two is on the next page. 11 Go down to the second paragraph of case two, please. 12 The third paragraph, pardon me. About the fourth line 13 down. It talks about Mr. B, who is case two, and 14 about Mr. B it says, "Five days later, Mr. B reported 15 severe anxiety and restlessness. He paced the floor 16 throughout the day." Do you see that? 17 A. No, I've lost you. Can you take me to the line 18 again? 19 Q. Yes, sir. The left-hand column. 20 A. Yes. 21 Q. Under case two, the third paragraph. 22 A. Right. 23 Q. It is the third line down. 24 A. Yes, I've got it. 25 Q. "He paced the floor throughout the day." You PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 624 1 see it? 2 A. I do. 3 Q. Now talking about Case C. Go over in the 4 right-hand column. 5 A. Um-hum. 6 Q. The second paragraph of that column, the third 7 line, where it talks about Ms. C. 8 A. Yes. 9 Q. It says, "Ms. C began complaining that she had 10 to move her legs back and forth and pace constantly to 11 relieve anxiety. On examination, she constantly 12 shifted her legs while seated and would get up from 13 the chair many times to walk around the office." Have 14 I read that correctly? 15 A. You have, indeed. 16 Q. Okay. Now, the opinions that you desire to 17 give that you claim is supported by good science -- 18 A. Yes. 19 Q. -- is that in this case, William Forsyth took 20 Prozac, and because of that, developed akathisia? 21 A. Yes. 22 Q. And that akathisia caused him to become 23 suicidal or commit a suicidal/homicidal act, correct? 24 A. That's correct. 25 Q. All right. Now, here's the evidence that we PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 625 1 have so far in the trial, and the evidence -- have you 2 been sitting through to watch testimony? 3 A. No, I haven't been sitting through all of it. 4 Q. Well, I'll explain to you that Mr. Forsyth 5 first got Prozac on the 22nd of February, and 6 throughout that time, we've heard so far from the 7 testimony from his son, Mr. Forsyth, Jr., and I have 8 recorded his observations of his father at all the 9 times he saw him. 10 The first day after Prozac seemed pretty good. 11 Second day after Prozac he seemed to have a panic 12 attack, quiet, calm, not jumping around. Visit him in 13 the hospital, quiet, calm. The night before his death 14 after he got out of the hospital, calm, sitting, not 15 pacing, subdued demeanor and so on. You also have 16 read the Castle Medical Center records for 17 Mr. Forsyth? 18 A. I have, yes. 19 Q. And you will tell the Court, I think, that the 20 word akathisia, as an observation or a clinical 21 impression or a diagnosis, does not exist in those 22 records, does it? 23 A. No, it doesn't. 24 Q. And, in fact, the items we talked about just a 25 second ago, the fidgety, swinging legs, these PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 626 1 symptoms, rocking back and forth, pacing, inability to 2 sit or stand still, there's no record of that in his 3 medical record, is there? 4 A. I believe there is. I'm just a bit curious 5 here, Mr. See, because we seemed to have got on to the 6 question of specific causation in the case of 7 Mr. Forsyth. I think there's quite good evidence from 8 the medical records that this man was akathisic. 9 I will want in the Court tomorrow, if the judge 10 believes that the question of general -- that the 11 scientific evidence that's been brought to the 12 question of general causation is appropriate, I will 13 want to talk to the Court tomorrow about akathisia in 14 a much broader form than you have outlined it here. 15 Q. Now, getting back to my question. My question 16 is, none of these symptoms are recorded in the Castle 17 Medical records for Mr. Forsyth, are they? 18 A. You don't have to record them in just those 19 words. The American -- APA -- let's repeat. These 20 are not criteria for akathisia. These are criteria 21 for antipsychotic-induced akathisia. Not 22 Fluoxetine-induced akathisia. You do not have to 23 record the word pacing. 24 It is noted in the records that Mr. Forsyth was 25 not sitting down participating in groups. He was on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 627 1 the move in the hospital. Ordinarily, akathisia is 2 not something the clinician notices is happening to 3 the patient unless it's extraordinarily severe. They 4 get it on self-report from the patient. 5 Q. I want to ask you right now, Dr. Healy, while 6 you're under oath and you have that in mind, I'm sure, 7 the fact is akathisia is a clear-cut event, isn't it? 8 A. No, it's not. Akathisia can be a very subtle 9 event. I have written fairly extensively on this, 10 Mr. See, and I hope I will have the opportunity 11 tomorrow to enlighten you. 12 I might add, Mr. See, that in the case of the 13 recognized expert on the phenomenon, Theodore Van 14 Putten, there is no question that Fluoxetine causes 15 akathisia. In the case of the recognized handbook on 16 drug-induced side effects in the USA, Frank Ayd 17 Lexicon, it is clearly stated that Prozac's propensity 18 to cause akathisia is well-known. 19 Q. So my question for you is this: You rely, do 20 you not, on the Rothschild case report, these three 21 patients -- 22 A. Not only on the Rothschild case report. 23 Q. Dr. Healy, remember our bargain now. You've 24 got to let me finish first. You rely, in part, on the 25 Rothschild case report of three patients developing PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 628 1 akathisia, as we've read to the Court, for your 2 opinion that Prozac caused suicide in William Forsyth, 3 right? 4 A. Yes, I do. 5 Q. Okay. And you also told the Court you rely 6 upon your own case report -- 7 A. Yes, I did. 8 Q. -- for your opinion that Prozac caused suicide 9 in William Forsyth, correct? 10 A. That's right. 11 Q. But now the patients in your case report didn't 12 have akathisia, did they? 13 A. They did. 14 Q. Oh, they did? 15 A. Um-hum. The one that most closely resembled 16 Mr. Forsyth clearly did. 17 Q. Can you point to me the word akathisia in your 18 paper? 19 A. I haven't used the word akathisia in the paper, 20 but this man clearly had it. Mr. See, I will -- I 21 hope I have the opportunity to educate you about 22 akathisia more fully tomorrow. 23 Q. I was looking for one specific reference, 24 Doctor, and if you'll just give me one second. 25 A. I'd be happy to. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 629 1 THE COURT: Which paper is that that you're 2 showing him? 3 MR. SEE: The second paper I just showed him is 4 his own paper, Your Honor. 5 THE COURT: Is that an article or a declaration 6 or what? 7 MR. SEE: No, it's an article. 8 THE WITNESS: This is a peer-review article. 9 THE COURT: And that's 1991 or '99 or what? 10 THE WITNESS: 1991. 11 MR. SEE: It's the one where Prozac was given 12 first and a different antidepressant was given second. 13 THE COURT: Well, what is your definition of 14 akathisia? That seems to be, as you say, broader than 15 what Mr. See is saying. 16 THE WITNESS: Yes. I think Mr. See's 17 misleading the Court slightly because he's referred to 18 antipsychotic-induced akathisia which is more notably 19 likely to cause pacing and foot movements than 20 antidepressant-induced akathisia which is now realized 21 to do. He has not given the Court operational 22 criteria for akathisia at all. 23 Q (By Mr. See) Well, Dr. Healy, isn't it 24 correct that if there is such a thing as akathisia 25 induced by antidepressants like Prozac, that the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 630 1 American Psychiatric Association, their position is 2 the criteria for diagnosing it and recognizing it are 3 exactly the same? 4 A. No, they're not. Can I explain, Mr. See? If 5 you look at DSM-III -- 6 Q. No. No. 7 A. Let me explain. I must explain this to you and 8 to the Court. 9 MR. SEE: Your Honor, can I ask that the 10 witness answer the question? It's going to take 11 forever. 12 THE COURT: Well, I'll allow him to answer the 13 question. 14 THE WITNESS: The APA in DSM-IV here have 15 criteria for drug dependence and they've criteria for 16 cocaine drug dependence, and opiate drug dependence, 17 and barbiturate drug dependence, and in each case the 18 criteria differ. It is the same with akathisia. 19 There is no reason to believe that the criteria for 20 neuroleptic-induced akathisia will be the criteria 21 that apply to other forms of akathisia. 22 THE COURT: Well, incidentally, you're both in 23 agreement that Dr. Healy qualifies as an expert in a 24 particular field? 25 MR. VICKERY: Certainly we are, Your Honor. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 631 1 THE COURT: What field are you -- 2 MR. VICKERY: What label do you put on 3 yourself? 4 THE WITNESS: Well, I would be happy to be 5 called a neuropsychopharmacologist like Dr. Pert 6 before me. I have to say at this point, I'm slightly 7 confused that we have jumped from the issue of general 8 causation as to how one would look at this issue to 9 the specific incident with Mr. William Forsyth. In a 10 way, it's been confusing. I hadn't expected to be 11 answering questions on this particular issue this 12 afternoon. 13 THE COURT: Well, are you -- 14 MR. SEE: I didn't hear, Doctor, what are you 15 an expert in? 16 THE WITNESS: Neuropsychopharmacology, Mr. See. 17 THE COURT: Mr. See, are you in agreement that 18 Dr. Healy qualifies as an expert in 19 neuropsychopharmacology? 20 MR. SEE: I am in agreement that he has those 21 qualifications. I only, obviously, dispute the 22 validity of science he applies in this case. 23 THE COURT: Very well. The Court finds 24 Dr. Healy qualified as such. 25 THE WITNESS: But -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 632 1 Q (By Mr. See) Doctor, sorry. If I could just 2 ask the questions and you respond to them. 3 A. Sure. 4 Q. Now, DSM-IV says, and you can read it after I 5 do, you have now just told the Court that 6 neuroleptic-induced akathisia is something 7 different -- something totally different. It's not 8 the same. You will have different symptoms and so on 9 than akathisia that may, and I say may, be induced by 10 antidepressants like Prozac. Now, here's the 11 question. Am I reading this correctly out of the 12 DSM-IV -- 13 A. Um-hum. 14 Q. -- serotonin specific reuptake inhibitor -- 15 now, that's -- 16 A. Prozac. 17 Q. -- drugs of a family like Prozac? 18 A. Um-hum. 19 Q. "The antidepressant medications may produce 20 akathisia that appears to be identical in 21 phenomenology and treatment response to 22 neuroleptic-induced akathisia." Will you take my word 23 that I've read that correctly? 24 A. I take your word that you have read that 25 correctly, but I would also note that these are not PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 633 1 operational criteria for antidepressant-induced 2 suicidal ideation. Sorry, akathisia. 3 Antidepressant-induced akathisia. Sorry. 4 I would also note that what Mr. See has read 5 out to the Court, unlike what he read first, which 6 were operational criteria for antipsychotic-induced 7 akathisia, he has not read criteria to the Court for 8 antidepressant-induced akathisia. 9 Q. Well, I've read the only criteria for akathisia 10 that are in this book, haven't I? 11 A. And we have agreed that these are -- that these 12 are criteria for antipsychotic-induced criteria, 13 haven't we? 14 And, Your Honor, I'm surprised that we're not 15 looking more at the issue of the validity of test, 16 retest as a method to look at the cause and effect 17 that I thought was the purpose of the hearing. 18 Q. It is the purpose, Doctor, and just give me a 19 minute. I have to stumble through in my own way. 20 A. Okay. 21 Q. Dr. Healy, you have just told the Court under 22 oath at a hearing where the Court is trying to 23 determine whether the science that you are applying is 24 valid, you've just told the Court, when I asked you 25 akathisia is a clear-cut phenomenon and you answered PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 634 1 no. And now, I want to ask you if, in your 2 declaration, dated October the 5th, 1997, that's filed 3 in this case, in Paragraph 17 on Page 6, isn't it 4 correct that you write, "Akathisia similarly is a 5 clear-cut phenomenon"? 6 A. Mr. See, I'm happy to confirm that that's 7 what's written, but I would also like to point out to 8 you that what may be a clear-cut phenomenon may not be 9 something that's recognized. There's a difference 10 between the phenomenon being clear cut and people 11 looking at it and recognizing what's happening. 12 Q. Okay. Now, you were talking about 13 challenge/rechallenge and we covered your own case 14 report of '91, we've covered the Rothschild article. 15 Now, tell me what other challenge/rechallenge you rely 16 upon to show that Prozac causes human beings to kill 17 themselves? 18 A. In the Wirshing series of cases, there is also 19 a challenge and rechallenge case, and there's a 20 further thing in the Wirshing series of cases which 21 any pharmacologist would recognize as good proof of 22 cause and effect, which is an apparent dose response 23 relationship between the dose of the drug and the 24 phenomenon being witnessed. And there's an 25 inadvertent challenge/rechallenge which was done by PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 635 1 Cynthia Hoover, using Prozac in the first case and 2 producing treatment emergent suicidality and later on 3 giving Imipramine, a drug active on the serotonin 4 system, and reseeing the same phenomenon. 5 Q. Now, in -- 6 A. I have to say this: Test, retest is not the 7 only way for order in this area. 8 Q. That's what we're talking about right now, if 9 you don't mind, because that's the way you say is the 10 best way to do it, right? 11 A. Yes, absolutely. 12 Q. Was there akathisia in the Wirshing case 13 series? 14 A. There is, yes. And I have to say the Wirshing 15 case series includes Theodore Van Putten as one of the 16 authors and after that point in time, before he died, 17 he was the leading expert in the world on akathisia, 18 and he said that this was produced by Fluoxetine. 19 THE COURT: How do you spell that person's 20 name? 21 THE WITNESS: Van Putten is V-A-N P-U-T-T-E-N, 22 Theodore was his first name, and he's the second 23 author, I believe, on the Wirshing series of case 24 reports. Wirshing is W-I-R-S-H-I-N-G. 25 Q (By Mr. See) And were there physical PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 636 1 manifestations of the akathisia in the Wirshing case 2 series? 3 A. In some other cases there are, but Dr. Van 4 Putten is clearly on the record as the leading expert 5 in the world of saying that you don't have to have 6 obvious physical manifestations to have akathisia. 7 MR. SEE: I don't know what the Court wants to 8 follow for it's schedule for today. 9 THE COURT: About how much longer do you think 10 you'll be? 11 MR. SEE: Well, I don't have the Wirshing and 12 Van Putten paper, and I'd like to question him on it, 13 and I probably have another 30 minutes. 14 THE COURT: Well, why don't we go until 4:30. 15 THE WITNESS: Mr. See, can I help you out 16 further in terms of trying to lay out the basis for my 17 belief that there is a cause and effect relationship 18 here? 19 Q (By Mr. See) Not just right now. Thanks. 20 I'm interested in asking you questions about 21 your most recent declaration, which was dated March 8, 22 1999. 23 A. Yes. 24 MR. SEE: And if I may, Your Honor, I'll just 25 hand the doctor a copy. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 637 1 THE COURT: That was March 3? 2 MR. SEE: It's March 8th, Your Honor. 3 THE WITNESS: This is the most recent one, Your 4 Honor. Yesterday's. 5 Q (By Mr. See) Now, in that declaration you 6 make specific reference, in Paragraph 9, I believe it 7 is -- 8 A. Yes. 9 Q. -- to your interpretation of Table 7 of the 10 Jick study? 11 A. Um-hum. Yes. 12 Q. And you specifically say that Table 7 of the 13 Jick study analyzes, the effect seen in patients in 14 the first 30 days after they first started taking 15 Prozac, right? 16 A. Yes. 17 Q. That is the effect after the first 18 prescription, correct? 19 A. Yes. 20 MR. SEE: If I may, Your Honor, let me hand 21 Dr. Healy a copy of the Jick study? 22 THE COURT: You may. 23 Q (By Mr. See) Now let me draw your attention, 24 Dr. Healy, to Table 7. 25 A. Um-hum. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 638 1 Q. You have to answer audibly, sir. 2 A. Yes. Yes, of course, Mr. See. 3 Q. Now, whereas, you put in your declaration that 4 part of your reliance upon the Jick study is Table 7 5 that analyzes what happens after patients in the first 6 30 days after they first take the drug, in fact -- if 7 you'll just let me finish, Doctor -- in fact, Table 7 8 analyzes what happens in the first 30 days after the 9 patient last takes the drug; isn't that correct, sir? 10 A. No, it's not. It's by time since last 11 prescription. 12 Q. Yes. And the text that talks about Table 7 is 13 under it, and it says, "Effective time from last 14 prescription to suicide," correct? 15 A. Yes. 16 Q. And look over in the left-hand column. There's 17 another paragraph of text where it says, "The 18 effective time from first prescription to suicide," 19 you see that? 20 A. No, you'll have to point this out to me. 21 MR. SEE: If I may, Your Honor? 22 THE WITNESS: Yes. The heading, right. Yes. 23 Q (By Mr. See) Do you see it, Doctor. 24 A. Yes. 25 Q. In fact, the reference contained in Paragraph 9 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 639 1 of your latest declaration talking about the 2 scientific importance of Table 7 of the Jick study 3 that you say is an analysis of what happens in the 4 first 30 days after you first take the drug, actually 5 is based on a table that's not about that at all? 6 A. No, that's not clear. That's not the case if 7 you read what I wrote. Can I repeat? Can I read out 8 what I wrote to you, Mr. See? What I've said is this 9 indicates that the patients were most likely to commit 10 suicide in the first few weeks after receiving the 11 Prozac. 12 This is not receiving it for the first time. 13 This is not receiving an antidepressant for the first 14 time. This is not the first prescription of 15 antidepressant. This is in the first few weeks after 16 they have been put on the last antidepressant that 17 they have been put on. I think my phrasing is 18 entirely consistent with the Jick paper. 19 Q. Well, you say the first few weeks after 20 receiving Prozac, don't you? 21 A. Um-hum. Yes, I do. The first few weeks, I 22 believe, would cover the period of 30 days. 23 Q. Now, do you have a copy of this draft 24 manuscript that you talked about where you supposedly 25 come up with a -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 640 1 A. Yes. Well, the Court has it and I don't have 2 it here with me on the stand. It's what I showed 3 Mr. See yesterday. 4 MR. SEE: I would appreciate that. 5 THE COURT: What are you asking for? 6 MR. SEE: It is the manuscript that Dr. Healy 7 has just testified about where he says he's come up 8 with this rate right here. 9 THE COURT: I think that should be attached to 10 the plaintiffs' motion. 11 MR. SEE: It is, and I have one. I just wanted 12 one to hand the doctor. 13 THE COURT: Oh. Sure. 14 MR. SEE: If I may, Your Honor, let me hand you 15 a copy of that manuscript, Dr. Healy. 16 Q. And that is the manuscript in which you say or 17 you came up with this 15.8 per 100,000 suicide in mild 18 depression number, correct? 19 A. Primary-care depression, yes. 20 Q. May I refer you to Page 4 of your manuscript? 21 A. Yes. 22 Q. It -- specifically in the first full paragraph 23 in which you write -- 24 THE COURT: Excuse me one minute. I want to be 25 sure I'm on the -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 641 1 MR. SEE: Yes, sir. 2 THE COURT: This is not his declaration, but 3 it's the article? 4 MR. SEE: It is a draft article. There's a 5 published article by Dr. Boardman and then there's a 6 draft manuscript by Dr. Healy entitled, "Lifetime 7 Suicide Risk." 8 THE COURT: I have the wrong article. 9 THE WITNESS: Page 4, Your Honor, and just 10 before the method section. You may be on the wrong 11 article. 12 MR. SEE: It is not yet published, Your Honor, 13 so it is on typewriting. 14 THE WITNESS: It is after the Boardman article, 15 Your Honor. It is after the article you were flipping 16 through. I can hand you this copy because I've read 17 what Mr. See has. 18 THE COURT: No, that's okay. Thank you. 19 THE WITNESS: It's further back. Can I -- 20 THE COURT: That's why we have a local rule to 21 tab your exhibits. 22 THE WITNESS: Can I hand you this copy and take 23 your copy and I can find it within your copy for 24 myself? 25 THE COURT: Well, I have -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 642 1 THE WITNESS: I'll hand it back to you. This 2 article. Page one, two, three, four. 3 THE COURT: Thank you. 4 THE WITNESS: You bet. Mr. See. 5 THE COURT: Please proceed, Mr. See. 6 Q (By Mr. See) On Page 4 in the first full 7 paragraph, you have written, "To establish definitive 8 rates of suicide among the range of affective 9 disorders would require a prospective community based 10 epidemiological study, which is expensive and time 11 consuming." Have I read that correctly? 12 A. You have, indeed. 13 Q. So what you said is, in order to actually find 14 out what the rate is, you have to do a study; isn't 15 that right? 16 A. No. What I've said is to establish definitive 17 rates -- what we're looking at here, Mr. See, is 18 trying to decide whether the figure should be 15.7, 19 15.8, or 15.9. 20 Q. Would you turn to Page 6? 21 A. I will. 22 Q. You've made a number of assumptions -- 23 A. Yes. 24 Q. -- in this paper, have you not? 25 A. I have, yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 643 1 Q. So in other words, there was no actual counting 2 of depressed patients in this particular area? 3 A. There was extremely careful counting of 4 depressed patients in this area. Every single 5 depressed patient was counted. We went back through 6 the records. Dr. Boardman went back through the 7 records, and if you'll read through what's written 8 here, you will see we have erred on the side of 9 caution. We've assumed that everybody who commits 10 suicide, and there's been an awful lot of people who 11 commit suicide who weren't clearly depressed, were 12 depressed, so this boosts the rate from 15.8. 13 The definitive study, if we were to do it, I 14 would suspect would produce a rate lower than 15.8, 15 Mr. See. 16 Q. If you would just look on Page 6, one, two, 17 three, four, five -- about seven lines up. You write, 18 "We have assumed that the frequency of primary 19 effective disorder in those with no confirmed 20 psychiatric diagnosis is the same as in the remainder 21 of the sample." Have I read that correctly? 22 A. Yes, you have. 23 Q. So that is an assumption? 24 A. It is an assumption favorable to you, not to 25 the plaintiffs. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 644 1 Q. Now, let's turn to Page 7 in the middle 2 paragraph. You say, "Among 115 suicides, 41 were 3 primary affected disorders all depressives who have 4 never been known to have contact with psychiatric 5 service, and thus, can be assumed to have been seen 6 only in primary care." I've read that correctly? 7 A. Yes, you have. 8 Q. That is another assumption? 9 A. No. No. This is not an assumption. This is 10 established fact. We have possibly misworded this, 11 but this is a group of patients who were only seen in 12 primary care. 13 Q. But you've said assumed there, right? 14 A. The word assumed -- but if you think through 15 the implications of what we've said, Mr. See, if we 16 remove from that 41, right, any people who may have 17 had secondary care contact, the figure of 15.8 drops. 18 For every patient we remove, it drops. 19 Q. All right. Now, let's go down to the next 20 paragraph on Page 7 where you say, "The estimate of 21 the rate of suicide in this primary care group 22 depends, as do other estimates, on the assumed 23 prevalence estimate for the psychiatric disorder." 24 Right? I've read that right? 25 A. You have, yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 645 1 Q. Turn over to the next page, please. Page 8. 2 In the first paragraph you're talking about, at the 3 end there, about in Holland where rates of contact 4 with mental health services run at 15 percent of 5 affective disorders. Do you see that? 6 A. I do. 7 Q. And in the last line there there's another 8 assumption, "Assuming a one in ten referral rate." 9 A. Mr. See, I have to point out to you here that 10 this is the natural language to use in a scientific 11 paper. If we were to talk about these issues in the 12 court context, I wouldn't be using this word. My 13 language would be a lot stronger and more causal. 14 Q. Well, we're talking about the language that you 15 use when you're exposing your work to other 16 scientists. 17 A. No. There are conventions that are used when 18 writing scientific articles. 19 Q. Now, on Page 9, please. 20 A. I'm happy to go to Page 9. 21 Q. Now, the first line says, "Assuming a lifetime 22 prevalence of primary affective disorders," so there's 23 another assumption? 24 A. Mr. See, can I point out and point out to the 25 Court, what we're talking about here is the best -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 646 1 when I say assuming a lifetime prevalence rate, we're 2 taking the best established U.S. figures and we're 3 assuming they may be right. All of the other 4 assumptions we can make, all of the other studies we 5 could look at give much higher rates, and if we -- 6 I've been extremely careful in this article to make 7 sure that all of our assumptions favor Eli Lilly's 8 case. 9 Q. And in the next sentence you make another 10 assumption, "Assuming a 60-year risk period," right? 11 A. Could I just ask you? You would, of course, 12 like me to make the assumptions that favor your case 13 rather than the case of the plaintiffs? 14 Q. You know, Doctor, all I'm asking you is whether 15 these assumptions have been made in your paper? 16 Simple. 17 A. You have to understand what using the word 18 assuming means. Assuming means that we're going to 19 take it as read, that the largest epidemiological 20 study ever undertaken in the world, undertaken here in 21 the USA, is right. We're not going to call that into 22 question. That's what the word assuming means in that 23 context. We could call it into question, but we're 24 not going to, and it favors you that we don't. 25 Q. You're familiar with the American College of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 647 1 Psychoneuropharmacology or Neuropsychopharmacology? 2 A. Yes, I am. 3 Q. That is a group of psychopharmacologists by 4 invitation only? Every member being invited to join 5 is a recognized expert in the field? 6 A. It's recognized as one of the leading groups in 7 the field, yes. 8 Q. Now, what I want to ask you is whether you 9 agree -- and if I may, Your Honor, I'll hand the 10 Doctor this consensus statement of the American 11 College of Neuropsychopharmacology. 12 If you'll look over on Page 5 in the second 13 paragraph on the page. 14 A. Yes. 15 Q. About the middle of that paragraph it is stated 16 by the American College of Neuropsychopharmacology 17 that "The rate of suicide in depressed patients is 18 about 40 to 60-fold greater than the general 19 population." Do you see that statement? 20 A. I do. 21 Q. And do you accept that statement? 22 A. No, I don't. This is out of date. 23 THE COURT: What is the date of it? 24 THE WITNESS: This is March 2, 1992, Your 25 Honor. What we believe -- this is an extremely PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 648 1 important point to explain. For many years in the 2 field, several senior people had said that the rates 3 of suicide for people who are depressed are 4 15 percent. At some point during the life, 15 in 5 every 100 people who were depressed will commit 6 suicide. 7 This is a figure that has appeared in all of 8 the textbooks. It's a figure that's reflected here in 9 this particular document. It's a figure that Lilly 10 and other pharmaceutical companies have used to market 11 their compounds. They've told general psychiatrists, 12 primary care physicians, look, you know, there's this 13 appalling rate of suicide. You would be negligent if 14 you didn't put the person that you're seeing who's 15 depressed on treatment in order to reduce the 16 likelihood that they were going to commit suicide. 17 Now, I have talked and interviewed Dr. Samuel 18 Guze, who is the person who produced the figure, and 19 he agrees that it is out of date and inapplicable. 20 And the work that you have in the draft article that 21 we've submitted to the Court has addressed this issue. 22 The first piece -- 23 THE COURT: What was that doctor's name? 24 THE WITNESS: Dr. Samuel Guze. He was a 25 professor of psychiatry in Washington University, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 649 1 St. Louis, and probably one of the people most 2 responsible for DSM-III, and ultimately, DSM-IV, which 3 you've heard about this afternoon. He's one of the 4 senior figures in U.S. psychiatry. 5 THE COURT: How do you spell his name? 6 THE WITNESS: G-U-Zed-E. 7 THE COURT: G-U -- 8 THE WITNESS: Zed. Z. G-U-Z-E. Zed we say 9 over in the U.K. But he has agreed with me that this 10 figure is seriously out of date. The figure was drawn 11 from a population of hospitalized, severely depressed 12 patients, who were being treated during the 1930s, 13 '40s, '50s, often before the days when we had any 14 treatments at all that would help. 15 We now recognize -- for instance, Prozac is a 16 drug that does not work in hospitalized depressed 17 patients. It's used primarily in primary-care 18 depression. People out in the community. These 19 people do not have a rate of suicide of 15 percent, do 20 not have a rate of suicide, 60 to -- 40 to 60-fold 21 higher than the general population. 22 We have been trying to work out what the rate 23 for suicide during the lifetime of people who are 24 mildly to moderately depressed in primary care in the 25 U.S. or the U.K. would be, and we come up with a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 650 1 figure of 0.6 percent. We come up with the figures of 2 15.8 per 100,000 per year. We come up with good 3 indications that mildly depressed patients in the 4 community are probably at lower risk of suicide than 5 the average person in the community, and it's only 6 when something else happens that they become at 7 greater risk. Something else such as a drug which 8 makes them akathisic and nervous and anxious. 9 THE COURT: Thank you. Please proceed, 10 Mr. See. 11 Q (By Mr. See) Now, in your -- look at -- 12 THE COURT: Sorry. Actually, we've gone past 13 4:30, so maybe we better continue until tomorrow at 14 9:00. 15 MR. SEE: Very good. 16 (Whereupon, the proceedings were adjourned at 17 4:33 p.m. to be reconvened on Wednesday, March 18 10, 1999 at 9:00 a.m.) 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 651 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 9, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 17, 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