992 1 IN THE UNITED STATES DISTRICT COURT 2 DISTRICT OF WYOMING 3 -------------------------------------------------------- 4 THE ESTATES OF DEBORAH MARIE TOBIN and ALYSSA ANN TOBIN, deceased, by 5 TIMOTHY JOHN TOBIN, personal representative; and THE ESTATES OF 6 DONALD JACK SCHELL and RITA CHARLOTTE SCHELL, deceased, 7 by NEVA KAY HARDY, personal representative, 8 Plaintiffs, Case No. 00-CV-0025-BEA 9 vs. May 29, 2001 Volume VI 10 SMITHKLINE BEECHAM PHARMACEUTICALS, 11 Defendant. ----------------------------------------------------------- 12 13 14 TRANSCRIPT OF TRIAL PROCEEDINGS 15 16 Transcript of Trial Proceedings in the above-entitled 17 matter before the Honorable William C. Beaman, Magistrate, 18 and a jury of eight, at Cheyenne, Wyoming, commencing on the 19 21st day of May, 2001. 20 21 22 23 Court Reporter: Ms. Janet Dew-Harris, RPR, FCRR Official Court Reporter 24 2120 Capitol Avenue Room 2228 25 Cheyenne, Wyoming 82001 (307) 635-3884 993 1 A P P E A R A N C E S 2 For the Plaintiffs: MR. JAMES E. FITZGERALD Attorney at Law 3 THE FITZGERALD LAW FIRM 2108 Warren Avenue 4 Cheyenne, Wyoming 82001 5 MR. ANDY VICKERY Attorney at Law 6 VICKERY & WALDNER, LLP 2929 Allen Parkway 7 Suite 2410 Houston, Texas 77019 8 For the Defendant: MR. THOMAS G. GORMAN 9 MS. MISHA E. WESTBY Attorneys at Law 10 HIRST & APPLEGATE, P.C. 1720 Carey Avenue 11 Suite 200 Cheyenne, Wyoming 82001 12 MR. CHARLES F. PREUSS 13 MR. VERN ZVOLEFF Attorneys at Law 14 PREUSS SHANAGHER ZVOLEFF & ZIMMER 225 Bush Street 15 15th Floor San Francisco, California 94104 16 MS. TAMAR P. HALPERN, Ph.D. 17 Attorney at Law PHILLIPS LYTLE HITCHCOCK 18 BLAINE & HUBER, LLP 3400 HSBC Center 19 Buffalo, New York 14203 20 INDEX TO WITNESSES DEFENDANT'S PAGE 21 PHILIP WANG, M.D. Direct - Mr. Preuss 995 22 Cross - Mr. Vickery 1041 Redirect - Mr. Preuss 1136 23 SHERRY MCGRATH 24 Direct - Mr. Gorman 1137 Cross - Mr. Fitzgerald 1175 25 Redirect - Mr. Gorman 1196 Recross - Mr. Fitzgerald 1197 994 1 INDEX TO WITNESSES CONTINUED 2 DEFENDANT'S PAGE JUDITH LAFFERTY 3 Direct - Mr. Gorman 1198 Cross - Mr. Fitzgerald 1212 4 ROBERT HARDY 5 Direct - Mr. Gorman 1220 Cross - Mr. Fitzgerald 1228 6 INDEX TO EXHIBITS 7 PLAINTIFFS' RECEIVED 8 61 1185 9 DEFENDANT'S JJ 1044 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 995 09:06:49 1 P R O C E E D I N G S 09:06:49 2 (Trial proceedings reconvened 09:06:49 3 9:00 a.m., May 29, 2001.) 09:06:49 4 THE COURT: Good morning. I trust everyone had a 09:06:49 5 pleasant holiday weekend. 09:06:49 6 What's your schedule with your witness? 09:06:49 7 MR. VICKERY: She's here, Your Honor. Counsel will 09:06:49 8 go ahead with their case and we'll work her in whenever is 09:06:49 9 convenient with them. 09:06:49 10 THE COURT: Very well. 09:06:49 11 If you would, please, Mr. Preuss, call your next 09:06:49 12 witness. 09:06:49 13 MR. PREUSS: Thank you, Your Honor. Defendant will 09:06:49 14 call Dr. Philip Wang at this time. 09:07:27 15 THE CLERK: Please state your name and spell it for 09:07:27 16 the record. 09:07:27 17 THE WITNESS: My name is Philip Wang, 09:07:27 18 P H I L I P, W A N G. 09:07:27 19 Can you hear me? 20 21 PHILIP WANG, M.D., 22 called as a witness on behalf of the Defendant, being first 23 duly sworn, testified as follows: 24 DIRECT EXAMINATION 09:07:37 25 Q. (BY MR. PREUSS) Good morning, Mr. Wang. 996 09:07:41 1 A. Good morning. 09:07:42 2 Q. Are you a physician, sir? 09:07:43 3 A. Yes, I am a physician. 09:07:44 4 Q. And where do you practice, sir? 09:07:46 5 A. I practice -- well, I don't practice now but I am from 09:07:49 6 Boston, Massachusetts. 09:07:50 7 Q. And where do you work, sir? 09:07:51 8 A. I work at the Brigham and Women's Hospital at Harvard 09:07:57 9 Medical School. I have an appointment at Harvard Medical 09:08:00 10 School in psychiatry, in medicine and health care policy. 09:08:04 11 I'm also an instructor of epidemiology at the Harvard School 09:08:09 12 of Public Health. 09:08:09 13 Q. Could you outline for us your educational background, sir, 09:08:13 14 beginning with college. 09:08:15 15 A. Sure. I attended Harvard College and graduated in 1984 09:08:18 16 with a degree in biochemistry. I received my medical degree 09:08:21 17 from Harvard Medical School in 1989. I completed my 09:08:25 18 psychiatry residency in -- at the Beth Israel Hospital which 09:08:30 19 is a Harvard teaching hospital in 1993. 09:08:33 20 After that I attended graduate school in epidemiology 09:08:37 21 and received my Master's degree from the Harvard School of 09:08:41 22 Public Health in 1996. 09:08:42 23 And I received my doctoral degree in epidemiology, 09:08:46 24 again from the Harvard School of Public Health in 1998. 09:08:51 25 Q. Are you board certified, sir? 997 09:08:53 1 A. Yes, I'm board certified in psychiatry. 09:08:56 2 Q. And what does it mean to be board certified, sir? 09:08:59 3 A. Board certification means you've passed several exams set 09:09:02 4 up by the board that's meant to certify psychiatrists. One 09:09:07 5 is a written exam. Another is an actual exam with patients 09:09:11 6 to make sure that you are competent in the care of 09:09:14 7 psychiatric patients. 09:09:16 8 And I passed my board certification in 1994. 09:09:19 9 Q. You indicated that you had a residency in psychiatry at 09:09:23 10 Beth Israel Hospital, sir. How long was that residency? 09:09:27 11 A. The residency is for four years. It also includes a 09:09:29 12 one-year medical internship as well. 09:09:32 13 Q. And was that residency in general psychiatry? 09:09:37 14 A. It was in general psychiatry. 09:09:39 15 Q. And I think you indicated that after you got your 09:09:42 16 residency program completed you then embarked upon further 09:09:46 17 education in the area of epidemiology; is that right? 09:09:49 18 A. Yes. After I completed my training in psychiatry, I then 09:09:52 19 went to graduate school in epidemiology for five years. 09:09:58 20 Q. And that culminated in your doctorate in epidemiology? 09:10:01 21 A. Yes. I received both a Master's degree and also a 09:10:04 22 doctorate in epidemiology. 09:10:07 23 Q. You indicated you were an instructor at Harvard Medical 09:10:10 24 School, sir? 09:10:11 25 A. Yes. 998 09:10:12 1 Q. And who do you instruct or teach, sir? 09:10:15 2 A. Well, I teach at two levels. I teach in classrooms. I 09:10:20 3 teach the introductory psychiatric epidemiology course at the 09:10:25 4 Harvard School of Public Health. 09:10:26 5 I also teach at the individual level. I instruct 09:10:29 6 physicians who are in clinical fellowships on how to do 09:10:33 7 psychiatric -- pharmacoepidemiologic research. I currently 09:10:38 8 have five physicians that I'm teaching. Three are 09:10:43 9 neurologists -- three are oncologists, one is a neurologist 09:10:47 10 and one is a general medical physician. 09:10:49 11 Q. And oncology involves cancer? 09:10:52 12 A. Sorry. Oncologists are doctors who specialize in 09:10:58 13 treating cancer. Neurologists are specialists who treat 09:11:02 14 patients with nerve disorders. And a general medical doctor 09:11:05 15 is probably the doctor you would see for all of the other 09:11:09 16 sort of nonspecialized conditions. 09:11:14 17 Q. Do you hold any hospital appointments, sir? 09:11:17 18 A. Yes, I'm an associate physician at the Brigham and Women's 09:11:20 19 Hospital and I'm an associate psychiatrist at the Beth Israel 09:11:25 20 Hospital in Boston. Both of these are teaching hospitals of 09:11:27 21 Harvard Medical School. 09:11:29 22 Q. When you say teaching hospitals, what do you mean, sir? 09:11:32 23 A. They're centers where Harvard Medical School actually 09:11:36 24 trains its medical students, so they come to these hospitals 09:11:39 25 for practical training in medicine. 999 09:11:44 1 Q. And do you do research work, sir? 09:11:47 2 A. Yes, I do. 09:11:47 3 Q. And what type of research do you do? 09:11:54 4 A. I do three types of research. The first type of research 09:11:54 5 I do is called pharmacoepidemiology. And it is a long word. 09:11:58 6 You will hear us say it several times. It is the study of 09:12:01 7 whether drugs cause adverse reactions. And I specifically 09:12:05 8 study psychiatric medication. That's one type. 09:12:08 9 The second type of research I do is I look at how -- 09:12:13 10 it is called health services research. I look at how 09:12:16 11 psychiatric medications are used and I try to understand who 09:12:20 12 is getting these medications, are they getting appropriate 09:12:23 13 treatment, are these drugs being underused, overused, 09:12:27 14 misused. 09:12:29 15 There's a third type which is called randomized 09:12:32 16 controlled trials designed to see if we can improve how 09:12:36 17 psychiatric medications are used. 09:12:38 18 Q. And who pays for your research work, sir? 09:12:41 19 A. My research is almost exclusively funded by the National 09:12:46 20 Institute of Mental Health which is a federal agency, and 09:12:49 21 also I receive funding from the McArthur Foundation. 09:12:53 22 Q. And what is the National Institute of Mental Health, sir? 09:12:57 23 A. The National Institute of Mental Health, again, is part of 09:12:59 24 the federal government and it is responsible for doing two 09:13:03 25 things, really. One is to funnel research dollars into 1000 09:13:12 1 projects, to try to have research projects conducted in areas 09:13:15 2 that are in need of good work. 09:13:18 3 They also try to set the agenda, so if the National 09:13:21 4 Institutes of Health thinks that a certain area may not have 09:13:25 5 enough information in it, they may actually try to funnel 09:13:30 6 researchers into that area by, again, providing funds to do 09:13:34 7 research. 09:13:35 8 Q. Have you received any funding from SmithKline or Glaxo? 09:13:39 9 A. No, never. 09:13:40 10 Q. Have you published articles in the scientific journals? 09:13:43 11 A. Yes, I have. 09:13:44 12 Q. About how many, sir? 09:13:45 13 A. Approximately now about 40 publications in the 09:13:50 14 peer-reviewed literature. 09:13:51 15 Q. And what do you mean by peer-reviewed literature? 09:13:56 16 A. By peer review what I mean is journals when you submit an 09:14:00 17 article to them for publication will have three of your 09:14:03 18 peers, three other scientists, maybe two, review your work. 09:14:07 19 And you don't know who they are, so you're blind to who the 09:14:10 20 reviewers are. 09:14:12 21 They will make suggestions to you about how to 09:14:14 22 improve your work. They will try to catch errors. And they 09:14:18 23 may reject your paper if they think it is really awful. 09:14:21 24 So it is in place -- peer review is in place in order 09:14:25 25 to keep the standards high so what ends up being published in 1001 09:14:31 1 the literature is correct and high quality. 09:14:33 2 Q. And what journals? Can you give us a smattering of 09:14:37 3 journals you've published your articles in? 09:14:39 4 A. Yeah, I can do that. I've published in the Journal of the 09:14:43 5 American Medical Association, JAMA; the American Journal of 09:14:48 6 Psychiatry, the Journal of Clinical Epidemiology, the Journal 09:14:51 7 of General Internal Medicine. A variety of journals. 09:14:56 8 Q. And are you yourself a reviewer for certain of these 09:14:59 9 journals, sir? 09:15:00 10 A. Yes, I routinely review. I'm one of the peer reviewers 09:15:04 11 for people who submit their articles to journals. 09:15:08 12 Q. Are you a member of any professional organizations, sir? 09:15:11 13 A. I'm a member of the International Society for 09:15:13 14 Pharmacoepidemiology. I'm a member of the American 09:15:18 15 Psychiatric Association. I'm a member of the Massachusetts 09:15:20 16 Psychiatric Society. 09:15:23 17 Q. Do you serve on any national committees for the American 09:15:28 18 Psychiatric Association, sir? 09:15:29 19 A. Yes, I've served on three national committees that were 09:15:32 20 assembled by the American Psychiatric Association to create 09:15:37 21 practice guidelines. What these documents are are they're a 09:15:43 22 review of the entire scientific literature and they're 09:15:47 23 intended to present what the best, most effective and safe 09:15:51 24 treatment of psychiatric patients should be. 09:15:54 25 And the three committees that I serve on, I was a 1002 09:15:58 1 consultant to the work group that wrote the practice 09:16:02 2 guideline for the treatment of patients with depression. I 09:16:05 3 was also a consultant on the work -- to the work group that 09:16:10 4 prepared the practice guideline for the treatment of patients 09:16:14 5 with delirium, another condition. 09:16:16 6 I was also a consultant to the work group that put 09:16:19 7 together the practice guideline for the treatment of patients 09:16:21 8 with schizophrenia, another type of mental disorder. 09:16:24 9 Q. Are these guidelines then distributed to clinicians, 09:16:28 10 psychiatrists and others that may treat patients with 09:16:31 11 psychiatric disorders? 09:16:33 12 A. Yes, that's the intended purpose of these guidelines. 09:16:39 13 They're meant for the frontline practicing psychiatrist who 09:16:39 14 is seeing patients. And, again, it is to present to them 09:16:43 15 what the -- what is safe and effective treatment. And these 09:16:51 16 guidelines have been widely disseminated in both the United 09:16:55 17 States and actually internationally as well. 09:16:57 18 Q. Do you serve on any committees for the National Institutes 09:16:59 19 of Mental Health, sir? 09:17:01 20 A. Yes, actually next month I will serve on a special review 09:17:05 21 panel established by the National Institute of Mental Health 09:17:10 22 to review grants that it receives. 09:17:14 23 Q. Are they grants or are they grant proposals? 09:17:17 24 A. Proposals for grants. I shortened it to grants. The NIMH 09:17:22 25 receives lots of grant proposals, and they have limited 1003 09:17:25 1 funds. They can't give everybody who applies for a grant 09:17:29 2 funding. 09:17:31 3 So the NIMH, the National Institute of Mental Health, 09:17:36 4 establishes special review manuals to determine how to best 09:17:40 5 use the money. The money is all of ours. It is tax dollars. 09:17:44 6 What they use the special review panels for is to determine 09:17:47 7 which of the proposals for grants really deserve the money. 09:17:56 8 Q. I understand you recently received an award from the 09:17:59 9 American Psychiatric Association called the Health Services 09:18:01 10 Research Award. What was that for, sir? 09:18:03 11 A. It was specifically for my research on psychiatric 09:18:07 12 medications. 09:18:10 13 Q. Now, have you ever testified or worked on any other legal 09:18:15 14 case such as the one we're here today on? 09:18:18 15 A. No, no, I never have. 09:18:19 16 Q. This is the first time? 09:18:20 17 A. Yeah, it is the first time. It is actually quite hard to 09:18:24 18 do, to be away from my work, number one, and also my family, 09:18:30 19 my wife, and I just had a child, so it is tough to sort of 09:18:34 20 leave home. 09:18:38 21 Q. Doctor, you've used the word "epidemiology" and we've 09:18:43 22 heard about that in the last few days as the trial has 09:18:46 23 progressed. 09:18:46 24 Can you tell us what epidemiology is, sir? 09:18:50 25 A. Sure. Epidemiology is a scientific discipline in which 1004 09:18:57 1 the scientist, the epidemiologist is trying to see whether 09:19:04 2 the exposure -- by exposure I mean things like drugs, foods, 09:19:09 3 toxins in the environment -- whether these exposures cause 09:19:15 4 problems, problems like disease or adverse events. This is 09:19:19 5 what the field tries to study. 09:19:22 6 Q. Can you give us a example that would be an everyday 09:19:26 7 example of an epidemiology study? 09:19:28 8 A. Yeah. Maybe some of you or most of you are aware that 09:19:31 9 from earlier epidemiologic studies butter was shown -- if you 09:19:37 10 eat too much butter it was shown to be related to developing 09:19:40 11 heart disease and things like heart attacks. 09:19:43 12 That was older research. For all of us here who have 09:19:47 13 switched to margarine, there's now newer studies which show 09:19:51 14 that margarine may not be any better than butter. So these 09:19:56 15 are the types of studies that epidemiologists do. 09:20:00 16 Q. All right. How about pharmacoepidemiologists? What do 09:20:04 17 they study, sir? 09:20:05 18 A. It is a tough word. I have trouble saying it too. 09:20:08 19 Pharmacoepidemiologists specialize in studying prescription 09:20:12 20 medications. They try to -- they study whether prescription 09:20:18 21 medication use is associated with or causes problems, 09:20:23 22 disease, adverse conditions. 09:20:24 23 Q. And that's what you are, right? 09:20:26 24 A. Yes, sir, that is what I do. 09:20:30 25 Q. And what are they looking for? 1005 09:20:32 1 A. There's really two things they're trying to do. There's 09:20:34 2 two tasks. One task is pharmacoepidemiologists are trying to 09:20:41 3 identify whether drugs really do cause problems, whether they 09:20:45 4 really do pose public health threats. That's one thing they 09:20:50 5 try to identify. 09:20:51 6 They have an equally important task which is 09:20:55 7 identifying wrong claims about drugs, wrong claims that drugs 09:21:00 8 cause adverse events and these are two equally important 09:21:04 9 tasks. 09:21:05 10 Q. Why is the latter task, looking for wrong claims, as you 09:21:09 11 referred to it, important in terms of public health? 09:21:14 12 A. Well, if -- wrong claims can cause damage, especially with 09:21:19 13 psychiatric medications. Psychiatric medication use is 09:21:23 14 stigmatized and so there's tremendous underuse by people who 09:21:27 15 need treatment. 09:21:30 16 And to give you an example of this, I published a 09:21:33 17 study last year in the Journal of General Internal Medicine. 09:21:36 18 I was the first author. We examined psychiatric medication 09:21:39 19 use in the entire U.S., and we looked specifically at 09:21:51 20 patients with depression and patients with anxiety disorders. 09:21:51 21 And what we observed was among these types of 09:21:54 22 patients with these disorders, depression and anxiety 09:21:56 23 disorders, only about 14 percent were receiving treatment 09:22:00 24 that you could in any shape or form call minimally adequate. 09:22:05 25 14 percent. 1006 09:22:06 1 We have also subsequently followed up and found that 09:22:09 2 among the people who do get treatment -- again, very few get 09:22:14 3 treatment, but among people who do get treatment, there are 09:22:17 4 tremendous delays. People really hesitate and wait before 09:22:20 5 they try to seek care. 09:22:22 6 We found on average people wait 11 years before 09:22:26 7 having their first symptom and actually seeking some kind of 09:22:31 8 treatment. And so this is -- you can imagine, then, what the 09:22:36 9 damage would be if you had wrong claims about a drug. People 09:22:41 10 who are -- there's already underuse and if there's wrong 09:22:45 11 claims out there, there may be even more underuse by people 09:22:50 12 who really need the treatments. 09:22:51 13 If there's wrong claims about a drug causing an 09:22:54 14 adverse event, there may be longer delays, even longer than 09:22:59 15 11 years. Even among people who do get treatment, they may 09:23:04 16 needlessly worry if their drug causes an adverse event. 09:23:09 17 Q. Doctor, could you tell us how epidemiologists go about 09:23:13 18 figuring out whether or not a drug causes a specific side 09:23:17 19 effect or disease process? 09:23:19 20 A. Sure. It is a long-established, well-established method. 09:23:25 21 And I have a little diagram here. Is it okay if I draw on 09:23:28 22 the -- 09:23:29 23 Q. If you would, please. Maybe turn it around so that 09:23:31 24 everybody can see. 09:23:37 25 MR. PREUSS: Your Honor, we previously marked that as 1007 09:23:40 1 Defendant's Exhibit JJ. 09:23:43 2 THE WITNESS: Can everyone see? Can everyone hear 09:23:48 3 me? Please tell me if you can't hear me. 09:23:52 4 Q. (BY MR. PREUSS) Well, let's start at the beginning, then, 09:23:55 5 Doctor. What's the first thing to think about? 09:23:58 6 A. I'll try to speak up so you can hear me. What I'm writing 09:24:02 7 here first is questions and I'm writing here on the 09:24:07 8 right-hand side answers. And this ugly thing I'm drawing 09:24:18 9 here -- you will have to excuse my artistic abilities. This 09:24:23 10 is supposed to be a river. So that's a river. 09:24:28 11 Q. You have a river then between the questions and the 09:24:30 12 answers? 09:24:32 13 A. Questions and answers. And let me explain why I put this 09:24:35 14 thing up here. 09:24:36 15 Pharmacoepidemiologists especially start by asking 09:24:40 16 questions. They start by asking questions about medications: 09:24:44 17 Is it possible that a medication causes an adverse event? Is 09:24:48 18 it possible that a medication doesn't cause the adverse 09:24:50 19 event? These are the types of questions 09:24:52 20 pharmacoepidemiologists start with. 09:24:56 21 They try to answer those questions. They try to 09:24:59 22 actually show, actually show whether the medication causes 09:25:03 23 the adverse event or whether the drug actually doesn't cause 09:25:07 24 the adverse event. They actually seek answers. 09:25:11 25 I put the river in here because this is the task of 1008 09:25:17 1 the epidemiologist. The task of the epidemiologist is to go 09:25:20 2 from questions concerning whether drugs cause adverse events 09:25:24 3 over the river to getting their answers: Yes, the drug 09:25:28 4 really does cause the adverse event; or no, the drug actually 09:25:33 5 doesn't cause the adverse event. So hopefully that's clear. 09:25:38 6 Where do epidemiologists get their questions from? 09:25:42 7 There's a couple of places and I'll put them down. I'm first 09:25:47 8 writing animal data -- I meant animal studies. 09:25:58 9 The second thing I'm writing here is case reports. 09:26:02 10 And I'll define both of these. 09:26:04 11 Animal studies are studies where a scientist will 09:26:09 12 take mice or rats, give them a drug and see whether there's a 09:26:13 13 certain effect. 09:26:16 14 Epidemiologists look at these animal studies and ask 09:26:19 15 questions. The questions they ask are well, if there was an 09:26:24 16 effect in rats or mice, might there also be an effect in 09:26:28 17 humans? These are the kinds of questions an epidemiologist 09:26:31 18 will get from animal data. 09:26:34 19 They also use case reports to generate their 09:26:37 20 questions. What's a case report? A case report is a 09:26:40 21 publication usually from a physician who is practicing and 09:26:45 22 the physician who has, you know, a practice, patients, will 09:26:48 23 say, "You know, I saw one of my patients who was on a 09:26:52 24 medication. They also happened to develop a condition or an 09:26:56 25 illness." And they will wonder, they will say, "I wonder if 1009 09:27:02 1 the drug caused the illness or the condition or the adverse 09:27:06 2 events?" 09:27:08 3 They raise the question and so they write up this 09:27:17 4 case report and get it published in order to stimulate people 09:27:17 5 like epidemiologists to also ask the question and do the 09:27:20 6 studies. This is how epidemiologists get their questions. 09:27:26 7 How do epidemiologists go from the questions from 09:27:29 8 animal studies, questions from case reports over the river to 09:27:33 9 actually answering the question of whether the drug does or 09:27:37 10 actually doesn't cause the adverse event? 09:27:40 11 Well, there's one preferred, best way to do it and 09:27:45 12 I'll write it down here. What I'm writing is randomized 09:28:02 13 controlled trials. 09:28:03 14 Q. Can you explain both randomized and controlled? 09:28:06 15 A. Sure. I will spend some time explaining both what 09:28:10 16 randomized is, what controlled is and why they're so 09:28:13 17 important. 09:28:14 18 Randomized means the epidemiologist is actually doing 09:28:19 19 an experiment. They take their subjects and they randomly 09:28:24 20 give some subjects drug A. They will then take -- randomly 09:28:33 21 give other subjects things like placebo or sugar pill -- I 09:28:37 22 don't know if you've used the term "placebo." 09:28:40 23 Q. We have. 09:28:42 24 A. Sugar pills. They take another group and give randomly 09:28:45 25 drug B, a second drug. Why do they randomly assign who is 1010 09:28:49 1 getting drug A, placebo, drug B? They do it because they 09:28:54 2 don't want to load the dice against one of the drugs, in 09:28:58 3 favor or against one of the drugs. They want to make sure 09:29:01 4 the same type of people are getting drug A, drug B and sugar 09:29:05 5 pill. They really want to make sure there's no bias here. 09:29:09 6 That's why they use randomization. The scientist is 09:29:13 7 randomly saying who gets drug A, drug B and sugar pill. 09:29:17 8 MR. VICKERY: Excuse me, Doctor. Your Honor, I know 09:29:19 9 that Dr. Wang has not testified before, but I would ask the 09:29:23 10 Court to instruct him he's not here to ask questions like, 09:29:27 11 "Is that clear?" but to merely testify in response to 09:29:30 12 questions by Mr. Preuss. 09:29:32 13 MR. PREUSS: That's fine. 09:29:33 14 THE COURT: That's fine. Go ahead. 09:29:36 15 THE WITNESS: Sorry. 09:29:37 16 A. What does controlled mean? Sorry. 09:29:41 17 THE WITNESS: Is this the type of question you mean 09:29:43 18 don't ask? 09:29:44 19 THE COURT: It is all right. Go ahead. 09:29:46 20 Q. (BY MR. PREUSS) If you could define for us what 09:29:48 21 controlled means, that would be great. 09:29:52 22 A. Controlled means within your study there's a group of 09:29:55 23 patients who are not receiving the drug you're interested in 09:29:58 24 studying. So there's a group that's not getting the drug 09:30:02 25 you're most interested in observing whether it causes or 1011 09:30:04 1 doesn't cause an adverse event. The reason why this control 09:30:09 2 group is so critical is because of background rates of 09:30:13 3 illness, background rates of conditions. 09:30:16 4 Background rates means there could be a -- a 09:30:21 5 condition can occur just by chance. It can occur whether or 09:30:26 6 not you're on a drug. In the case of suicide, there is a 09:30:29 7 background rate. Suicide has been occurring since time 09:30:35 8 immemorial. Suicide has been occurring long before 09:30:38 9 antidepressants were ever produced, marketed. 09:30:42 10 And to give you an idea of how common this background 09:30:45 11 rate is, if you look at all of the deaths in the United 09:30:48 12 States, one out of 75 deaths that occur is by suicide. 09:30:52 13 That's what I mean by background rate. It occurs whether or 09:30:55 14 not you're on antidepressants. It can occur by chance or due 09:30:58 15 to depression or other conditions. 09:31:01 16 The background rate gets even higher amongst patients 09:31:06 17 with depression. If you look at the number of people who die 09:31:10 18 with -- among depressed populations, one out of seven deaths 09:31:15 19 is by suicide, so it is very common. There's a high 09:31:18 20 background rate. 09:31:19 21 In order for epidemiologists to know whether a drug 09:31:22 22 causes a rate of adverse event or a rate of disease higher 09:31:27 23 than the background rate, they need some way to figure out 09:31:31 24 what the background rate is. What is the rate of having 09:31:34 25 suicide without the drug? 1012 09:31:36 1 And that's why a control group is so critical. If 09:31:39 2 you don't have a control group you don't know what the 09:31:42 3 background rate is of developing suicide or any other adverse 09:31:45 4 condition just by chance or due to depression or something 09:31:48 5 else. 09:31:49 6 And by having a control group, you can then say does 09:31:53 7 the drug cause a little bit more suicide or a little bit less 09:31:57 8 suicide or the same amount of suicide as in the control 09:32:00 9 group, as in the baseline, the background rate? 09:32:05 10 This, again, is the preferred means. This is what we 09:32:10 11 call the gold standard, the best way to help the 09:32:13 12 epidemiologist to cross from the questions to actually 09:32:16 13 getting the answer does a drug really or really not cause an 09:32:25 14 adverse event. 09:32:25 15 There's a second type of study. It is not the best, 09:32:27 16 it is secondary. It is -- and I'll tell you what I'm 09:32:31 17 writing -- observational study, and putting another line at 09:32:49 18 the bottom, if adjusted -- if adjusted for bias. 09:32:56 19 Q. For what? 09:32:57 20 A. For bias. And I'll explain all of these terms. 09:33:03 21 Q. Could you start with the observational study and define 09:33:05 22 that for us, please. 09:33:07 23 A. Sure. Observational means it is not a randomized study. 09:33:11 24 It is not an experiment. The investigator is not randomly 09:33:15 25 assigning who gets drug A, drug B or the sugar pill. The 1013 09:33:21 1 investigator is not ensuring that the same type of person is 09:33:25 2 getting drug A, drug B or the placebo. 09:33:28 3 Instead, in an observational study the investigator 09:33:32 4 simply looks at what is happening in a clinic somewhere or 09:33:38 5 maybe in a hospital or amongst doctors out in private 09:33:42 6 practice. And in the real world there can be -- if there's 09:33:47 7 not randomization, if you're just looking at how doctors 09:33:52 8 prescribe in a local clinic or your local hospital, they 09:33:55 9 prefer to give certain drugs to certain people. 09:33:58 10 And in the case of medications like Paxil, Paxil is 09:34:02 11 given to patients who are at higher risk of suicide for the 09:34:06 12 following reason: It is safer in overdosage. You can take a 09:34:10 13 lot of it and not kill yourself if you overdose on it. 09:34:15 14 Other antidepressants, if you take a lot of them, 09:34:18 15 they will stop your heart and you'll die. So out in the real 09:34:21 16 world in practices, in clinics and hospitals, doctors will 09:34:28 17 sort of assess how high the risk is for the patient to 09:34:31 18 overdose, try to commit suicide. 09:34:34 19 If they think the patient is someone who is really 09:34:37 20 going to go out and overdose, which drug do you think they'll 09:34:41 21 select -- sorry, that was a question. They will try to 09:34:44 22 select the medication that the patient will be safe on in 09:34:47 23 overdose. 09:34:48 24 So if you do an observational study, you will have 09:34:51 25 this bias, this prescribing bias where the patients who are 1014 09:34:57 1 getting drugs like Paxil will be the highest risk patients, 09:35:03 2 the ones who are -- the doctor thinks is most likely to 09:35:06 3 get -- to commit suicide. 09:35:09 4 So these aren't randomized studies. They're 09:35:12 5 observational. What the epidemiologist does is they have to 09:35:15 6 adjust for that prescribing bias. If they don't adjust for 09:35:19 7 the prescribing bias, it is not possible to get an answer. 09:35:28 8 So let me just put another thing over here, 09:35:32 9 observational study, and what I'm writing down here is not 09:35:45 10 adjusted for bias. I said not adjusted for bias. And this 09:35:59 11 means if someone does an observational study -- 09:36:02 12 Q. Excuse me, Dr. Wang. 09:36:06 13 MR. VICKERY: Could we please proceed on questions 09:36:08 14 and answers instead of a lecture from the doctor? 09:36:10 15 THE COURT: Well, he is a professor and I see a lot 09:36:13 16 of that. We've had a lot of that throughout this trial, but 09:36:16 17 I would appreciate questions and answers instead of the 09:36:18 18 dialogue. 09:36:20 19 Q. (BY MR. PREUSS) Doctor, you indicated there on the left 09:36:22 20 that on the question side you have observational study, not 09:36:25 21 adjusted for bias. Can you tell us what you mean by that? 09:36:30 22 A. Sure. I've explained what observational studies are. 09:36:35 23 They're studies where the epidemiologist isn't randomly 09:36:38 24 assigning who is getting the drug or the sugar pill. They're 09:36:42 25 watching what happens out in the real world. 1015 09:36:45 1 And it could have this bias prescribing where certain 09:36:50 2 drugs are prescribed to patients by doctors who are at higher 09:36:54 3 risk. If there's no adjustment for the bias prescribing, 09:36:58 4 these observational studies aren't useless. They can help 09:37:02 5 you ask questions. You can wonder whether drugs cause 09:37:04 6 adverse events or you can wonder if they don't, but these 09:37:08 7 types of studies cannot help you like studies that are 09:37:12 8 adjusted for the bias prescribing in terms of answering these 09:37:16 9 questions, you know, crossing the river from question to 09:37:19 10 answer. 09:37:27 11 Q. Can you give us an example where you recently worked on a 09:37:31 12 study where a question was asked and an answer was obtained? 09:37:35 13 A. Sure. I may have to stand back up there because I can't 09:37:38 14 see the board myself. 09:37:40 15 Q. Sure. 09:37:41 16 A. We recently did a study, it is going to be published in 09:37:46 17 this month's -- it is not June -- the June issue of the 09:37:50 18 Journal of Clinical Epidemiology, and it is a study of 09:37:54 19 whether antidepressants cause breast cancer in women. 09:38:00 20 This study -- the question, do antidepressants cause 09:38:03 21 breast cancer in women -- this question came first from 09:38:08 22 animal studies. There was a scientist, Brandis, up in 09:38:13 23 Canada, who found if he gave rats and mice antidepressants 09:38:17 24 like tricyclics, fluoxetine -- not Paxil, the other 09:38:23 25 antidepressants -- he found that the rats and mice developed 1016 09:38:27 1 breast lesions, the female rats and mice. 09:38:31 2 That generated the question does this happen in 09:38:33 3 humans. After this was published, the animal studies, some 09:38:38 4 case reports occurred which doctors out in practice said, 09:38:41 5 "You know, I had a patient on antidepressants and they also 09:38:45 6 got breast cancer. I wonder if antidepressants really cause 09:38:50 7 breast cancer." The case reports also generated the 09:38:53 8 questions. These are where we got our questions from. 09:38:56 9 So we proceeded to do -- we tried to do this: We 09:39:00 10 tried to say is there -- is there a randomized controlled 09:39:05 11 clinical trial that has been done or one that we could do in 09:39:09 12 order to study this question? This would have been our 09:39:11 13 preferred means, the best way to answer the question. 09:39:14 14 We decided it would have taken too long to wait. We 09:39:19 15 would have had to give people -- you know, women 09:39:22 16 antidepressants now, randomized some women not to 09:39:26 17 antidressants and wait because it takes many, many years 09:39:31 18 before the cancers occur. And this is too important a 09:39:34 19 question to wait that long. If antidepressants do cause 09:39:37 20 breast cancer, you need to find out fast, soon. 09:39:40 21 There was no existing randomized controlled clinical 09:39:44 22 trial for us to use. We would have preferred to use data 09:39:47 23 already collected from an existing study but there wasn't any 09:39:51 24 available. So we went to this type of study, this 09:39:53 25 observational study. 1017 09:39:55 1 But what is crucial is we had to adjust -- if I can 09:39:58 2 back up for a second, in an observational study you're not 09:40:01 3 randomly saying who is going to get an antidepressant, who is 09:40:06 4 not. In an observational study you watch how doctors in 09:40:10 5 practice are giving out antidepressants. 09:40:12 6 But women who are at higher risk of developing breast 09:40:16 7 cancer, believe it or not, are also more likely to get 09:40:20 8 antidepressants from their doctors for a whole bunch of 09:40:25 9 reasons. 09:40:25 10 We had to adjust for the prescribing bias in the real 09:40:28 11 world. We had to take that into account. When we did, the 09:40:31 12 results showed there was no association. Antidepressants do 09:40:35 13 not cause breast cancer. That's an example of the type of 09:40:38 14 studies I do. 09:40:40 15 Q. To review a couple of points, can animal studies by 09:40:43 16 themselves get you to an answer? 09:40:44 17 A. No. Anything -- again, I drew that river there and I hope 09:40:50 18 it is useful to show that anything on this side of the river, 09:40:55 19 on your right-hand side of the river can generate questions 09:41:01 20 about whether drugs cause adverse events, but they can't 09:41:05 21 actually show it. They can't answer the question for you. 09:41:09 22 They can't prove whether the drug really does or doesn't 09:41:13 23 cause the adverse event. 09:41:14 24 Q. And what about adverse experience reports that a company 09:41:17 25 gets with respect to experience that a physician or a patient 1018 09:41:23 1 themself may report by way of adverse experience to the 09:41:26 2 company? Is that a question? 09:41:28 3 A. Adverse event reports are like case reports. Doctors in 09:41:34 4 practice notice, again, that maybe one of their patients was 09:41:37 5 on a drug and also seemed to develop a condition. So you can 09:41:42 6 think of them as case reports. 09:41:44 7 But they're not even as good as case reports. Case 09:41:46 8 reports are published in the scientific literature, often 09:41:49 9 peer reviewed. And so they're held to a higher standard. 09:41:53 10 An adverse event reported, you can literally call up 09:41:57 11 the FDA -- and actually I haven't done that. I assume you 09:42:01 12 can call up the FDA or the drug company and simply say, "I 09:42:04 13 saw a patient yesterday who was taking drug X and they 09:42:07 14 developed, you know, condition Y. Do you guys record this, 09:42:12 15 keep track of it?" There's not as much rigor or information 09:42:17 16 as in a published case report where you can actually read it 09:42:21 17 in a scientific journal. 09:42:24 18 Q. Doctor, we're here today to discuss the issue of whether 09:42:27 19 or not Paxil can cause suicide. Are you aware of any studies 09:42:32 20 on the answer side of the type that you put on the answer 09:42:35 21 side that answer the question as to whether Paxil causes 09:42:39 22 suicide? 09:42:40 23 A. Answer to the question or -- could you repeat that? 09:42:43 24 Q. Sure. Are there any questions on the answer side that 09:42:48 25 would confirm that Paxil causes suicide? 1019 09:42:55 1 A. I'm sorry. You said questions and answer. 09:42:55 2 Q. I'm sorry. 09:42:55 3 A. I'm not sure I'm following your question. 09:42:57 4 Q. Are there any studies that you're aware of that would be 09:43:01 5 on the answered side of your diagram that establish that 09:43:07 6 Paxil causes suicide? 09:43:09 7 A. No, there are no studies on your left-hand side that show 09:43:12 8 that Paxil causes suicide. 09:43:17 9 Q. Maybe my right-hand side -- your left-hand side? 09:43:20 10 A. You're right. Why don't we use my left-hand side and my 09:43:25 11 right-hand side. This side, my left-hand side of the river, 09:43:30 12 there are no studies on that side that show that Paxil causes 09:43:34 13 suicide. 09:43:36 14 Q. All right. And let me ask you the converse of that. Are 09:43:38 15 there any studies that would appear on the answer side that 09:43:43 16 establish that Paxil does not cause suicide? 09:43:46 17 A. Yes, there are. There are several, and if I could, I 09:43:52 18 would like to just list them. 09:43:53 19 Q. Would you please list those and then we'll talk about each 09:43:56 20 one of them. 09:44:09 21 A. I will use a different color and I'll list the names of 09:44:13 22 the studies so when we go through them we can all see what 09:44:17 23 I'm referring to. 09:44:18 24 Lopez-Ibor, a single name just hyphenated; 09:44:24 25 Montgomery, Kahn, Verkes, Paxil healthy volunteers, Sheehan 1020 09:44:55 1 and Dunbar. 09:44:57 2 Q. If we could, first, Doctor, could you turn your attention 09:45:00 3 and tell us about the Lopez-Ibor study and how that answers 09:45:05 4 the question that Paxil does not cause suicide? 09:45:10 5 A. Sure. Lopez-Ibor is a metaanalysis of randomized 09:45:17 6 controlled clinical trials. 09:45:19 7 Q. Let me stop you right there. Tell us what a metaanalysis 09:45:22 8 is, if you would, please. 09:45:24 9 A. A metaanalysis is a term that simply means a combination, 09:45:28 10 a collection of studies. We talked about randomized 09:45:34 11 controlled clinical trials as being the preferred means for 09:45:36 12 answering questions about whether drugs cause adverse events. 09:45:41 13 It is sometimes an advantage to, instead of looking 09:45:44 14 at a single randomized controlled clinical trial, to then 09:45:49 15 take the data from multiple ones -- instead of just one which 09:45:53 16 might be too small, you collect several, multiple randomized 09:45:58 17 controlled clinical trials and you use all of them, if 09:46:01 18 possible. That's what a metaanalysis means. It means taking 09:46:04 19 a collection of randomized controlled clinical trials. 09:46:07 20 Lopez-Ibor did that. They used all the randomized 09:46:11 21 controlled clinical trials in the worldwide database of Paxil 09:46:15 22 trials that were conducted prior to the approval of Paxil. 09:46:20 23 And this involved thousands of patients. The reason why they 09:46:24 24 did the metaanalysis was to get lots of experience from a lot 09:46:28 25 of different patients. 1021 09:46:30 1 They were interested in a few outcomes. I will 09:46:33 2 describe one. One outcome was reductions in suicidality. 09:46:41 3 They were wondering if during a trial suicidality went down. 09:46:46 4 They compared people who were given Paxil to people given 09:46:51 5 placebo, the sugar pill. And Paxil was significantly 09:46:55 6 consistently better than the sugar pill at reducing 09:46:59 7 suicidality. 09:47:01 8 Q. Let me ask you a couple questions there if I might, 09:47:04 9 Doctor. You used the term "suicidality." What does that 09:47:09 10 mean? 09:47:10 11 A. By that I mean they had a rating scale in there, a way to 09:47:12 12 measure how suicidal someone was and the person was reporting 09:47:16 13 about their suicidal ideas. 09:47:18 14 Q. So suicidality refers to suicidal thoughts or ideas? 09:47:23 15 A. In this study and in this specific analysis I'm talking 09:47:27 16 about they were measuring suicidal thoughts. 09:47:31 17 Q. And then you used the term "statistically significant." 09:47:35 18 What does that mean in epidemiologic terms, sir? 09:47:39 19 A. Let me give you a mix of epidemiologic and try to also 09:47:42 20 give you terms that are not epidemiologic because it is a 09:47:47 21 tough concept. 09:47:48 22 In any study you will -- that compares, say, one drug 09:47:53 23 to another drug, you will get a difference. Maybe drug A -- 09:48:00 24 people given drug A have a higher rating than the patients 09:48:04 25 given drug B. 1022 09:48:06 1 Or maybe the patients given drug A make more 09:48:11 2 behaviors of some sort than the subjects given drug B. You 09:48:17 3 will see a difference on the rating score or number of 09:48:20 4 behaviors. 09:48:20 5 The epidemiologists ask -- they have to ask this 09:48:24 6 question, is this a real difference? Is this real or is it 09:48:27 7 just due to chance or error? That's what statistical 09:48:36 8 significance helps you determine. When an epidemiologist 09:48:39 9 says they've calculated that this difference is statistically 09:48:42 10 significant, what they're saying is drug A really is higher, 09:48:49 11 really is higher than drug B on the rating scale or it really 09:48:50 12 is higher on the number of behaviors or whatever they're 09:48:53 13 measuring. 09:48:54 14 Let's say the epidemiologist does the calculation and 09:48:58 15 says this is not a statistically significant difference, it 09:49:01 16 is not statistically significant. What they're telling you 09:49:06 17 there is no difference. What they're observing could be due 09:49:09 18 to chance or error. That's a definition. 09:49:12 19 Q. All right. And now you indicated that they were looking 09:49:14 20 at reduced suicidal thoughts as one of the examination points 09:49:20 21 on the Lopez-Ibor study? 09:49:23 22 A. That was one of the analyses they did. What they found, 09:49:27 23 to repeat it, they found that Paxil was statistically 09:49:30 24 significantly better at reducing the suicidal thoughts than 09:49:34 25 people given the sugar pill. 1023 09:49:36 1 Q. Were there other areas that were looked at in the study? 09:49:40 2 A. Yeah, they did another very interesting and important 09:49:43 3 analysis. They looked not only at the entire -- all the 09:49:47 4 people involved in all of the studies, but they also looked 09:49:50 5 at specifically a subsection of -- a slice of the patients 09:49:54 6 who participated in all of these trials, just a slice of 09:49:59 7 them. The slice they were interested in looking at were 09:50:02 8 patients who at the beginning of the trial had no suicidality 09:50:06 9 at all, no suicidal thoughts. 09:50:09 10 And what they were interested in was studying whether 09:50:12 11 among people free of suicidality at the beginning of the 09:50:18 12 trial -- they don't have any -- does new suicidality emerge, 09:50:23 13 does it come out during the trial. 09:50:25 14 To do that they study it again. To reiterate, people 09:50:30 15 free of the suicidality, this subsection, this slice, what 09:50:35 16 they found was Paxil was statistically significantly better 09:50:38 17 at preventing the emergence of new suicidality, suicidal 09:50:46 18 thoughts, in patients who were free of it at the beginning of 09:50:49 19 the trial than people receiving the sugar pill. 09:50:52 20 Q. Does that cover the Lopez-Ibor study? 09:50:55 21 A. Yes. 09:50:56 22 Q. The next one is the Montgomery study. Can you tell us 09:50:58 23 what the examination points were on that study and what the 09:51:03 24 answers were to that? 09:51:05 25 A. The Montgomery study was similar. They used the clinical 1024 09:51:09 1 worldwide database of randomized controlled trials. They had 09:51:14 2 similar interests so they looked at how well suicidal 09:51:17 3 thoughts were reduced in the entire study population. 09:51:21 4 And they, again, found that Paxil was statistically 09:51:27 5 significantly better than placebo at reducing suicidal 09:51:31 6 thoughts among everybody. And they found using three 09:51:34 7 different measures -- in this study they had three different 09:51:38 8 ways of measuring suicidal thoughts. 09:51:40 9 They did a similar study to the Lopez-Ibor where they 09:51:44 10 also looked at just the slice that was free of suicidal 09:51:48 11 thoughts at the beginning of the trial. None of these people 09:51:52 12 were suicidal. They did not have suicidal thoughts and they 09:51:55 13 just watched to see how much suicidal thought came out during 09:51:59 14 the trial. 09:51:59 15 And they again found that the -- the people given 09:52:04 16 Paxil had statistically significantly less new suicidal 09:52:09 17 thoughts emerge during the trial compared to the people given 09:52:12 18 sugar pill. 09:52:13 19 They also had an interesting result that on one of 09:52:16 20 their scales, one of their measures of suicidal thoughts, 09:52:20 21 they actually found that Paxil did better than another 09:52:24 22 antidepressant, a tricyclic antidepressant. 09:52:30 23 Q. Does that cover then the Montgomery study? 09:52:33 24 A. Yes. 09:52:33 25 Q. And could you move to the Kahn study, please, sir? 1025 09:52:37 1 A. The Kahn study is also a randomized controlled clinical 09:52:43 2 trial metaanalysis. It is up in my left-hand top corner. It 09:52:47 3 is the preferred type of study. It is a collection of these 09:52:52 4 randomized controlled clinical trials. 09:52:56 5 And this one was using all of the randomized 09:52:59 6 controlled clinical trials that the FDA has on file for new 09:53:02 7 antidepressants, again involving thousands of patients. 09:53:06 8 The results of that study are interesting. They 09:53:09 9 had -- they were looking at a slightly different outcome. 09:53:13 10 They looked at actually suicide, actually killing yourself, 09:53:19 11 and they also looked at making suicide attempts, not just 09:53:23 12 having suicide thoughts but actually acting, making suicide 09:53:26 13 attempts, actually killing yourself. 09:53:29 14 What they found was numerically, just if you look at 09:53:33 15 the numbers, Paxil users, people randomized to Paxil made 09:53:38 16 fewer attempts than people given placebo or other 09:53:46 17 antidepressants. 09:53:46 18 They also -- numerically just in terms of numbers, 09:53:50 19 fewer of them actually committed suicide. 09:53:54 20 And let me just say, these results did not achieve 09:53:57 21 statistical significance. So all that means is there's -- 09:54:01 22 you can't say with any certainty that the Paxil -- that Paxil 09:54:05 23 was better at preventing suicides or suicide attempts, but it 09:54:09 24 certainly was no worse. 09:54:13 25 Q. Then could you move to the Verkes study, please? 1026 09:54:16 1 A. Sure. The Verkes study is a single randomized controlled 09:54:21 2 clinical trial, and it is a study in a high-risk population. 09:54:27 3 By high risk what I mean is these patients were all patients 09:54:31 4 who had made a prior suicide attempt, and patients who make 09:54:36 5 suicide attempts are very much at risk for making a 09:54:40 6 subsequent one. They're one of the populations that are 09:54:43 7 maybe at highest risk of making suicide attempts. 09:54:46 8 And in this trial, it was a year-long trial, they 09:54:51 9 randomly assigned people to either Paxil or placebo, the 09:54:55 10 sugar pill, and they found -- they were interested in three 09:54:59 11 different types of outcomes. One of the outcomes they were 09:55:03 12 interested in was the proportion of patients that made a 09:55:07 13 subsequent attempt. Everyone has made an attempt in the past 09:55:10 14 recently. What they were interested in was how many people 09:55:13 15 went out and made another attempt during the year-long trial. 09:55:17 16 What they found was Paxil users were -- they made an 09:55:19 17 adjustment, they had to adjust for one factor called the -- 09:55:24 18 they had to adjust for the previous number of suicide 09:55:28 19 attempts. When they did that, they found that Paxil users 09:55:32 20 were statistically significantly less likely to make a 09:55:35 21 subsequent suicide attempt compared to the people given sugar 09:55:39 22 pill. That's one outcome. 09:55:41 23 The second outcome they were looking at was speed. 09:55:44 24 They wanted you to know were people faster or slower at 09:55:47 25 making their suicide attempts on Paxil versus sugar pill. So 1027 09:55:53 1 it is speed of making the suicide attempt. 09:55:56 2 What they found when they did this analysis, again, 09:55:59 3 Paxil users were slower to make a subsequent suicide attempt 09:56:03 4 than people getting sugar pill. 09:56:06 5 A third interesting study that they did, analysis in 09:56:10 6 this randomized controlled clinical trial was they measured 09:56:14 7 anger, anger scores. They put in a measure of how much anger 09:56:20 8 someone had, a scale called the anger expression inventory, 09:56:24 9 and they observed that people given Paxil after two weeks 09:56:30 10 actually had lower anger scores. So very quickly patients 09:56:34 11 had lower anger scores if they were given Paxil than the 09:56:38 12 patients given placebo, sugar pill. 09:56:44 13 Q. And that covers the Verkes study? 09:56:46 14 A. That covers it. 09:56:47 15 Q. And then you have the Paxil healthy volunteer study. What 09:56:50 16 did your analysis of that study indicate, sir? 09:56:54 17 A. The Paxil healthy volunteer study refers to a group of 09:57:00 18 studies called healthy volunteer studies. When a 09:57:05 19 pharmaceutical company is applying for a new drug approval 09:57:10 20 from the FDA -- FDA is the governmental drug regulatory body. 09:57:16 21 When they're applying for a new drug approval, they 09:57:21 22 need to submit certain types of studies for the FDA to 09:57:24 23 review. One of them are called early phase clinical trials. 09:57:29 24 And in these early phase clinical trials the drug is randomly 09:57:34 25 given -- again these are randomized controlled clinical 1028 09:57:38 1 trials -- the drug is given to healthy volunteers. 09:57:42 2 Healthy volunteers are also -- some of them are 09:57:44 3 randomly given the sugar pill, placebo. What they're really 09:57:48 4 interested in -- they're not interested in these studies in 09:57:51 5 how well the drug works in terms of treating depression or 09:57:54 6 anything like that, because these are all healthy people, 09:57:57 7 healthy volunteers. What they're interested in is how does 09:58:02 8 the drug -- excuse me -- does the drug cause adverse events. 09:58:07 9 And this is a useful database for the following 09:58:09 10 reason: In all of the clinical trials involving over a 09:58:13 11 thousand patients that were taking Paxil, they found not a 09:58:20 12 single case of patients developing suicidal thoughts. They 09:58:25 13 found not a single case among patients given Paxil, healthy 09:58:29 14 volunteers -- they found not a single case of someone making 09:58:32 15 a suicide attempt. Not a single case of someone given Paxil 09:58:36 16 who actually completed suicide. Not a single case of Paxil 09:58:40 17 patients having homicidal thoughts. Not a single Paxil 09:58:50 18 patient made homicide gestures or actually tried to kill 09:58:52 19 someone and no one treated it. 09:58:54 20 Q. Doctor, before we move on to the Sheehan and Dunbar 09:58:58 21 studies, with respect to the studies we've just reviewed, is 09:59:02 22 there anything in those studies that would suggest that Paxil 09:59:05 23 causes suicidality? 09:59:06 24 A. No. As I review it there's nothing to suggest that Paxil 09:59:10 25 causes suicide. In fact, what I've been reviewing for you 1029 09:59:14 1 suggests that Paxil is a good treatment for preventing newly 09:59:19 2 emergent suicide and also an effective treatment for reducing 09:59:23 3 suicidality. 09:59:24 4 Q. Doctor, we've heard some testimony that suggests that 09:59:28 5 Paxil may cause an increase in anxiety. Are there any 09:59:32 6 studies that looked at that issue? 09:59:37 7 A. Those are the two studies I put at the bottom of the list. 09:59:40 8 Again, they're randomized controlled clinical trials, the 09:59:44 9 preferred best way to try to answer the question, get over 09:59:46 10 the river to answering whether drugs cause adverse events. 09:59:51 11 Sheehan is, again, a metaanalysis of randomized 09:59:56 12 controlled clinical trials, and they, again, were examining 09:59:59 13 the worldwide clinical trial database of Paxil studies, again 10:00:04 14 involved with thousands of patients. 10:00:05 15 And they were interested in several different 10:00:09 16 outcomes. One outcome was somatic anxiety. Another outcome 10:00:15 17 was psychic anxiety. A third outcome was agitation, and I 10:00:21 18 will explain what each of those means. 10:00:23 19 Q. Would you please do somatic anxiety and then psychotic? 10:00:28 20 A. Okay. Somatic anxiety means it is a type of anxiety 10:00:36 21 symptom that shows itself or manifests itself through some 10:00:40 22 effect on your body, like if you -- let's say you have this 10:00:43 23 anxiety symptom. You might get sweaty palms or you might 10:00:49 24 feel your stomach be upset, or you might get short of breath 10:00:53 25 or have rapid heartbeat. 1030 10:00:56 1 These are all manifestations of being anxious, but 10:00:59 2 they manifest themselves through -- think of it as your body. 10:01:05 3 Psychic anxiety is a subjective sense of feeling 10:01:10 4 anxious, you feel anxious or scared. That's what psychic 10:01:14 5 anxiety means. 10:01:15 6 Agitation, have you covered agitation? 10:01:18 7 Q. Go ahead and define it as you understand it. 10:01:20 8 A. It is basically self-explanatory. You're agitated. It is 10:01:24 9 a little more straightforward. These are the three outcomes 10:01:27 10 you're interested in. 10:01:31 11 Among patients randomly given Paxil, they found 10:01:36 12 compared to patients given placebo that Paxil users had 10:01:41 13 statistically significant less somatic anxiety, statistically 10:01:46 14 significant less psychic anxiety, and statistically 10:01:51 15 significant less agitation when you compared Paxil users to 10:01:57 16 patients given the placebo pill; so actual reductions in the 10:02:01 17 anxiety and agitation ratings. 10:02:12 18 They also did analysis where they looked at whether 10:02:15 19 Paxil was better than other antidepressants, other 10:02:18 20 tricyclics. They found on one of their measures, agitation 10:02:21 21 at four weeks, at least, there was a significant -- Paxil was 10:02:25 22 significantly better than the tricyclic, the other type of 10:02:29 23 antidepressant. 10:02:30 24 Q. That covers Sheehan, then? 10:02:33 25 A. I don't want to get into too much, but they also had one 1031 10:02:36 1 of these newly emergent analysis where they looked not at the 10:02:41 2 entire population but just the slice of people free of 10:02:44 3 agitation at the beginning of the trial, because here what 10:02:47 4 they wanted to see was did new agitation emerge among people 10:02:53 5 who never had it at the start of the trial. 10:02:56 6 When they compared people randomized to Paxil to 10:03:00 7 people randomized to placebo, they found less newly emergent 10:03:05 8 agitation in this small slice, subsection of people who 10:03:09 9 didn't have agitation at the beginning of the trial. 10:03:13 10 Q. Does that complete Sheehan? 10:03:15 11 A. Yes. 10:03:16 12 Q. Tell us about Dunbar. 10:03:17 13 A. It is a similar study to Sheehan using similar data. It 10:03:20 14 is a metaanalysis of randomized controlled clinical trials, 10:03:24 15 and Dunbar looked at adverse event reporting during the 10:03:31 16 clinical trial. 10:03:31 17 And during the clinical trial when you come in, you 10:03:35 18 know, for your visit, you know, weekly or biweekly or 10:03:39 19 whatever during the trial, the observer will rate whether you 10:03:45 20 report that you've had an adverse event. And the types of 10:03:50 21 adverse events they were reporting were the subjects saying 10:03:53 22 they felt anxiety, that they felt agitation, that they felt 10:04:01 23 nervous. 10:04:01 24 And there was also something called central nervous 10:04:04 25 system stimulation, but it is another type of adverse event, 1032 10:04:08 1 and it basically -- all of these are used to mark whether 10:04:13 2 patients are developing these anxiety-type symptoms. 10:04:19 3 And what they found is when they compared Paxil users 10:04:24 4 to people given sugar pill to people given this other 10:04:30 5 antidepressant tricyclic, there was no statistically 10:04:35 6 significant difference amongst any of the treatments. There 10:04:38 7 was no difference between getting Paxil and getting a sugar 10:04:41 8 pill in terms of reporting any of these adverse events during 10:04:45 9 the trial. 10:04:46 10 Q. All right. Do either Sheehan or Dunbar, then, sir, 10:04:51 11 establish that Paxil causes people to be more agitated? 10:04:55 12 A. No, it doesn't establish that. In fact, as I just 10:05:01 13 described, it actually appears from these studies, these 10:05:04 14 studies support that Paxil is a good treatment for anxiety 10:05:10 15 symptoms, a good treatment for reducing anxiety symptoms and 10:05:14 16 agitation, and it also may be effective treatment for 10:05:17 17 preventing newly emergent anxiety symptoms -- agitation 10:05:22 18 symptoms. 10:05:23 19 Q. There's one study we haven't discussed and that's the 10:05:28 20 Donovan study. Are you familiar with that? 10:05:31 21 A. Yes, I am. 10:05:32 22 Q. Where would that fit on your chart, sir? 10:05:34 23 A. Let me also write it in. I have written Donovan in under 10:05:47 24 observational studies, not adjusted for bias down in my 10:05:51 25 right-hand left-hand corner. 1033 10:05:52 1 Q. Can you tell us what kind of a study it was and why you 10:05:55 2 have put it on the question side? 10:05:58 3 A. Sure. This is -- an example might be good here. When I 10:06:03 4 was flying from Denver to Cheyenne, I -- we hit some 10:06:07 5 turbulence and the airplane -- it was quite actually a 10:06:13 6 troubling ride. 10:06:14 7 And during that time I was thinking there are two 10:06:17 8 things this plane better have to stay up. One is this plane 10:06:20 9 better be well equipped; and two, there better be a pilot who 10:06:26 10 knows how to handle the turbulence, who is aware of the 10:06:30 11 potential dangers and pitfalls and has experience dealing 10:06:33 12 with them. 10:06:34 13 Epidemiologic studies are exactly the same. In order 10:06:37 14 for them to fly, you need two things. You need the study to 10:06:42 15 be properly equipped. All the equipment has to be there. 10:06:45 16 Second thing you need is you need an investigator, or 10:06:49 17 a pilot, if you will, who is skilled and experienced, knows 10:06:54 18 what the dangers are, knows what the pitfalls are. 10:06:57 19 I raise that example because Donovan, unfortunately, 10:07:03 20 is not properly equipped. That's why I put it under that not 10:07:06 21 adjusted for bias. 10:07:08 22 But fortunately, Donovan is an experienced pilot, 10:07:13 23 experienced investigator who knows the pitfalls, the danger 10:07:18 24 in the study and alerts the reader to them. 10:07:22 25 If -- actually, if you bear with my example, Donovan 1034 10:07:26 1 basically kept the plane on the ground and tells you it is 10:07:30 2 not going to fly. 10:07:34 3 Let me tell you why I'm saying all of this. I 10:07:37 4 explained what an observational study is. There's no 10:07:40 5 randomized study. There's no making sure the people 10:07:43 6 randomized to the drugs are the same, the randomized 10:07:48 7 exposures. It is an observation of how doctors prescribe in 10:07:51 8 a single clinic in Chester, England. And remember, drugs 10:07:57 9 like Paxil because they're safer in overdosage, Doctors like 10:08:01 10 to give them to the patients who they think are most at risk 10:08:07 11 of overdosing and committing suicide. 10:08:10 12 They found proof of this prescribing bias. There's 10:08:13 13 actually statistical evidence saying, "We actually observed 10:08:16 14 this bias prescribing." What they observed was in their data 10:08:20 15 Paxil and other SSRIs were being given to patients that were 10:08:26 16 sicker, having difficulty in treatment, switching around a 10:08:30 17 lot on antidepressants. 10:08:32 18 They also found that these SSRIs, Paxil, these types 10:08:36 19 of drugs were being given to patients who had prior histories 10:08:40 20 of suicide attempts. Again, these are high-risk people. And 10:08:45 21 these were given more than other antidepressants. So drugs 10:08:48 22 like Paxil were preferentially biasedly given to patients at 10:08:54 23 higher risk of suicide. 10:08:55 24 They weren't able to adjust for this bias. They 10:08:58 25 couldn't fix it. That's what I mean by underequipped. But 1035 10:09:05 1 fortunately when I said Donovan was a skilled, experienced 10:09:14 2 investigator who knew that this problem was occurring, they 10:09:14 3 warned the reader explicitly that this problem is there, and 10:09:17 4 they also warn the reader, keep this plane on the ground. 10:09:20 5 This study cannot be used to help you cross the river over 10:09:24 6 into getting an answer about whether antidepressants cause 10:09:29 7 suicide or not. They explicitly tell you you can't use this 10:09:33 8 study to establish that. 10:09:34 9 Q. Doctor, is this the quote that you had in mind on that? 10:09:38 10 A. Yeah. Don't take my word for it. Let me read to you 10:09:41 11 their warning. This is specifically what they say. And I'm 10:09:45 12 referring to page 556 of their article. 10:09:50 13 Here's their warning about the bias prescribing: 10:09:53 14 "Prescribers are heeding advice to prescribe 10:09:56 15 safer-in-overdose antidepressants to patients who are 10:10:00 16 perceived to be at greater risk of deliberate self-harm. 10:10:04 17 This effectively loads the dice against antidepressants such 10:10:09 18 as the SSRIs so that this manifests as an apparent excess of 10:10:13 19 self-harm behavior in patients who have been prescribed these 10:10:16 20 antidepressants." 10:10:17 21 It is a pretty clear explanation. He actually does a 10:10:21 22 much better job of explaining the prescribing bias to people 10:10:24 23 at higher risk of overdosage than I think I did. But this is 10:10:28 24 a clear explanation of the problem, the pitfall of the study. 10:10:33 25 But even more importantly, Donovan tells you this 1036 10:10:38 1 study should not be used to establish whether antidepressants 10:10:42 2 cause suicide. It is biased. There was no adjustment, no 10:10:49 3 fixing of the prescribing bias. 10:10:52 4 I'm referring to a quote on page 555. Here is where 10:10:55 5 they explicitly tell you you can't use this to cross the 10:10:59 6 river. "It is difficult to attribute the cause of deliberate 10:11:04 7 self-harm behavior to antidepressant treatment when such 10:11:08 8 behavior also occurred spontaneously during the course of 10:11:11 9 progressive illnesses. Establishment of cause and effect for 10:11:13 10 the different apparent risk of deliberate self-harm 10:11:15 11 associated with different antidepressants seen in the study 10:11:18 12 is, therefore, almost impossible." 10:11:21 13 What Donovan is saying is because this study wasn't 10:11:24 14 equipped -- he smartly is saying keep this plane on the 10:11:27 15 ground, it can be used to generate questions about 10:11:31 16 antidepressants and suicide, but it can't be used to 10:11:34 17 establish whether antidepressants cause suicide. That's why 10:11:38 18 I didn't put it down in that right-hand bottom corner. 10:11:46 19 Q. Your right-hand bottom corner? 10:11:48 20 A. Right, my right-hand bottom corner, down there. 10:11:51 21 Q. Does Donovan then lend any support to the claim that Paxil 10:11:55 22 causes suicide, sir? 10:11:56 23 A. No, it does not, because, again, as the authors instruct 10:12:02 24 you, this study cannot be used to establish that 10:12:06 25 antidepressants cause suicide. They explicitly tell you it 1037 10:12:10 1 can't be done. 10:12:15 2 Q. Now, Doctor, we've been talking about Paxil studies so 10:12:21 3 far, correct? 10:12:23 4 A. That's correct. 10:12:24 5 Q. Now, if you're going to study Paxil and it is whether or 10:12:28 6 not it can cause suicide, can you just borrow studies that 10:12:31 7 deal with Prozac or other SSRIs? 10:12:34 8 A. No, you can't. That's actually very -- it would be a big 10:12:38 9 problem to do that. Drugs in the same class might share some 10:12:42 10 of the same beneficial effects. Drugs in the same 10:12:46 11 antidepressant class might share the beneficial effect of 10:12:50 12 treating depression, depression symptoms, but they don't 10:12:52 13 share the same side effects. 10:12:55 14 And if you assume that, it can get you into a lot of 10:12:58 15 trouble. And I will give you an example of that. There's a 10:13:02 16 medication used to treat psychotic symptoms. It is an 10:13:06 17 antipsychotic. 10:13:08 18 Psychotic symptoms are symptoms like having 10:13:12 19 hallucinations, being paranoid, and they come up when someone 10:13:16 20 has a disease, usually like schizophrenia. There's a 10:13:21 21 particular antidepressant -- antipsychotic medication called 10:13:26 22 clozapine and it is a special drug, really a very good one 10:13:30 23 for treating these symptoms, but it has a rare side effect 10:13:33 24 that's devastating. It causes you to lose your white blood 10:13:38 25 cells which help you fight infection. So in a rare person 1038 10:13:43 1 given clozapine, this antipsychotic medication, they can 10:13:49 2 develop overwhelming infection. 10:13:51 3 Other atypical antipsychotic medications, other drugs 10:13:59 4 in this class, don't share that side effect. What is the 10:14:03 5 danger in assuming that all drugs in the same class share the 10:14:06 6 same side effect? The dangers are as follows: If you assume 10:14:11 7 that clozapine had the same side effects as the other 10:14:15 8 antipsychotic medications in the same class, the danger would 10:14:21 9 be you would miss all of these cases of lowered white blood 10:14:28 10 cell counts and these horrible infections that would occur 10:14:28 11 because you haven't realized that clozapine may have a 10:14:30 12 special different side effect and you've just assumed it has 10:14:33 13 the same side effects as all the others. 10:14:36 14 At the same time, there's also a danger in assuming 10:14:40 15 the other antipsychotic medications act like clozapine. That 10:14:45 16 danger is probably equally as problematic because what would 10:14:48 17 happen if you assumed these other drugs which don't cause 10:14:51 18 this lowering of your white blood cell count? What if you 10:14:55 19 assumed they did? You might needlessly worry the patients 10:15:00 20 taking these antipsychotic medications. 10:15:03 21 As I told you earlier, particularly antipsychotic 10:15:06 22 medications are extremely underused. The people that would 10:15:10 23 benefit from them and need them don't take them. 10:15:13 24 If you say there's a side effect to them that doesn't 10:15:15 25 really exist, you're going to get even fewer people to take 1039 10:15:19 1 the antipsychotic medication who would benefit from it and 10:15:24 2 really need it. 10:15:25 3 Q. We've heard testimony regarding case reports involving 10:15:28 4 Prozac by Teicher and Rothschild. Are you familiar with 10:15:32 5 those? 10:15:32 6 A. I'm familiar with them. 10:15:33 7 Q. Do they shed any light on whether Paxil might cause 10:15:37 8 suicide, sir? 10:15:39 9 A. No, they don't. And for actually at least two reasons. 10:15:43 10 One is they don't involve Paxil. They involve Prozac. We're 10:15:49 11 talking about a different drug, and as I just explained to 10:15:52 12 you, there are real dangers in assuming that the side effects 10:15:55 13 of one drug are the same as the side effects of another. 10:15:58 14 The second is they can't even establish that Prozac 10:16:02 15 causes suicide because their case reports -- you know, in my 10:16:06 16 diagram case reports can raise questions for you. They can 10:16:11 17 cause epidemiologists to raise questions and then go do 10:16:14 18 studies. Case reports by themselves don't allow you to cross 10:16:19 19 the river and actually answer whether in this case, you know, 10:16:26 20 they're about Prozac, whether Prozac actually causes 10:16:29 21 suicidality. 10:16:31 22 Q. Dr. Wang, to a reasonable degree of medical and scientific 10:16:34 23 certainty does Paxil cause suicides? 10:16:38 24 A. Please repeat that question. 10:16:39 25 Q. To a reasonable degree of medical and scientific certainty 1040 10:16:43 1 does Paxil cause suicide? 10:16:46 2 A. No. 10:16:46 3 Q. To a reasonable degree of medical and scientific certainty 10:16:49 4 does Paxil cause suicide in a subpopulation of people? 10:16:56 5 A. No, it does not. 10:17:00 6 Q. And to a reasonable degree of medical and scientific 10:17:02 7 certainty is there reasonable evidence of an association 10:17:06 8 between Paxil and suicide? 10:17:07 9 A. No, there is not. 10:17:09 10 Q. Do you claim that Paxil causes suicide, Doctor? Would 10:17:12 11 that be what you termed a wrong claim? 10:17:14 12 A. That would -- it is potentially a wrong claim of the type 10:17:19 13 that I sort of talked about earlier, and it is potentially -- 10:17:24 14 it could potentially be a problem. Again, if there's -- 10:17:28 15 there's already underuse of these psychiatric medications by 10:17:32 16 patients that really need them and would benefit from them. 10:17:35 17 If there are wrong claims made about these medications, there 10:17:39 18 will be even more underuse of these medications by people who 10:17:42 19 would benefit. People who do ultimately take the medications 10:17:47 20 will wait even longer. 10:17:49 21 Remember, I told you our data shows about 11 years 10:17:53 22 elapsing before people experiencing symptoms of depression or 10:17:58 23 other psychiatric illnesses and then actually treat 10:18:01 24 illnesses. Over a decade. That's a long time. You may even 10:18:06 25 see a worsening in it in people waiting longer because wrong 1041 10:18:11 1 claims are made. 10:18:12 2 Lastly, among people who do get treated, they may 10:18:16 3 needlessly worry. If there are a lot of claims made about, 10:18:19 4 you know, whether the antidepressant they're on causes things 10:18:23 5 like suicide, they will worry, potentially needlessly and 10:18:28 6 maybe come off the medication sooner than they really should. 10:18:32 7 MR. PREUSS: Thank you. No further questions at this 10:18:34 8 time. 10:18:34 9 THE COURT: Mr. Vickery. 10 CROSS-EXAMINATION 10:18:50 11 Q. (BY MR. VICKERY) Good morning, Dr. Wang. 10:18:52 12 A. Good morning, Mr. Vickery. 10:18:54 13 Q. You have brought a file with you to the stand. What is 10:18:56 14 that? 10:18:57 15 A. They're the studies which I referred to and also my 10:19:01 16 Rule 26 and also a copy of the diagram that I put up there. 10:19:08 17 Q. Did you select the articles to read yourself or were they 10:19:11 18 selected for you? 10:19:14 19 A. There was a mixture. You mean by selected, selected by 10:19:17 20 whom? 10:19:18 21 Q. By one of these lawyers. 10:19:21 22 A. They provided me with some articles and I also looked up 10:19:24 23 some articles myself, and certain articles reference other 10:19:28 24 studies and I looked them up myself. 10:19:30 25 Q. I note, for example, one of the things that's not listed 1042 10:19:33 1 on your report is a document that's the Consensus Statement 10:19:44 2 of the American College of Neuropsychopharmacologists in 10:19:44 3 1992. Are you familiar with that document? 10:19:46 4 A. The one written by John Mann? 10:19:52 5 Q. Yes. 10:19:52 6 A. Yes, I've read it. 10:19:54 7 Q. In connection with this case? 10:19:56 8 A. In connection with this case. 10:19:57 9 Q. Is it in your folder? 10:19:59 10 A. It is not in my folder. 10:20:01 11 Q. Did you read it at your own instance or because someone 10:20:05 12 suggested that you should? 10:20:06 13 A. It came up because it is part of the literature on this 10:20:08 14 case. I don't know if I looked it up or if someone else 10:20:11 15 looked it up. 10:20:12 16 Q. May I see your file there? 10:20:13 17 A. Sure. Actually, it may be in here. I need to look. 10:20:31 18 Q. I will have a look at the break and return it to you 10:20:35 19 afterwards. 10:20:36 20 Dr. Wang, the research you described on breast 10:20:38 21 cancer, who funded that? 10:20:40 22 A. That was funded -- the research was funded by the National 10:20:45 23 Institute of Mental Health. 10:20:45 24 Q. And what was the study design? 10:20:47 25 A. The study design, as I described, it is the type of study 1043 10:20:51 1 that fits in the -- my left-hand bottom corner. It is an 10:20:58 2 observational study. So there wasn't random assignment. But 10:21:02 3 it was adjusted for any prescribing bias, you know, whereby 10:21:08 4 antidepressants would be given to women who are at higher 10:21:12 5 risk of breast cancer. 10:21:13 6 Q. Was it a cohort study? 10:21:15 7 A. It was a cohort study. 10:21:17 8 Q. Would you tell the jury what a cohort study is. 10:21:21 9 A. A cohort study is a type of observational study where, 10:21:25 10 again, you look at how antidepressants are being used in the 10:21:28 11 real world. You -- no one is randomly assigning patients, it 10:21:32 12 is not an experiment, we just observed how antidepressants 10:21:36 13 were being used, actually in the state of New Jersey. 10:21:39 14 Q. Okay. Was it a prospective study or retrospective? 10:21:47 15 A. It was a retrospective study. 10:21:49 16 Q. Would you tell the jury the difference between prospective 10:21:52 17 and retrospective studies? 10:21:54 18 A. A retrospective -- you're talking about epidemiologic 19 studies? 10:21:59 20 Q. Yes, sir. 10:22:01 21 A. An epidemiologic study that is retrospective is a study 10:22:06 22 where the data that we used for the study was collected after 10:22:11 23 the exposures were given. In this case the exposures are 10:22:16 24 just the prescriptions, you know, that doctors are giving to 10:22:20 25 patients in the state of New Jersey. And it also -- we 1044 10:22:25 1 collected the data and did the analysis after the breast 10:22:29 2 cancer cases occurred. 10:22:31 3 So we collected the data on the exposure and also the 10:22:35 4 disease, in this case breast cancer -- we collected the data 10:22:39 5 and did the analyses after both of those things happened. 10:22:43 6 That's retrospective. 10:22:45 7 Q. Would you mind stepping down from the board and flipping 10:22:47 8 the chart, and as you've done with questions and answers, put 10:22:50 9 prospective on one side and retrospective on the other? 10:22:54 10 Would you do that for us? 10:22:56 11 MR. PREUSS: Your Honor, before he flips it, I would 10:22:59 12 like to move the exhibit into evidence. 10:23:01 13 THE COURT: Is this JJ? 10:23:02 14 MR. PREUSS: Yes, sir. 10:23:03 15 THE COURT: Any objection? 10:23:04 16 MR. VICKERY: No objection. 10:23:05 17 THE COURT: Defendant's Exhibit JJ may be received in 10:23:07 18 evidence. 10:23:09 19 (Defendant Exhibit JJ received in evidence.) 10:23:14 20 THE WITNESS: What does that mean? 10:23:19 21 MR. VICKERY: It means the jury gets it at the end of 10:23:21 22 the case. 10:23:22 23 Q. (BY MR. VICKERY) Would you mind flipping it over and 10:23:23 24 write for us prospective and retrospective. 10:23:40 25 Would you be so kind as to draw a body of water 1045 10:23:43 1 between those two, a stream or river or something. 10:23:48 2 Now, in the overall pecking order of scientific 10:23:52 3 validity from an epidemiologist's standpoint are prospective 10:23:58 4 studies generally regarded as more scientifically rigorous 10:24:02 5 than retrospective studies? 10:24:06 6 A. Let's get some terms clear here, if you don't mind. 10:24:13 7 Q. Let me rephrase it. 10:24:15 8 A. Yeah, because I'm not sure -- 10:24:18 9 Q. I don't want to use buzzwords, just plain English. 10:24:20 10 Are prospective studies better than retrospective 10:24:26 11 studies at answering questions? 10:24:27 12 A. If you mean is it better to collect the data -- is it 10:24:32 13 better to collect the data before the exposure occurred and 10:24:37 14 before the disease occurred, then yes, that's better than 10:24:40 15 collecting the data after the exposure occurred and the 10:24:48 16 disease occurred. 10:24:49 17 Q. So prospective is better? 10:24:52 18 A. As long as we're understanding each other. I want to make 10:24:56 19 sure we're using the same terms. 10:25:03 20 Q. I think we are. 10:25:03 21 I mean, are you aware, for example, that way back in 10:25:03 22 1990 Dr. David Wheadon of SmithKline Beecham went to Europe 10:25:06 23 and met with seven international experts, opinion leaders on 10:25:10 24 this issue of suicide, and at that time Prozac was what he 10:25:14 25 was focusing on, and they unanimously said the best way to 1046 10:25:18 1 study this is with a prospective study? Are you aware of 10:25:27 2 that? 10:25:27 3 A. Prospective data? 10:25:28 4 Q. Prospective study? 10:25:29 5 A. Prospectively collected data? 10:25:32 6 Q. Yes, sir. 10:25:33 7 A. I'm not aware of what you're talking about. 10:25:36 8 Q. No one has told you that? 10:25:37 9 A. No, I have no idea what you're talking about. 10:25:39 10 Q. Would you agree with those seven international experts 10:25:42 11 that if we wanted to find out whether Paxil poses a risk of 10:25:47 12 violence or suicide for a small, vulnerable subpopulation of 10:25:52 13 people, that the best way to answer that question is with a 10:25:55 14 prospective study rather than a retrospective study? 10:25:59 15 A. You would want to prospectively -- you would want to 10:26:05 16 collect your data before. You would want to enroll your 10:26:12 17 patients in your study before the disease -- before the 10:26:17 18 exposures have happened and before the disease has occurred. 10:26:20 19 Q. So are you saying you agree with the seven international 10:26:23 20 experts that it is better to study it prospectively? 10:26:26 21 A. You would want to, yeah, enroll your patients in the 10:26:29 22 study, you would want to have planned your study, yeah, 10:26:33 23 before. 10:26:33 24 Q. Now, study design is very, very important for an 10:26:37 25 epidemiologist, isn't it? 1047 10:26:41 1 A. Potentially, yes. 10:26:42 2 Q. I mean, I was noting the metaphor you used, and I think it 10:26:46 3 is a good one, you say the study has to be properly equipped 10:26:50 4 and has to have a skilled pilot like the airplane, right? 10:26:54 5 A. Right. 10:26:55 6 Q. And when you're talking about a properly equipped study, 10:26:58 7 you're talking about one that has clearly defined goals from 10:27:02 8 the outset that is designed to answer the question. True or 10:27:06 9 not true? 10:27:07 10 A. Repeat that question. 10:27:09 11 Q. In the field of epidemiology when one is going to conduct 10:27:11 12 a prospective study, is it important to design that study so 10:27:15 13 that it is, you know, honed in and focused on the question 10:27:20 14 you're trying to answer? 10:27:21 15 A. Not necessarily, no. 10:27:23 16 Q. No? 10:27:24 17 A. No. 10:27:25 18 Q. So is there something in randomized clinical trials called 10:27:30 19 the stated hypothesis? 10:27:33 20 A. There are times when you, for example, might want to do 10:27:37 21 your analyses afterwards. That may be the best thing and the 10:27:40 22 right thing to do. We may be disagreeing on -- may not be 10:27:44 23 using the terms in the same way. 10:27:46 24 Q. I'm talking about study design in the field of 10:27:48 25 epidemiology. 1048 10:27:50 1 A. Right. 10:27:50 2 Q. Is it important when you're going to conduct a study to 10:27:53 3 know what questions you're going to answer? 10:27:57 4 A. No, not necessarily. 10:28:00 5 Q. So like, to take your example, if you had done a 10:28:06 6 randomized clinical trial, a controlled trial, that's 10:28:11 7 prospective, right? 10:28:12 8 A. That would be prospective. 10:28:13 9 Q. And if you had done one to find out whether Prozac causes 10:28:18 10 breast cancer, you would have stated that in the hypothesis 10:28:22 11 of the study, wouldn't you? 10:28:24 12 A. No, there's -- I slipped earlier when I was saying -- and 10:28:29 13 let me expand a little bit on it. 10:28:32 14 There is actually -- the first thing we actually 10:28:34 15 looked for was was there existing clinical trial data that we 10:28:39 16 could examine. And the reason why that would be the first 10:28:41 17 and best thing to do is for the following reason: If we had 10:28:47 18 waited, tried to go out and do clinical trials, we would have 10:28:51 19 had to wait. Do you know how long it takes for breast cancer 10:28:55 20 to develop? 10:28:56 21 Q. I do. 10:28:57 22 A. So actually the best and first thing you should do is look 10:29:00 23 at randomized controlled clinical trial data existing for the 10:29:07 24 following reason: One is if you wait and actually do a study 10:29:09 25 where you, you know, randomized women to antidepressant, 1049 10:29:13 1 nonantidepressant, placebo, you potentially would have to 10:29:17 2 wait 30 or more years before you can answer the question. 10:29:21 3 And that may be too long. It is also expensive to do that. 10:29:26 4 Q. People could die while you're doing the study? 10:29:28 5 A. While you're doing the study. 10:29:30 6 And the other reason why you would seek out existing 10:29:32 7 clinical trial data, the reason you would seek it out first 10:29:35 8 is because it is the highest quality data. 10:29:37 9 So the first thing you do is try to get data, 10:29:40 10 existing data for a rapid answer that's from that -- you 10:29:43 11 know, my left-hand top-hand corner. 10:29:47 12 Q. And was there such data? 10:29:55 13 A. On what? 10:29:55 14 Q. The existing clinical trials. 10:29:55 15 A. Are we talking antidepressants and breast cancer? 10:29:56 16 Q. Yes, sir. Had anyone collected data when they did the 10:29:58 17 existing randomized controlled trials that was designed to 10:30:02 18 answer the question of whether these drugs cause breast 10:30:05 19 cancer? 10:30:05 20 A. Design is not the important issue. It is -- we needed to 10:30:09 21 see, we needed to find was there existing clinical trial 10:30:14 22 data. If it had been available, that would have been our 10:30:16 23 first and preferred means using the already collected data 10:30:19 24 from existing clinical trials. 10:30:21 25 Q. But it wasn't there, was it? 1050 10:30:23 1 A. The trials -- the randomized clinical trials didn't exist. 10:30:27 2 Q. There had been randomized clinical trials with those 10:30:30 3 drugs, hadn't there? 10:30:31 4 A. Not where they collected breast cancer -- 10:30:34 5 Q. My very point. The trials that had been conducted -- 10:30:38 6 there had been umpteen zillion randomized clinical trials 10:30:43 7 with Prozac, hadn't there, Dr. Wang? 10:30:47 8 A. What do you mean by umpteen? 10:30:49 9 Q. A whole bunch, there had been a whole bunch? 10:30:52 10 A. To study breast cancer you need a lot because it is a 10:30:55 11 rare -- it is not that rare, but it is rare in the sense that 10:30:57 12 among, for example, especially a young group of women you 10:31:01 13 have to have a lot and you have to wait a long time before 10:31:03 14 they develop breast cancer so you need a lot. When you say 10:31:08 15 umpteen, even though there may have been 20, 30, you would 10:31:13 16 still might even need more than that. 10:31:16 17 In any case, the trials weren't available for the 10:31:21 18 study. 10:31:22 19 Q. When you started looking into that issue did you have some 10:31:24 20 idea of the incidence rate, if it were true, that Prozac 10:31:27 21 caused breast cancer? Did you have in your mind from the 10:31:31 22 case reports or animal studies some notion of what -- of how 10:31:35 23 rare it would be, to use your word rare? 10:31:40 24 A. You mean what proportion of women ultimately get breast 10:31:43 25 cancer? 1051 10:31:44 1 Q. Yes, sir. 10:31:44 2 A. A figure is about maybe 1 in 9, 1 in 10 women ultimately 10:31:49 3 in their lives get breast cancer. 10:31:51 4 Q. I'm talking about what you expected the incidence rate to 10:31:54 5 be for those women who were on the drug. You said it was a 10:31:57 6 rare event. What did you mean by rare? 10:32:02 7 A. What I meant by rare is in -- if you examine particularly 10:32:08 8 a younger population, starting out with a population that has 10:32:11 9 a bunch of younger women in it, breast cancer might be rare, 10:32:16 10 let's say, for example, if you're studying a population with 10:32:20 11 a lot of 20- or 30-year-olds. They aren't the ones that get 10:32:24 12 breast cancer. Unfortunately it is women in the later 10:32:29 13 decades. 10:32:30 14 Q. Are we talking 2 or 3 percent of the population? Is that 10:32:32 15 rare? 10:32:33 16 A. Let me just clarify, in the entire population -- in other 10:32:37 17 words, if you look at women who at the end of their lives -- 10:32:41 18 if you're only looking at women who have completed their 10:32:43 19 lives, maybe about 1 in 9 women in the world will develop 10:32:47 20 breast cancer. 10:32:48 21 But, it is different to do a study that includes 10:32:52 22 women in their 20s, 30s, 40s. It is going to be rarer 10:32:57 23 because these women haven't gotten to the end of their lives, 10:33:00 24 so breast cancer will be rarer. 10:33:02 25 Q. Dr. Wang, was your study designed to detect a doubling of 1052 10:33:06 1 the risk? 10:33:07 2 A. Yes, it was. 10:33:12 3 Q. Odds ratio, relative risk, what was the measure? 10:33:16 4 A. We used a variety of measures, one called a hazard ratio. 10:33:20 5 It is from, just to give you a term, survival analysis. The 10:33:25 6 reason we use that is because of the dropout rate. Women can 10:33:30 7 drop out of our study, so you have to use survival analysis. 10:33:34 8 Q. And survival analysis is the mathematical way to take the 10:33:38 9 few women left and try to extrapolate from that data to cover 10:33:42 10 the whole patient base; is that right? 10:33:45 11 A. If you have dropouts -- if women sort of move out of the 10:33:49 12 state of New Jersey, we lose information on them, you know, 10:33:53 13 in our study, and because of that kind of dropout or loss of 10:33:58 14 information we use survival analysis. 10:34:00 15 Q. And was your study specifically designed to detect a 10:34:04 16 doubling of the risk? 10:34:06 17 A. It was powered to do that. 10:34:10 18 Q. Powered to do that, I think I may know because I've tried 10:34:13 19 to learn a little epidemiology, but would you explain to 10:34:17 20 these folks what it means when you say it was powered to do 10:34:21 21 that? 10:34:21 22 A. Sure. If I can refer back to my -- remember when I 10:34:24 23 defined what statistical significance means? The -- what 10:34:30 24 powered means is you could show statistical significance. 10:34:36 25 And just, if I may review, statistical significance when you 1053 10:34:40 1 see a difference, like in our case, let's say, for example, 10:34:43 2 we saw -- I'll just go back to my example, if here's patients 10:34:51 3 who are taking drug A, here are patients taking drug B or 10:34:55 4 nothing or sugar pill, you may find a difference on whatever 10:34:58 5 measure you're looking at. Numerically if you look at just 10:35:02 6 the numbers, this percentage may be higher than this 10:35:05 7 percentage. 10:35:06 8 And you need to say, "Is this a real difference. Is 10:35:12 9 it just due to chance or error" -- 10:35:14 10 Q. Can I try -- I'm sorry. I didn't mean to interrupt you. 10:35:18 11 See if this will help: Are you saying when it is powered 10:35:21 12 that you need enough women in the study to detect a real 10:35:25 13 phenomenon? 10:35:27 14 A. To show a statistically significant finding if it is 10:35:32 15 there. If it is there. 10:35:33 16 Q. How many woman would you have needed to answer that 10:35:36 17 question for this rare event? 10:35:37 18 A. We did a calculation. I can't off the top of my head 10:35:41 19 actually tell you how many. 10:35:42 20 Q. Ballpark. Thousands? 10:35:45 21 A. Thousands. 10:35:47 22 Q. Tens of thousands? 10:35:48 23 A. Tens of thousands. 10:35:49 24 Q. So you would need a large, large study population to get a 10:35:52 25 reliable, statistically significant answer to that question, 1054 10:35:56 1 right? 10:35:57 2 A. We didn't -- there are different levels, also, of 10:36:00 3 significance. And what -- let me sort of try to simply say, 10:36:08 4 to show a difference it depends how big a difference you want 10:36:11 5 to show. If you want to show a very, very big difference, 10:36:15 6 you don't need that many people. If you want to show a very, 10:36:18 7 very small difference is a real one, you need more patients. 10:36:23 8 Q. If it is a rare phenomenon, if it involves a small 10:36:26 9 percentage of patients, you need a lot more people to power 10:36:30 10 the study properly, don't you? 10:36:33 11 A. Potentially. 10:36:34 12 Q. Okay. 10:36:35 13 THE COURT: Why don't we take our break now, 10:36:38 14 Mr. Preuss? 10:36:39 15 MR. PREUSS: That would be fine. 10:36:40 16 THE COURT: Take our morning recess and stand in 10:36:42 17 recess for 15 minutes. 10:36:45 18 (Recess taken 10:35 a.m. until 10:55 a.m.) 10:59:29 19 THE COURT: Before we proceed, Dr. Wang, you 10:59:32 20 understand you're still under oath? 10:59:34 21 THE WITNESS: Yes, I do. 10:59:36 22 Q. (BY MR. VICKERY) Dr. Wang, did you receive any 10:59:38 23 information or instructions during the break that will assist 10:59:41 24 you in answering my questions this morning? 10:59:44 25 A. Could you repeat the question? 1055 10:59:46 1 Q. Did you get any information or anything during the course 10:59:48 2 of the break that alters any of the answers you've given so 10:59:51 3 far or affects any of the answers you're going to give in the 10:59:54 4 future? 10:59:55 5 A. No. 10:59:56 6 Q. Okay. We were talking before the break about prospective 11:00:01 7 and retrospective studies and specifically about study 11:00:05 8 design. Would you agree, to continue with your airplane 11:00:24 9 metaphor, that it is appropriate and important that you have 11:00:28 10 rating instruments that are adequate to the task; in other 11:00:32 11 words, that will measure what it is you need to look at? 11:00:35 12 A. Yes, it is important to have -- by things that you're 11:00:39 13 measuring, I think you mean outcomes and exposures. And yes, 11:00:44 14 it is important to have good measures of exposures to things 11:00:47 15 like drugs and also good measures of the outcomes you're 11:00:51 16 looking for. 11:00:51 17 Q. So if the outcome we're looking for is treatment-emergent 11:00:57 18 suicidality, it is important to use a rating scale that 11:01:01 19 measures that in an accurate way, isn't it? 11:01:05 20 A. Yes, that's a good thing. 11:01:06 21 Q. You said you read Dr. Mann's paper he wrote on behalf of 11:01:11 22 the ACNP. Did you also read his paper that he wrote in 1991 11:01:15 23 with his colleague Dr. Kapur, the Mann and Kapur -- 11:01:19 24 A. You said did I write it? 11:01:22 25 Q. Read it. 1056 11:01:23 1 A. Did I read it? 11:01:24 2 Q. Yes. 11:01:24 3 A. I don't think I read that. If I did, it escapes me. I 11:01:27 4 don't recall it. 11:01:28 5 Q. All right. You're aware of who Dr. J. John Mann is, 11:01:32 6 aren't you? 11:01:33 7 A. I only know that he's an expert. I actually don't know 11:01:36 8 him personally. 11:01:38 9 Q. Are you aware of his reputation in the field of 11:01:40 10 suicidology? 11:01:41 11 A. I only know that he is. I'm not a suicidologist so I 11:01:46 12 don't know his reputation in particular. 11:01:48 13 Q. You're not a suicidologist or a psychopharmacologist, are 11:01:53 14 you? 11:01:54 15 A. Could you define psychopharmacologist? 11:01:57 16 Q. Well, would you call yourself one? 11:02:00 17 A. It depends what you're trying to -- what you mean by that. 11:02:04 18 In other words, somebody who prescribes drugs, researches 11:02:08 19 psychiatric medication -- 11:02:09 20 Q. Would you call yourself a psychopharmacologist? 11:02:12 21 A. I do research on psychiatric medications. 11:02:15 22 Q. Are you a member of the American College of 11:02:18 23 Neuropsychopharmacologists? 11:02:21 24 A. Psychopharmacology. 11:02:23 25 Q. The American College of Neuropsychopharmacology? 1057 11:02:30 1 A. I'm not a member. You would actually have to be selected 11:02:31 2 into it. But I did attend the annual meeting that's held for 11:02:34 3 this society last December. 11:02:37 4 Q. So are you a psychopharmacologist or not? 11:02:39 5 A. I do research on psychiatric medications. 11:02:43 6 Q. Don't you tell people that you are a 11:02:45 7 pharmacoepidemiologist? 11:02:47 8 A. That I am. 11:02:48 9 Q. And the department you're in, incidentally, is the 11:02:54 10 Department of Pharmacoepidemiology and Pharmacoeconomics, 11:02:58 11 isn't it? 11:02:59 12 A. Division of, yes. 11:03:00 13 Q. And what is pharmacoeconomics? 11:03:03 14 A. Pharmacoeconomics is also a discipline that's becoming 11:03:08 15 increasingly important because it is -- for better or worse, 11:03:17 16 it is not just how much drugs work or whether they're safe. 11:03:21 17 That's clearly something important to study. But 11:03:23 18 increasingly since health care expenditures are so high it is 11:03:28 19 important to know if a drug is beneficial, how much does it 11:03:31 20 cost for that benefit, you know. 11:03:33 21 So these are specific types of scientific studies 11:03:35 22 where you not only measure the effects of the drug in terms 11:03:40 23 of clinical terms, but you also measure them in terms of 11:03:44 24 their costs, maybe cost savings. 11:03:47 25 Q. In the practice guideline you wrote for depression did you 1058 11:03:51 1 suggest that the best therapy is a combination of drug 11:03:57 2 therapy on the one hand plus traditional psychotherapy on the 11:04:01 3 other? 11:04:01 4 A. I didn't write the guidelines. I was a consultant to the 11:04:04 5 work group that prepared them. 11:04:06 6 Q. Do the guidelines say that the best therapy is the 11:04:10 7 combination of psychotherapy and, where indicated, drug 11:04:15 8 therapy together? 11:04:16 9 A. Are you referring to the -- what are you referring to, by 11:04:18 10 the way, which guideline? 11:04:20 11 Q. The one on depression. 11:04:22 12 A. Among certain patients the combination may be better. 11:04:25 13 Q. And you're aware of published literature that found to a 11:04:28 14 statistically significant degree with an appropriate P value 11:04:31 15 and convergence interval that that is indeed the case? 11:04:36 16 You're aware of that literature, aren't you? 11:04:38 17 A. I reviewed that literature a while ago and, again, I'm not 11:04:42 18 an expert in combination modality treatment. By combination 11:04:47 19 modality it means giving a medication and also psychotherapy 11:04:52 20 together. That's not my area of expertise. I did read the 11:04:56 21 articles when I was a member of the work group, consultant to 11:04:59 22 the work group, and they're not fresh in my mind so I can't 11:05:02 23 really discuss them. 11:05:03 24 Q. From a pharmacoeconomic standpoint it is sure cheaper to 11:05:07 25 just give a guy a pill than to spend an hour of a doctor's 1059 11:05:11 1 time with him each week getting to know him and talking, 11:05:16 2 helping him talk through his problems? Cheaper, isn't it, to 11:05:20 3 give the pill alone? 11:05:22 4 A. No, that's not true. That's where pharmacoeconomics is so 11:05:25 5 important. That may be a hypothesis. You may have that as a 11:05:29 6 question that you asked, but you then actually go and do the 11:05:33 7 studies where you actually need to evaluate. The answer 11:05:37 8 isn't clear to that question you just raised. 11:05:39 9 Q. Why not? I mean, somebody has got to pay for the hour of 11:05:42 10 that doctor's time, don't they? 11:05:46 11 A. It is not clear. It has a lot to do with you need good 11:05:51 12 data from randomized clinical trials in order to do these 11:05:54 13 studies in which you need to know how big an effect is -- how 11:05:58 14 big is the beneficial effect of psychotherapy, talking to 11:06:02 15 someone. You also need to know how big the positive effect 11:06:06 16 is of antidepressants. You need to know what side effects 11:06:10 17 they might cause because each of those can have costs. And 11:06:13 18 you need to know how much money is involved in each of these 11:06:16 19 treatments. 11:06:17 20 You need all of this information. And again, ideally 11:06:20 21 your information, if you can get it, would come from 11:06:23 22 randomized controlled clinical trials. 11:06:26 23 Q. Dr. Wang, as part of your residency you were trained to do 11:06:29 24 psychotherapy, weren't you? 11:06:31 25 A. I received training in it as part of a general adult 1060 11:06:34 1 psychiatry residency. 11:06:36 2 Q. And your rate is $300 an hour, correct? 11:06:39 3 A. For working with -- as a consultant to the lawyers. 11:06:46 4 Q. Isn't it cheaper to give someone a Paxil pill than to 11:06:49 5 spend that hour in psychotherapy with them? 11:06:51 6 A. No, that's not true. That would be a very complicated, 11:06:54 7 very difficult study to do because, again, what you need to 11:06:58 8 know to answer the question, you need to know how much 11:07:02 9 effect, how much clinical benefit is there to psychotherapy. 11:07:07 10 You need to know how much clinical benefit is there to drugs. 11:07:11 11 You need to know all of the costs associated. 11:07:13 12 For example, what if psychotherapy keeps you out of 11:07:16 13 the hospital? That might reduce costs in some way. What if 11:07:24 14 drugs keep you out of the hospital? These are very complex 11:07:24 15 studies. So you can't make simple sort of statements like 11:07:28 16 you made. 11:07:29 17 Q. See if this one is valid. It is pretty simple but would 11:07:32 18 you agree with me that if a patient goes to a doctor who is 11:07:36 19 encouraged to write prescriptions for drugs like Paxil on the 11:07:40 20 one hand but who is not trained to give psychotherapy on the 11:07:44 21 other, that the only treatment modality that that doctor can 11:07:48 22 give for the depression is the one that he's licensed to do, 11:07:51 23 which is to prescribe the medicine? 11:07:54 24 A. Could you repeat that? 11:07:55 25 Q. Yeah. Would you expect an internist who did not have the 1061 11:07:58 1 kind of specialized training in psychotherapy that you've got 11:08:02 2 in your psychiatric residency to do psychotherapy? 11:08:07 3 A. I'm not involved in, you know -- this is not an area that 11:08:11 4 I really am an expert in. 11:08:13 5 Q. Would you get psychotherapy from an oncologist? 11:08:17 6 A. Probably not. 11:08:19 7 Q. Would you get it from an internist? 11:08:21 8 A. An internist -- psychotherapy, you know -- internists can 11:08:26 9 counsel you. They can talk to you. I'm not an expert in 11:08:31 10 what, you know, your internist can or can't -- what kind of 11:08:34 11 psychiatric treatments they can give you or how well they do 11:08:37 12 the psychotherapy. It is not an area of expertise of mine. 11:08:44 13 Q. We've gotten far afield from the area I wanted to talk to 11:08:47 14 you about which is study designs and back to our prospective, 11:08:51 15 retrospective issue. 11:08:54 16 Can you tell me, sir, is metaanalysis prospective or 11:08:59 17 retrospective? 11:09:00 18 A. The studies involved in -- a metaanalysis of randomized 11:09:05 19 controlled clinical trials is of prospective data. 11:09:11 20 Q. The metaanalysis is a retrospective look at data that was 11:09:16 21 gathered prospectively, isn't it? 11:09:19 22 A. The term that you're -- I don't agree with you. The term 11:09:23 23 that epidemiologists use is secondary analysis of prospective 11:09:28 24 data. 11:09:29 25 Q. So in a metaanalysis are you going back and looking at 1062 11:09:33 1 data that was already collected for another purpose? 11:09:37 2 A. You're doing a secondary analysis of prospectively 11:09:41 3 collected data. 11:09:42 4 Q. Okay. But when the data was prospectively collected, if, 11:09:46 5 for example, they used a HAM-D instead of Beck Suicidal 11:09:51 6 Ideation Scale, which Dr. Mann recommended, then the answer 11:09:56 7 is only as good as the data collected in the first place, 11:09:59 8 isn't it, Doctor? 11:10:00 9 A. I'm not aware of what -- what did Dr. Mann recommend? 11:10:04 10 Q. The Beck Suicidal Ideation Scale. You didn't see that in 11:10:08 11 the ACNP paper? 11:10:11 12 A. I don't recall seeing that. 11:10:11 13 Q. Do you know what the Beck Suicidal Ideation Scale is? 11:10:14 14 A. It is a measure of suicide. 11:10:16 15 Q. And how many different items do they rate on that? 11:10:19 16 A. I'm not certain, but there's multiple. 11:10:22 17 Q. I believe Dr. Wheadon told us on Friday there's 21 and 11:10:27 18 they only grade 19 of them. 11:10:29 19 A. Okay. 11:10:29 20 Q. Dr. Mann wrote that that's a more refined instrument for 11:10:32 21 measuring treatment-emergent suicidality than a HAM-D. You 11:10:37 22 don't have any reason to disagree with J. John Mann on that, 11:10:41 23 do you? 11:10:41 24 A. It is -- I don't -- I'm not sure I agree with you. There 11:10:46 25 are different ways to measure suicidal thoughts and the Beck 1063 11:10:50 1 is one way, the Hamilton is another. There are multiple ways 11:10:55 2 to measure suicidal thoughts. 11:10:57 3 Q. I'm not asking you to agree with me, Dr. Wang. I' asking 11:11:01 4 whether you agree with Dr. J. John Mann who wrote on behalf 11:11:05 5 of the very prestigious American College of 11:11:08 6 Neuropsychopharmacologists that the Beck Suicidal Ideation 11:11:13 7 Scale would be a better barometer to use in prospective 11:11:16 8 studies going forward from that point in time? 11:11:19 9 MR. PREUSS: No foundation, Your Honor. He has to 11:11:21 10 show him the article. 11:11:23 11 THE COURT: The witness can answer if he knows. 11:11:25 12 A. I don't recall that so I don't really have a basis to 11:11:28 13 answer your question. 11:11:29 14 Q. (BY MR. VICKERY) I will show it to you in a little bit, 11:11:31 15 then. We will get back to it. 11:11:36 16 The studies that you've listed -- Lopez-Ibor, 11:11:40 17 Montgomery, Kahn, Verkes, Sheehan, Dunbar -- tell us which of 11:11:45 18 these are metaanalysis. Lopez-Ibor? 11:11:50 19 A. Metaanalysis. 11:11:51 20 Q. Montgomery? 11:11:52 21 A. Metaanalysis. 22 Q. Kahn? 11:11:55 23 A. Metaanalysis. 11:11:56 24 Q. Sheehan? 11:11:58 25 A. Metaanalysis. 1064 11:11:59 1 Q. Dunbar? 11:11:59 2 A. Metaanalysis. 11:12:01 3 Q. All of them looking back at data collected in other 11:12:04 4 trials, in clinical trials, that had already been collected 11:12:08 5 and the data was already there, right? 11:12:15 6 A. It was -- they're metaanalysis of prospectively collected, 11:12:15 7 randomized controlled clinical trial data. 11:12:16 8 Q. Did you as part of your preparation for testifying read 11:12:19 9 the deposition testimony of Dr. Christine Blumhardt from 11:12:24 10 SmithKline Beecham? 11:12:27 11 A. I don't recall reading that. 11:12:28 12 Q. If she said that these trials, these randomized controlled 11:12:33 13 trials on Paxil were not designed to measure or detect 11:12:38 14 treatment-emergent suicidality -- if she said that do you 11:12:42 15 have any reason to disagree with her? 11:12:45 16 A. I would disagree. I think they were designed to measure 11:12:49 17 suicidality, treatment-emergent suicidality, also reductions 11:12:54 18 in suicidality. 11:12:55 19 Q. So that we're perfectly clear, the person you're 11:12:59 20 disagreeing with is a vice-president of SmithKline Beecham, 11:13:02 21 has a doctorate degree and is the person who was involved in 11:13:05 22 the study of this drug and yet you're telling us you disagree 11:13:09 23 with her about the design of those studies when they were 11:13:12 24 done? 11:13:12 25 A. First of all, I don't know who she is. I don't believe I 1065 11:13:14 1 read whatever you're referring to, so I have no basis to 11:13:17 2 comment on whatever she said. But each of those -- well, of 11:13:22 3 the studies that I talked about that dealt with some measure 11:13:26 4 of suicidality, so we're not talking about Sheehan and 11:13:31 5 Dunbar, but in terms of the -- you're referring now to the 11:13:35 6 metaanalysis? 11:13:37 7 Q. Right. 11:13:38 8 A. They definitely contain measures of suicidality. 11:13:41 9 Q. Of those studies would you -- the metaanalysis is a 11:13:46 10 retrospective looking at prospective data, isn't it? 11:13:50 11 A. You're misusing the word "retrospective." They're 11:13:54 12 secondary analyses of prospectively collected data. 11:13:58 13 Q. Okay. You know what a study design or hypothesis is, 11:14:01 14 don't you? 11:14:02 15 A. If you have defined what they were, I could or could not 11:14:06 16 agree with you. 11:14:07 17 Q. Okay. Study design, to see if Paxil is effective in 11:14:12 18 treating obesity: That would be a study design, wouldn't it? 11:14:18 19 A. It sounds like you're raising a question. 11:14:21 20 Q. Well, I'm raising a question that would be answered by a 11:14:24 21 randomized controlled trial. 11:14:26 22 A. You're saying does a drug cause obesity? 11:14:30 23 Q. No, treat, is it effective in treating obesity? 11:14:33 24 A. Could you repeat what your question is? I'm getting lost. 11:14:36 25 Q. An example of a study design would be we're going to 1066 11:14:39 1 conduct this randomized controlled trial to determine whether 11:14:42 2 Paxil is effective in treating obesity. 11:14:47 3 A. Your question is what, that you could do such a study? 11:14:49 4 Q. Is that an example of what that study design might look 11:14:53 5 like? 11:14:54 6 A. It is an example of a randomized controlled clinical 11:14:57 7 trial. 11:14:58 8 Q. In most of the randomized controlled trials that were 11:15:01 9 done, the 2963 patients that were submitted with a new drug 11:15:07 10 application for Paxil, they were studying to see will Paxil 11:15:12 11 help people with depression? That was the stated goal? 11:15:15 12 A. They had measures of depression, they had measures of lots 11:15:18 13 of things, including measures of suicide, suicidal thoughts, 11:15:22 14 ideation. 11:15:22 15 Q. And the measures of suicidal thoughts was one question on 11:15:25 16 the Hamilton-D, wasn't it? 11:15:29 17 A. What set are you referring to? 11:15:32 18 Q. I'm talking about all of the randomized controlled trials 11:15:35 19 done in the United States with respect to Paxil. The only 11:15:39 20 barometer of suicide was the Hamilton-D Item 3 which is one 11:15:44 21 question; isn't that true, Dr. Wang? 11:15:46 22 A. No, that's not correct. 11:15:47 23 Q. What's the other barometer of suicide? 11:15:50 24 A. Of the metaanalyses that I reviewed -- for example, 11:15:53 25 Montgomery had three measures in it. There's not only the 1067 11:15:57 1 Hamilton measure of suicidality, but there's also this 11:16:02 2 measure called the Montgomery-Asburg Measure of Depression 11:16:06 3 which has a suicidal measure in it. It is in fact actually 11:16:10 4 probably the better of -- it is a very sensitive measure. It 11:16:14 5 is specifically designed to study the effects of 11:16:17 6 antidepressant drugs, so it is very sensitive to effects such 11:16:23 7 as changes in suicidal thoughts, newly emergent suicide. 11:16:29 8 Q. Just one question on the Montgomery-Asburg scale, too, 11:16:32 9 isn't this, Dr. Wang? 11:16:33 10 A. There's six response categories to it, to the 11:16:38 11 Montgomery-Asburg suicide question. But let me -- can I back 11:16:42 12 up? There's also a third in -- measure of suicidality called 11:16:50 13 the symptom checklist 56 which is also in there, so there's 11:16:53 14 three measures of suicidal thoughts. 11:16:56 15 Q. Okay. Now, those were -- Dr. Montgomery is in the United 11:17:01 16 Kingdom, you know that, don't you? 11:17:03 17 A. He is in the United Kingdom. 11:17:11 18 Q. And the Montgomery studies conducted by he and Dr. Baldwin 11:17:11 19 were done not in this country but over in the United Kingdom 11:17:12 20 or Europe? 11:17:13 21 A. Which studies? 11:17:15 22 Q. The ones done by Dr. Montgomery and Dr. Baldwin? 11:17:19 23 A. Are you referring to the trials in the Montgomery paper? 11:17:22 24 Q. Yes, sir. 11:17:23 25 A. I would have to look to see specifically where they were 1068 11:17:26 1 conducted. I don't know that off the top of my head. 11:17:30 2 Q. Now, Verkes was a year-long study, right? 11:17:36 3 A. Yes. It was a clinical trial that was -- they set out to 11:17:40 4 study -- if you remember, again, I reviewed it. I won't 11:17:47 5 re-review it, but they set out to try to follow patients for 11:17:51 6 as long as a year, which is a long time in terms of clinical 11:17:56 7 trials. 11:17:56 8 Q. And how many of the 91 patients who started were still 11:17:59 9 there at the end of a year? 11:18:00 10 A. I don't remember, but some of them -- 11:18:02 11 Q. It was 19, wasn't it? 11:18:04 12 A. I would have to look at the paper. I would have to look 11:18:08 13 at the paper. 11:18:09 14 Q. If it was 19, and I will represent to you it was, are you 11:18:12 15 telling these folks that they can draw reliable scientific 11:18:15 16 conclusions about a small, vulnerable subpopulation at risk 11:18:19 17 for a rare event from 19 patients where the rest of the 91 11:18:25 18 patients dropped out? 11:18:28 19 A. Sure. It is actually a very powerful study because they 11:18:32 20 knew, you know, if you're going to conduct a year-long 11:18:36 21 study -- for example, if we were going to conduct such a 11:18:39 22 study, you would anticipate that you might lose certain 11:18:44 23 patients because they might move out of the area or develop 11:18:47 24 side effects or they stop the trial. 11:18:49 25 And you properly design the study to take into 1069 11:18:52 1 account the dropouts and side effects. I think I mentioned 11:18:56 2 the analytic technique you use. 11:18:59 3 Q. Survival analysis? 11:19:01 4 A. Survival analysis. It is essential to use that analysis. 11:19:05 5 It is the proper way to handle any dropping out. And Verkes 11:19:08 6 fortunately did do the proper thing in that they used 11:19:11 7 survival analysis to analyze the data. 11:19:13 8 Q. I thought you told us just a few minutes ago if you're 11:19:17 9 looking for a rare phenomenon as you were in the breast 11:19:19 10 cancer issue that a study would require thousands, tens of 11:19:23 11 thousands of patients? 11:19:24 12 A. No, the reason -- remember, I said -- if I could just back 11:19:27 13 up, I disagree with you and I want to point out why. 11:19:30 14 I said earlier it depends -- there's a lot of things 11:19:35 15 that go into, for example, the power calculation, one of 11:19:38 16 which is how frequently do you think your outcome is going to 11:19:41 17 occur. 11:19:42 18 And in the Verkes case, they knew this is a high risk 11:19:45 19 population. Remember, I told you the Verkes patients were 11:19:49 20 patients who had a recent suicide attempt. You can't really 11:19:52 21 get a higher risk population than that. These were people 11:19:56 22 who really are in jeopardy, in danger of having a subsequent 11:20:00 23 event. 11:20:01 24 Q. I submit to you you can, Dr. Wang. 11:20:03 25 A. Submit what? 1070 11:20:04 1 Q. You can get a higher risk group. Have you seen the study 11:20:09 2 protocol drafted by Eli Lilly & Company to study this very 11:20:13 3 issue? 11:20:15 4 A. There are many risk factors for suicide. I don't know 11:20:18 5 which one you're referring to. 11:20:20 6 Q. Have you seen the draft study that was prepared by 11:20:23 7 Dr. Charles Beasley with assistance of others, including 11:20:27 8 Dr. David Wheadon, at Eli Lilly & Company to study this 11:20:31 9 issue? Have you seen that document? 11:20:34 10 A. I have no idea what you're talking about. 11:20:36 11 Q. All right. Now, what they were going to do in that study 11:20:42 12 is they were going to rechallenge patients who had developed 11:20:45 13 suicidal ideation on their SSRI drug. Now, would you agree 11:20:52 14 that if what we're looking for are a small subpopulation of 11:20:58 15 people who are at risk because of this kind of a drug, then 11:21:03 16 in terms of a population that is, quote, enriched for 11:21:09 17 purposes of our study, that's the best possible group of 11:21:14 18 patients to study the phenomenon on? Would you agree with 11:21:19 19 that? 11:21:19 20 A. I'm not sure what your question is. 11:21:21 21 Q. Let me try again. Have you ever had allergy testing? 11:21:25 22 A. Personally? 11:21:25 23 Q. Yes. 11:21:26 24 A. No, I don't know what you're referring to. 11:21:27 25 Q. One of those pinprick things where you lie down? 1071 11:21:30 1 A. I've never had that. 11:21:31 2 Q. You're familiar with that process, are you not? 11:21:33 3 A. I know they can put in a number of allergens but I've 11:21:37 4 never had it. 11:21:38 5 Q. And you know if a person because of their body makeup is 11:21:42 6 going to have a bad reaction, that's the way that allergists 11:21:45 7 test for it, they pinprick various places and say oh, boy, 11:21:54 8 the third one we pricked, that's cat dander and look how that 11:21:54 9 thing welted up and you know then that that person chemically 11:21:57 10 is allergic is cat dander, right? 11:22:00 11 A. Having never had it, I would say yes. 11:22:03 12 Q. All right. Now, the same kind of methodology was what was 11:22:07 13 being used or suggested by Eli Lilly when they were going to 11:22:11 14 study this issue. They were going to take people who had 11:22:15 15 developed intense suicidal ideation on the drug and then give 11:22:19 16 it to them again. 11:22:22 17 MR. PREUSS: Your Honor, no foundation. 11:22:23 18 A. I'm not sure what you're referring to. 11:22:25 19 THE COURT: What's your objection? 11:22:27 20 MR. PREUSS: No foundation whatsoever. He said he 11:22:29 21 had no familiarity with it and now we're hearing questions 11:22:31 22 about it. 11:22:32 23 THE COURT: Well, sustained in the form that you've 11:22:35 24 asked him the question. 11:22:38 25 Q. (BY MR. VICKERY) Doctor, the document is in evidence and 1072 11:22:40 1 I can show it to you if you want. 11:22:42 2 My question to you, sir, as an epidemiologist, would 11:22:47 3 you agree with the folks over at Eli Lilly that if what we're 11:22:50 4 looking for is a small subpopulation of patients who are at 11:22:57 5 risk, that the best way to find out if those patients are 11:22:59 6 really at risk is to find people who have had a bad reaction 11:23:03 7 to it and then rechallenge them with that drug? 11:23:06 8 MR. PREUSS: Objection, no foundation. 11:23:07 9 THE COURT: Overruled. He can answer if he has an 11:23:10 10 opinion. 11:23:12 11 A. Maybe I should see this document. I have no idea what 11:23:14 12 you're talking about so it is hard for me to answer the 11:23:17 13 question. I don't know what you're talking about. 11:23:20 14 Q. (BY MR. VICKERY) I'm talking about an experiment. One of 11:23:22 15 the things in your file was the 1965 speech given by Sir 11:23:26 16 Austin Bradford Hill, isn't it? 11:23:29 17 A. Yes, that is. 11:23:30 18 Q. And in your field of epidemiology, he's a real famous guy, 11:23:34 19 isn't he? 11:23:36 20 A. He's an early epidemiologist. A lot has happened since 11:23:40 21 the 1960s. 11:23:41 22 Q. Why is this in your folder? 11:23:43 23 A. In part because people were referring to the Bradford Hill 11:23:49 24 criteria, and it seems to have far more importance in the 11:23:56 25 legal community than it does to epidemiologists. 1073 11:24:01 1 Q. Are the red markings in this file yours? 11:24:04 2 A. There's a few points when I had to review it. They barely 11:24:07 3 teach this in epidemiology graduate programs because it is -- 11:24:15 4 again, we're talking 1960s. He was giving his valadictory 11:24:21 5 speech, let's say, and that's what that is. It is basically 11:24:24 6 a transcript of a speech given by Bradford Hill. 11:24:27 7 I have to review it. I haven't seen it in a long 11:24:31 8 time, so I did make some notes on it. 11:26:02 9 Q. He lists a bunch of different factors epidemiologists 11:26:02 10 would look at in order to determine whether to make an 11:26:02 11 inference of causation from a positive association, right? 11:26:02 12 A. It is interesting that you chose that, because that's -- I 11:26:02 13 actually wish I had said this, but that's the reason why I 11:26:02 14 said randomized -- remember I said randomized controlled 11:26:02 15 trials are true experiments. They're true -- 11:26:02 16 Q. Dr. Wang, excuse me for interrupting, sir, but what 11:26:02 17 question of mine are you answering? 11:26:02 18 A. Sorry, I got ahead of myself. 11:26:02 19 Q. That's okay. I understand you want to be helpful. 11:26:02 20 Experiment. Would you read this? 11:26:02 21 A. Actually, I'm having -- 11:26:02 22 Q. It is right there on your screen. 11:26:02 23 A. Thank you. "Occasionally it is possible to appeal to 11:26:02 24 experimental or semi-experimental evidence. Because of an 11:26:02 25 observed association, some preventative action is taken. 1074 11:26:02 1 Does it in fact prevent? The dust in the workshop is 11:26:02 2 reduced, lubricating oils are changed, person stops smoking 11:26:02 3 cigarettes, is the frequency of the associated effect. Here 11:26:02 4 is the strongest" -- 11:26:02 5 Q. You underlined strongest and wrote in red with a red star, 11:26:02 6 right? 11:26:02 7 A. Yes. 11:26:02 8 Q. Is that because you agree with Bradford Hill or disagree 11:26:02 9 with him? 11:26:02 10 A. The reason I did it is because it is interesting that 11:26:02 11 there is -- this is the view, this is the prevailing view of 11:26:02 12 epidemiologists that the best thing you can do is a 11:26:10 13 randomized controlled clinical trial where you randomly 11:26:10 14 assign patients to drug X, Y, placebo. They're the best form 11:26:13 15 of data. 11:26:14 16 Q. He's not talking about randomized controlled trial. He's 11:26:18 17 talking about experiment. He said the strongest support for 11:26:21 18 the causation hypothesis may be revealed, doesn't he? 11:26:25 19 A. Yes. By experiment -- again, the distinction, 11:26:28 20 epidemiologists do two types of studies. There's the 11:26:31 21 randomized clinical trial which is an experiment. It is like 11:26:35 22 giving rats drug X or Y. There aren't doctors in the real 11:26:45 23 world prescribing drugs to rats so it is random, so that's 11:26:45 24 why it is called an experiment. 11:26:46 25 The other type of study that an epidemiologist can do 1075 11:26:49 1 are the observational studies I was describing to you where 11:26:53 2 it is no experiment, they're just watching how 11:26:56 3 antidepressants are being used in the real world. And there 11:26:59 4 can be biases. That's why Bradford Hill was very, you know, 11:27:03 5 sort of smart to say that experimental data is the best. I 11:27:10 6 think the word was strongest. 11:27:12 7 Q. Is challenge, rechallenge data experimental? 11:27:17 8 A. There are good -- there can be experimental challenge, 11:27:25 9 rechallenge data, but there can also be nonexperimental 11:27:26 10 challenge, rechallenge data. 11:27:26 11 Q. Is challenge, rechallenge a recognized way in the field of 11:27:31 12 epidemiology to try to get from questions to answers? 11:27:37 13 A. If done properly, yes, challenge, rechallenge can be -- 11:27:41 14 could be used. It can be used -- it is used in rarer 11:27:46 15 circumstances. But if properly done, if it is a true 11:27:50 16 experiment, true randomized experiment, it could be useful. 11:27:55 17 Q. All right. With respect to these six articles that you've 11:28:02 18 listed, the metaanalyses -- Lopez-Ibor, Montgomery, Kahn, 11:28:06 19 Sheehan and Dunbar -- those only five, how many of those were 11:28:12 20 written by people at SmithKline Beecham? 11:28:16 21 A. I don't know that answer. 11:28:19 22 Q. Let me show you the ones I pulled from your file. Dunbar, 11:28:23 23 is he a SmithKline Beecham guy? 11:28:36 24 A. It doesn't usually -- when authors publish articles, 11:28:41 25 they're required to indicate where they're from, and they're 1076 11:28:45 1 usually asterisked. 11:28:48 2 Q. What does it say under both of the names? 11:28:50 3 A. It says SmithKline, but what I don't know is if both of 11:28:53 4 them are at SmithKline or just one of them is. Given there's 11:28:56 5 no asterisk I would probably guess that both of them are. 11:29:00 6 Q. Okay. 11:29:02 7 A. And also let me -- 11:29:03 8 Q. Who is the second author on the Dunbar article? 11:29:07 9 A. Fuell, F U E L L. Can I back up for a second? I don't 11:29:11 10 know if they -- usually when someone says SmithKline at the 11:29:15 11 bottom, it could mean that they received funds to do the 11:29:18 12 study or they actually could be an employee, and I can't 11:29:22 13 tell. 11:29:22 14 Q. Who are the two authors on that article? 11:29:26 15 A. G.C. Dunbar and D.L. Fuell. 11:29:32 16 Q. Tell us whether or not those same two people appear as 11:29:34 17 authors on the Sheehan study. 11:29:36 18 A. They also are -- Sheehan is the first author. Dunbar is 11:29:42 19 the second author. Fuell is the third author. 11:29:46 20 Q. And would you look at footnote 2 there on the first page 11:29:49 21 and tell us where Dunbar and Fuell work? 11:29:52 22 A. Here there's a footnote and it says, "CNS therapeutic 11:29:56 23 unit, SmithKline Beecham." 11:29:57 24 Q. So these are SmithKline Beecham employees, right? 11:29:59 25 A. Yeah, this is clearer that they're employees. 1077 11:30:03 1 Q. Now, is that same fellow, G.C. Dunbar, an author on the 11:30:10 2 Montgomery paper? 11:30:11 3 A. Yes, the third author. 11:30:41 4 Q. Let's talk a minute about your report. You have a long 11:30:44 5 report in this case, 25, 26 pages? 11:30:47 6 A. I don't know how long, honestly. The longest one I've 11:30:51 7 written. 11:30:52 8 Q. Did you write it in entirety yourself? 11:30:54 9 A. Yes, I wrote the entire thing. 11:30:57 10 Q. Did it go through drafts? Did you submit drafts and then 11:31:00 11 revise it? 11:31:01 12 A. I didn't submit drafts. I made drafts myself. I mean, I 11:31:05 13 added things, revised some things basically when I was 11:31:09 14 reading. 11:31:10 15 Q. Over what period of time did you prepare that study? 11:31:13 16 A. Study? 11:31:14 17 Q. That report. 11:31:19 18 A. I can't really tell, actually. I don't know the total 11:31:22 19 number of hours. 11:31:24 20 Q. Dr. Wang, in the field of epidemiology do you all kind of 11:31:29 21 avoid the word "cause"? Do you use a different word instead 11:31:33 22 of cause most of the time? 11:31:37 23 A. I have no idea what you're asking. 11:31:39 24 Q. Tell the jury what an association is. First of all, is 11:31:42 25 association a buzzword in the field of epidemiology? 1078 11:31:48 1 A. An association -- I don't know what you mean by buzzword. 11:31:50 2 An association means -- remember, we were talking about 11:31:53 3 exposures to things like drugs and toxins and adverse events. 11:31:58 4 The first thing an epidemiologist does is they look 11:32:02 5 to see is there an association, a mathematical connection 11:32:07 6 between getting the exposure and getting the outcome, the 11:32:11 7 disease. They look for a mathematical relationship. That's 11:32:15 8 the very first thing they do. 11:32:17 9 They also then -- remember, as I said, they check to 11:32:20 10 see if that mathematical connection, if it is statistically 11:32:24 11 significant. Those are the first -- step one and step two 11:32:27 12 that epidemiologists will do. 11:32:30 13 Q. Excuse me. Will you tell the jury what an association is, 11:32:37 14 please, sir? 11:32:37 15 A. Again, it is a mathematical -- maybe the better term, just 11:32:37 16 to make it clearer, is remember I was talking earlier about 11:32:41 17 differences, you know, like one drug is higher on a rating 11:32:44 18 scale than on another -- than another drug might be, so this 11:32:50 19 drug looks like you have a higher score and this one looks 11:32:53 20 like you have a lower score? 11:32:55 21 Again, an association is a mathematical way of saying 11:32:59 22 how connected is getting the drug to having these different 11:33:02 23 outcomes. Maybe that's not helpful, but in any case, 11:33:06 24 that's -- it is an association, it is a mathematical way of 11:33:09 25 saying is the exposure connected, related to getting the 1079 11:33:12 1 outcome or adverse event. 11:33:14 2 Q. Is there also a temporal association? 11:33:17 3 A. Is there a temporal -- 11:33:20 4 Q. Temporal association? Are those terms used in your field? 11:33:27 5 A. You usually want to make sure that the exposure happened 11:33:32 6 before the outcome. If you're trying to determine does a 11:33:34 7 drug cause an outcome, you really want to see that the drug 11:33:38 8 was given before the outcome occurred. If the outcome 11:33:42 9 occurred before the drug was given you might wonder if it is 11:33:45 10 not causing -- if a drug is being given after the outcome 11:33:49 11 occurred, you're less likely to think the drug is causing the 11:33:53 12 outcome. 11:33:54 13 Q. Less likely? How could the drug possibly cause an outcome 11:33:58 14 if the drug were given after the outcome? 11:34:01 15 A. Maybe you were exposed to the drug earlier, like a long 11:34:04 16 time ago. 11:34:05 17 Q. But you were exposed to the drug. 11:34:06 18 A. Sometimes in the studies we do you're not entirely clear 11:34:10 19 what people were exposed to in the past. You could have 11:34:13 20 things like that. But by and large -- so you can't always 11:34:16 21 say it, but most of the time you can say it. 11:34:19 22 Q. Is it fair to say that epidemiology is sort of a quest for 11:34:23 23 understanding risks? 11:34:29 24 A. You're going to have to define some terms here. I'm not 11:34:33 25 sure what you're asking. 1080 11:34:35 1 Q. Which ones, quest, risk? 11:34:38 2 A. Yes. 11:34:40 3 Q. Isn't relative risk a key term? 11:34:43 4 A. Maybe I didn't want to say that because I don't want to 11:34:45 5 use sort of technical terms, but remember I was saying there 11:34:48 6 was a mathematical way of showing whether an exposure is -- 11:34:52 7 how related is this exposure to developing an outcome. That 11:35:02 8 mathematical way of saying how related these things are, one 11:35:05 9 of the ways to measure that is called a relative risk. 11:35:09 10 Q. Is another attributable risk? 11:35:11 11 A. That's a totally different thing. 11:35:13 12 Q. Is another incidence rate? 11:35:14 13 A. No, incidence rate can't tell you an association. What it 11:35:18 14 can tell you is how frequently something has happened. 11:35:22 15 Q. Bear with me. Tell us what the difference is between 11:35:47 16 incidence and prevalence. 11:35:49 17 A. Incidence -- these are all measures of how frequently 11:35:51 18 something is occurring. And let me try to be clear here. 11:36:01 19 Incidence means the frequency of a new case, and prevalence 11:36:06 20 means the frequency of just having -- I can give you examples 11:36:11 21 of both. 11:36:14 22 Let's say you are -- an incidence would be like, for 11:36:20 23 example, having a new heart attack. You've never had a heart 11:36:25 24 attack before and an incidence would be newly occurring heart 11:36:30 25 attacks. So if we wanted to calculate an incidence rate of 1081 11:36:34 1 newly occurring heart attacks in this room, we would ask how 11:36:38 2 many people have newly had a heart attack right now. 11:36:41 3 And we then say it is zero and we then make a 11:36:44 4 denominator, find out the number of people in the room and 11:36:48 5 that's an incidence rate. 11:36:50 6 Prevalence is different, not how many new heart 11:36:53 7 attacks like this second but how many people in this room 11:36:56 8 have ever had a heart attack. And there is -- might be zero. 11:37:01 9 I don't know people's health conditions. But maybe, for 11:37:04 10 example, ten people in here have had a heart attack. The 11:37:07 11 prevalence of having heart attacks in this room would then be 11:37:12 12 10 over the total number of people in this room. That's a 11:37:14 13 prevalence. 11:37:15 14 Q. I appreciate your clarifying that for us and I hope it 11:37:19 15 will become helpful here. 11:37:21 16 I want to talk to you now a bit about things -- 11:37:23 17 you've talked about bias. I want to talk about other 11:37:27 18 confounding factors. Would you please tell the jury what 11:37:31 19 confounding factors are? 11:37:33 20 A. Yeah, confounding is a form of bias. And remember I 11:37:38 21 pointed out there that in order for an observational study to 11:37:42 22 be useful to answering the question of whether a drug causes 11:37:45 23 an adverse event you want to make sure there's no bias. And 11:37:50 24 if there is bias, you need to adjust for it. 11:37:54 25 Confounding is one of the -- it is a way we refer to 1082 11:38:02 1 as bias, and let me give you an example of what confounding 11:38:03 2 bias means. It means there's some other factor that is 11:38:09 3 causing you to have the adverse event. And it also is 11:38:13 4 related to the drug exposure. So it is a third factor. 11:38:17 5 And if you don't take it into account because -- 11:38:23 6 think of it as sort of a -- if you can visualize this -- 11:38:28 7 triangle. If you don't take it into account -- it will 11:38:31 8 look -- because -- here's the drug exposure. Here is the 11:38:35 9 confounder, here is disease. Remember, the confounder is 11:38:40 10 related to the drug exposure. The confounder causes the 11:38:44 11 disease. If you don't take into account that third factor, 11:38:50 12 it will look like the disease is caused by or related at 11:38:53 13 least to the drug. 11:38:57 14 Q. Excellent. 11:38:57 15 A. Let me give a concrete example. 11:39:00 16 Q. Let's use one pertinent to this case, if we may. 11:39:04 17 A. Okay. 11:39:04 18 Q. If there's a condition that's known to be associated with 11:39:07 19 violence or suicide and a person has that condition but then 11:39:12 20 that person also has a drug, then one of the things that 11:39:18 21 confounds the study, makes the study more difficult is you've 11:39:24 22 got to sort which one is contributing and how much? 11:39:30 23 A. That's a wonderful example. 11:39:32 24 Q. Thank you. 11:39:32 25 A. Depression, you probably explained it better than I can 1083 11:39:34 1 explain it. Depression is -- 11:39:37 2 Q. Let's take depression. If we may, let's proceed with 11:39:40 3 specific questions and answers. Suicide is a risk of 4 depression? 11:39:48 5 A. Yes. Can I put the triangle together? 11:39:50 6 Q. If you would, just answer my questions. And is homicide 11:39:54 7 typically a risk of depression? 11:39:57 8 A. I'm not a homicide -- I'm not a homicide epidemiologist. 11:40:01 9 I don't know what the data is. Let me think if I -- I don't 11:40:05 10 know the data well enough on whether depression raises your 11:40:09 11 risk of homicide. 11:40:11 12 Q. So if a person commits suicide but the person was 11:40:20 13 depressed, then suicide (sic) may have contributed, right? 11:40:24 14 A. Repeat that, please. I didn't follow you. 11:40:25 15 Q. If the person commits suicide but the person was 11:40:28 16 depressed, one of the things you would know as a 11:40:30 17 pharmacoepidemiologist is, hey, the depression could be the 11:40:37 18 cause or one cause of the suicide, right? 11:40:39 19 A. Sure. Depression itself can be the confounding factor 11:40:42 20 because depression can cause suicide and depression is the 11:40:46 21 reason why people use antidepressants, because 11:40:49 22 antidepressants, they're not perfect treatments, but they are 11:40:52 23 imperfect treatments for, you know, preventing suicide. 11:40:57 24 Q. Very good. Let's throw in some drugs. 11:40:59 25 Man is depressed. Man commits suicide. But what you 1084 11:41:04 1 learn is man was drunk. He was just drunk as a skunk when he 11:41:10 2 did it. Do you suspect the alcohol was also contributing? 11:41:18 3 A. See, you're asking me to comment on a specific case. This 11:41:21 4 is not a study -- 11:41:23 5 Q. No, I'm asking you a hypothetical question which I'm 11:41:25 6 entitled to do, see, because you're an expert. 11:41:28 7 So if in my hypothetical question a man is depressed 11:41:32 8 and commits suicide and we know from his blood alcohol level 11:41:35 9 that he was just drunk as could be, would you as a trained 11:41:38 10 psychiatrist and pharmacoepidemiologist say, "I'll bet that 11:41:43 11 alcohol had something to do with it"? 11:41:46 12 A. Essentially what you're describing is a case -- let's say 11:41:49 13 this happened. This would be a case report and you can't -- 11:41:52 14 as I've told you, you can't use case reports to say whether 11:41:59 15 something causes something else. It is impossible. 11:42:01 16 Q. Doctor, weren't you trained in your psychiatry residency 11:42:04 17 in techniques of psychological autopsy? 11:42:08 18 A. No, that's not something I was trained in. 11:42:11 19 Q. Are you aware of the fact that within your field of 11:42:14 20 psychiatry there is a methodology used by the United States 11:42:18 21 Army and others to study the cause of suicide and it is 11:42:23 22 called a psychological autopsy? Are you aware of the 11:42:26 23 existence of that type of methodology? 11:42:28 24 A. I have no idea what -- I'm not aware -- I bet you probably 11:42:34 25 it probably has more pertinence to the legal community but it 1085 11:42:38 1 is not something you learn in general psychiatry residencies. 11:42:41 2 And I certainly never learned about it in my training in 11:42:45 3 epidemiology. 11:42:47 4 Q. Are you saying with our man that committed suicide and he 11:42:49 5 was drunk, you can simply not tell us one thing or the other 11:42:52 6 about whether being drunk contributed to the suicide without 11:42:57 7 some kind of a fancy-dancy clinical trial, randomized 11:43:02 8 controlled trial? Is that your testimony, sir? 11:43:10 9 A. If you're trying to say in general that something caused 11:43:10 10 something, a single case report can't do it for you for all 11:43:11 11 of the reasons I gave earlier. 11:43:13 12 If you're talking about a specific individual, a 11:43:15 13 case -- 11:43:16 14 Q. That's what I'm talking about. 11:43:18 15 A. That's not an area -- I just learned what specific 11:43:21 16 causation means. It sounds like it is something more 11:43:24 17 pertinent to sort of the legal community. But in terms of 11:43:28 18 the individual -- whether an individual case is -- you know, 11:43:31 19 something was contributing -- some exposure was contributing, 11:43:34 20 that's not an area I have either training or expertise in. 11:43:37 21 Q. Would you say, sir, just from all you know about 11:43:41 22 psychiatry and science, from all you know about depression, 11:43:46 23 from all you know about alcohol and its effects on a human -- 11:43:52 24 would you say that if this man was depressed and he was drunk 11:43:57 25 and he committed suicide, "I can't tell you. I ain't got a 1086 11:44:01 1 clue whether the alcohol had anything to do with it"? Is 11:44:03 2 that your testimony? 11:44:05 3 A. It would be impossible to say. I could speculate, but 11:44:10 4 I'll tell you, this is not my area of expertise. But I can 11:44:17 5 speculate if you would like. 11:44:18 6 Q. If you don't feel comfortable giving me an answer, tell 11:44:21 7 us. 11:44:22 8 A. I will tell you why I don't feel comfortable. I will give 11:44:25 9 you an example. If, let's say, the person was a real 11:44:31 10 hard-core alcoholic and they drank every day a lot all the 11:44:36 11 time and they were so used to alcohol that they, you know -- 11:44:45 12 their body depended on it, if that person stopped drinking 11:44:52 13 they might actually be in more trouble. So you don't know 11:44:55 14 what the alcohol did. 11:44:56 15 Q. I see. What if the person was a real hard-core, depressed 11:45:00 16 person, if they had been living with depression for years and 11:45:03 17 yet still, you know, were never suicidal, always worked 11:45:06 18 through every episode of depression? For the same reason 11:45:12 19 would you discount the role of depression if that were the 11:45:16 20 case? 11:45:16 21 A. I'm not even following your question. Could you restate 11:45:19 22 it? 11:45:19 23 Q. Let me try it again. You said an example I gave you, even 11:45:23 24 though we all in this room, every person in this room knows 11:45:26 25 what alcohol does to people, but you said well, I couldn't 1087 11:45:29 1 say that that's a cause because this guy may be an alcoholic 11:45:36 2 and he may thrive on alcohol, may do better on alcohol, so 11:45:40 3 I'm just flipping that for you. 11:45:42 4 And I'm saying well, what if this guy is a person who 11:45:45 5 had lived with depression for many years very successfully. 11:45:49 6 We would tend then to say well, if that's the case I bet it 11:45:52 7 wasn't the depression that made him murder his family and 11:45:55 8 take his own life? 11:45:57 9 A. You're sort of into an area I'm not an expert. 11:46:01 10 Q. Let's go on to something you are. 11:46:05 11 A. You're sort of speculating. It is hard for me to answer 11:46:07 12 the questions. I don't know what you're really -- 11:46:09 13 Q. If you can't answer it, just tell me. Let's get something 11:46:12 14 you are an expert in and that's assessment of risk. That's 11:46:16 15 your expertise, isn't it? 11:46:18 16 A. That's one thing I do, yes. 11:46:19 17 Q. What do you do if you have an agent, a drug, and it helps 11:46:25 18 some people but it hurts other people? As a epidemiologist 11:46:28 19 how do you sort the wheat from the chaff in doing an 11:46:33 20 observational study adjusted for bias or randomized clinical 11:46:37 21 trial or any other kind of trial, if that's the case; helps 11:46:42 22 some, hurts others? 11:46:43 23 A. I would do a study -- if I felt that some people were 11:46:46 24 being hurt and they were being missed or masked by people who 11:46:51 25 were being helped -- in other words, let's say -- depression 1088 11:46:56 1 and suicidology is a good example, so we'll work through it 11:47:02 2 with these examples and these are very pertinent because they 11:47:05 3 did these analyses. 11:47:07 4 Q. And let's be specific to this case. You have read 11:47:09 5 Dr. Healy's reports and his declaration, his deposition, 11:47:12 6 haven't you? 11:47:13 7 A. Yeah, not recently but I've read them. 11:47:15 8 Q. And you saw in there that he readily concedes that there's 11:47:18 9 some people, just as the Montgomery study reports -- that 11:47:23 10 there's some people who are actually helped by Paxil, that 11:47:29 11 their suicidality lowers because this drug helps? 11:47:32 12 A. Uh-huh. 11:47:33 13 Q. But he says there's some others who are hurt by it? 11:47:37 14 A. He hypothesizes -- I read that hypothesis, the question. 11:47:42 15 The good news is there's actually data, and I covered it when 11:47:45 16 I was reviewing the trials, the metaanalyses, Lopez-Ibor, 11:47:50 17 Montgomery, remember I talked about the subpopulations, the 11:47:53 18 studies where they looked at people who were free -- they 11:47:57 19 only examined the subpopulation, subsection, slice of the 11:48:07 20 trial patients who had no suicidology baseline. These people 11:48:07 21 could not be improved. They had none. They could only be 11:48:10 22 hurt. 11:48:11 23 So this subpopulation is free of suicidality at 11:48:14 24 baseline. They can only have new -- they can only be hurt 11:48:18 25 and have new suicide emergence. And both of those studies 1089 11:48:23 1 found that Paxil was statistically significantly better. 11:48:27 2 Q. In helping them? 11:48:28 3 A. No, at preventing. 11:48:31 4 Q. Preventing it? 11:48:32 5 A. What you're hypothesizing there is there's this subgroup 11:48:36 6 out there maybe who is hurt but other people get help so you 11:48:41 7 can't actually see the people getting hurt. 11:48:43 8 This showed the subgroup, the people who could not be 11:48:46 9 helped, only hurt, were actually helped by Paxil. 11:48:49 10 Q. Let's talk about that. Dr. Healy and others have said 11:48:53 11 that, "Well, we think the way the drug is hurting them is 11:48:57 12 causing akathisia," right? 11:48:59 13 A. I'm not an akathisia expert, but I'm aware he said that. 11:49:02 14 Q. That's one of the biologically plausible mechanisms that 11:49:06 15 he suggests is the way that SSRI drugs trigger violent or 11:49:12 16 suicidal behavior; you know that, don't you? 11:49:16 17 A. I know he's hypothesized that. 11:49:19 18 Q. All right. Now, you do know that in all of these clinical 11:49:22 19 studies there was no scale whatsoever -- zero, none, zilch -- 11:49:29 20 to measure treatment-emergent akathisia? You know that, 11:49:32 21 don't you? 11:49:34 22 A. I don't -- I would have to review -- let me not agree with 11:49:37 23 that because I don't know. I don't know every study, you 11:49:39 24 know, that's been done on this. 11:49:42 25 But let me say there are studies that speak to this 1090 11:49:44 1 newly emergent -- and I mentioned it -- newly emergent 11:49:49 2 agitation. I specifically referred to it when I talked about 11:49:53 3 Sheehan. There is an analysis that does look at among people 11:49:57 4 who don't have any agitation, these are people who can't be 11:50:04 5 improved, they can only be hurt by the drug. They can only 11:50:08 6 have agitation emerge. 11:50:10 7 Q. Here's my question: Did any of the studies use the Barnes 11:50:14 8 akathisia scale or any other scale specifically designed to 11:50:18 9 measure akathisia? 11:50:21 10 A. You know, I don't know. I would have to review it. I 11:50:25 11 don't know the answer to that. 11:50:26 12 Q. Are you aware that in his 1991 article on this issue 11:50:30 13 Dr. J. John Mann said now in the future we need not only to 11:50:35 14 use the Beck Suicidal Ideation Scale because it is more 11:50:39 15 refined than the HAM-D, but in addition to that we need to 11:50:42 16 use the Barnes scale or some way to measure akathisia? Are 11:50:47 17 you aware of that? 11:50:47 18 A. Let me back up because you buried a whole bunch of things 11:50:51 19 in there. The Barnes scale is a scale of -- the Beck -- this 11:50:58 20 Beck depression scale you're referring to is one way to 11:51:00 21 measure, but something my ears perked up to when you said it 11:51:04 22 is sort of the preferred way. There are other measures that 11:51:07 23 can be equally as good and useful. The Beck scale is a scale 11:51:12 24 of suicidality. 11:51:16 25 Q. All right. If Dr. Mann, who is a 1091 11:51:19 1 neuropsychopharmacologist and a suicidologist wrote in 1991 11:51:25 2 in a peer-reviewed journal article sponsored by the National 11:51:30 3 Institute of Mental Health who sponsors your research -- if 11:51:34 4 he did that and said, "Look, in the future studies we need to 11:51:37 5 use more refined instruments, specifically the Beck suicidal 11:51:41 6 scale for suicidal ideation and the Barnes scale for 11:51:44 7 akathisia" -- if he did that, would you agree with him or -- 11:51:49 8 A. I don't know what you're -- personally what you're 11:51:52 9 referring to. I don't think I've read it. 11:51:54 10 Q. Then let's move on. 11:51:56 11 Have you read the 1993 paper by Drs. Teicher and 11:52:00 12 Cole? 11:52:01 13 A. The case reports, yes? 11:52:02 14 Q. No, not the first one, not the February 1990 but the 11:52:06 15 subsequent one in 1993. 11:52:11 16 A. I may have, you know, but it slips my mind. 11:52:14 17 Q. Have you ever met either of those two guys? 11:52:16 18 A. I've heard them speak, yes. 11:52:18 19 Q. Are they both very prominent men at Harvard where you are? 11:52:25 20 A. Dr. Cole is more than -- well, yeah, they're -- they have 11:52:29 21 reputations, sure. 11:52:32 22 Q. Now, if those men wrote in 1993 that what these drugs 11:52:36 23 really do is redistribute the risk, that they make some 11:52:40 24 people better but other people worse so that when we're 11:52:43 25 looking for, you know, effects and statistically significant 1092 11:52:47 1 samples of the population, they may get masked -- if they 11:52:54 2 wrote that, and they did, would you accept their word for it? 11:52:58 3 MR. PREUSS: Objection, no foundation without the 11:53:05 4 article, Your Honor. 11:53:05 5 THE COURT: He may answer if he has an opinion. 11:53:05 6 A. That is -- again, what you're describing are questions and 11:53:09 7 the good news is there's actually answers. As I described, 11:53:13 8 those subanalyses where the people -- you know, in 11:53:17 9 Lopez-Ibor, Montgomery, they were free -- this subpopulation 11:53:24 10 could not have been improved. There was no suicidality. 11:53:29 11 There's no masking going on. They could only be hurt. 11:53:33 12 There's a statistically significant increased newly 11:53:37 13 emergent suicide in the Paxil users compared to the placebo 11:53:41 14 users. Unlike the questions that may have gotten raised -- I 11:53:46 15 don't know what you're referring to in terms of Drs. Cole and 11:53:50 16 Teicher. They may have been raising questions. 11:53:53 17 But today there's actually answers. Those 11:53:55 18 metaanalyses I was referring to actually answered that 11:53:59 19 question and there isn't some people being hurt masked by 11:54:03 20 this overall improvement in suicidality in the entire sort of 11:54:07 21 population. 11:54:08 22 So you actually have very strong evidence that that 11:54:11 23 question, that hypothesis is not correct. 11:54:15 24 Q. (BY MR. VICKERY) Evidence from metaanalyses of clinical 11:54:17 25 trials that were not designed to study that issue in the 1093 11:54:21 1 first place, isn't it, sir? 11:54:23 2 A. Well, they're designed to study it because they contained 11:54:26 3 measures of suicidality. 11:54:28 4 Q. So again you find yourself in disagreement with the 11:54:30 5 testimony of Dr. Blumhardt? 11:54:34 6 A. I never read the testimony. I don't know what you're 11:54:36 7 referring to. 11:54:37 8 Q. All right. Let's talk about the Donovan study, and I have 11:54:55 9 some specific questions to which I would very much appreciate 11:54:59 10 very specific answers. 11:55:00 11 Was it partially funded by SmithKline Beecham? 11:55:03 12 A. That I have no idea. 11:55:04 13 Q. Was the -- were the results statistically significant? 11:55:10 14 A. What results are you referring to? 11:55:11 15 Q. The data that's reflected in the tables in the article? 11:55:16 16 A. Some may have been and some may have not been. You have 11:55:19 17 to tell me what you're referring to. 11:55:21 18 Q. I'm talking about the disparity in relative risks of 11:55:26 19 deliberate self-harm. Were those statistically significant 11:55:30 20 results? 11:55:31 21 A. There's no way to answer that because -- 11:55:33 22 Q. You have the paper with you, don't you? 11:55:35 23 A. You want me to open it? 11:55:36 24 Q. Sure, consult it and tell us whether or not the results 11:55:39 25 in, I believe it is, Table 3 about deliberate self-harm -- 1094 11:55:59 1 A. There's a whole bunch of results. Which ones are you 11:56:03 2 referring to? 11:56:04 3 Q. Talking about the relative risk of deliberate self-harm. 11:56:07 4 A. Right. 11:56:07 5 Q. Are they statistically significant results? 11:56:10 6 A. You need to say the relative risk of what? 11:56:13 7 Q. Paxil. 11:56:13 8 A. What result are you asking, because there's many results 11:56:16 9 down here? 11:56:17 10 Q. I'm talking about -- tell me in the relative risk listing 11:56:21 11 in Table 3 what is the relative risk of deliberate 11:56:24 12 self-harm for people on paroxetine, which is Paxil. 11:56:29 13 A. There's a biased association here whereby paroxetine users 11:56:34 14 seem to be -- 11:56:35 15 Q. Excuse me, Doctor. I asked you what the relative risk 11:56:38 16 was. 11:56:39 17 A. The relative risk says 4. As I described earlier it is 11:56:42 18 biased by that preferential prescribing and -- 11:56:46 19 Q. We'll talk about that in a minute, I promise you. 11:56:49 20 Is it a statistically significant result? 11:56:52 21 A. You're referring to this comparison between paroxetine and 11:56:56 22 its amitriptyline? 11:56:59 23 Q. Yes, sir. Is it statistically significant? 11:57:02 24 A. This biased association is -- it is biased but it is 11:57:07 25 statistically significant. 1095 11:57:08 1 Q. All right. Thank you. Now what is the P value, right 11:57:13 2 there on the front page of the article? 11:57:19 3 A. The front page of the article or the table? 11:57:21 4 Q. The front page of the article. That's where P values are 11:57:26 5 listed in scientific literature, isn't it, right there in the 11:57:28 6 abstract? 11:57:29 7 A. No, the abstract is an abstract. You don't give the guts 11:57:33 8 in the details. You usually have to look at the table for 11:57:37 9 things like P values. You look at the table. Let me just 11:57:41 10 look here. 11:57:42 11 Q. Let me see if I can help you. May I? Right there, would 11:57:56 12 you read results on the first page of the article, just read 11:58:01 13 the results? 11:58:04 14 A. "Significantly more deliberate self-harm events occur 11:58:08 15 during the prescription of an SSRI than a tricyclic. P less 11:58:13 16 than .001." 11:58:15 17 Q. Okay. Now, I want you to explain to the jury precisely 11:58:18 18 what that means. 11:58:39 19 Donovan, you've told us it is statistically 11:58:47 20 significant, right? 11:58:49 21 A. It is a significant biased association. It's 11:58:49 22 significantly -- am I having to agree to what is being 11:58:53 23 written here? 11:58:54 24 Q. Is it statistically significant? We'll talk about bias in 11:58:58 25 a minute. Just is it statistically significant? 1096 11:59:01 1 A. It is statistically significant bias and you can't 11:59:09 2 separate these two. 11:59:09 3 Q. What's the P value? You just read it. 11:59:09 4 A. These concepts are completely inseparable. If you suspect 11:59:12 5 the results are biased, to some extent whether statistically 11:59:16 6 significant or not is irrelevant, but it is statistically 11:59:22 7 significantly biased association. 11:59:24 8 Q. What is the P value, please, sir? 11:59:25 9 A. It is less than .001. 11:59:37 10 Q. Now, what is the usual norm for scientific literature in 11:59:41 11 peer-reviewed journals in terms of a P value? 11:59:44 12 A. The convention is usually for P values .05. You want it 11:59:49 13 to be less than .05. 12:00:02 14 Q. Now, in the normal scientific literature if a P value is 12:00:06 15 .05, what are the chances that the results were -- what's the 12:00:12 16 likelihood that the results occur by virtue of chance alone? 12:00:16 17 A. Repeat that so I know which way you're -- 12:00:18 18 Q. In the normal scientific convention that's .05, what is 12:00:24 19 the likelihood that chance accounts for the results? 12:00:28 20 A. If it is exactly .05 you can sort of -- stated simply, 12:00:37 21 think of it as there's a 5 percent chance that it occurred -- 12:00:40 22 there's a 5 percent likelihood that it occurred by chance. 12:00:44 23 Q. 5 chances out of 100 that chance alone could lead to this 12:00:48 24 result, right? 12:00:49 25 A. Not to get too technical, but what it literally means is 1097 12:00:52 1 if you conducted the trial 10 times, let's say you repeated 12:00:56 2 the experiment 100 times, you would get this result 95 times. 12:01:02 3 Q. All right. Now, is a P value of .001 a more precise 12:01:12 4 finding? 12:01:13 5 A. It depends. It depends first how you calculate it. If 12:01:16 6 all things are kept the same, it is -- .001 can be more 12:01:23 7 precise. 12:01:25 8 Q. Doesn't .O01, Doctor, mean that there's one in a thousand 12:01:28 9 chances that chance itself, just pure this is the way things 12:01:35 10 happen, accounts for the results? 12:01:37 11 A. In a simple way that explanation would work. 12:01:42 12 Q. Okay. Would you look in the acknowledgments section, 12:01:51 13 since you have the article out, and tell us whether or not 12:01:53 14 SmithKline Beecham provided funding for the Donovan study? 12:02:03 15 A. Can you point out to me where? It sounds like you know 12:02:06 16 where it is. 12:02:07 17 Q. Yes, sir. You see it in the acknowledgments right at the 12:02:10 18 very end? 12:02:14 19 A. Eli Lilly, Eli Lilly, Knoll and SmithKline Beecham all 12:02:19 20 provided funding for this. 12:02:22 21 Q. Now, do you have any doubt in your mind that if Paxil had 12:02:26 22 turned out to be the index drug and if it was the very best 12:02:31 23 drug in terms of deliberate self-harm -- do you have any 12:02:34 24 doubt that SmithKline Beecham would be waving that in front 12:02:39 25 of every doctor in the world saying, "Look how much better 1098 12:02:42 1 our drug is in terms of deliberate self-harm"? 12:02:45 2 A. I have no idea what that question -- 12:02:47 3 MR. PREUSS: Objection, argumentative. 12:02:48 4 THE COURT: Just a minute. What's your objection? 12:02:51 5 MR. PREUSS: Argumentative. 12:02:52 6 MR. VICKERY: It is cross-examination. I thought it 12:02:53 7 was a fair question, Judge. 12:02:54 8 THE COURT: It seemed a little argumentative. Why 12:02:56 9 don't you rephrase your question? 12:03:01 10 Q. (BY MR. VICKERY) Doctor, if it is true, as Dr. Yamada 12:03:04 11 suggested in his testimony, that this was probably funded by 12:03:07 12 the marketing people at SmithKline, don't you know that if 12:03:13 13 the results came out different that SmithKline would have 12:03:15 14 been waving that around in front of the whole medical 12:03:18 15 community and the whole wide world? 12:03:21 16 A. No, I think that -- this is just speculation. I don't 12:03:24 17 know any of the people you just -- or documents. I disagree 12:03:30 18 with that. I actually would -- because this is a biased 12:03:33 19 study and because the author has specifically said, remember, 12:03:37 20 as we read those quotes, there's loading of the dice, this is 12:03:41 21 a biased study and don't use it to, you know, conclude 12:03:46 22 whether, you know, a drug causes suicide, you can't use -- 12:03:50 23 remember those quotes, you can't use this to determine 12:03:53 24 whether, you know, these antidepressants are causing suicide. 12:03:58 25 Because of that warning, that sort of undermines -- I 1099 12:04:03 1 imagine the drug company would say this study is biased. The 12:04:06 2 authors themselves are saying this information isn't useful. 12:04:11 3 Doesn't matter whether it is statistically significant. 12:04:14 4 To use the airplane analogy, you have wings, but if 12:04:18 5 it is biased you don't have a motor and you can't fly. If it 12:04:23 6 came out well, let's say for some reason that Paxil was 12:04:26 7 wonderfully protective against deliberate self-harm, the 12:04:30 8 authors themselves are saying you can't use this study one 12:04:34 9 way or the other to determine if antidepressants cause 12:04:36 10 suicide because of this prescribing bias. 12:04:38 11 Q. Is this a peer-reviewed journal? 12:04:42 12 A. Yes, the British Journal of Psychiatry. 12:04:45 13 Q. Why on earth is the British Journal of Psychiatry, a 12:04:54 14 peer-reviewed journal, publishing this paper if it is just 12:04:54 15 completely useless? 12:04:54 16 A. I didn't say it is useless. I said it can be used to 12:04:57 17 raise questions, but because of the bias it can't be used as 12:05:00 18 proof. It can't be used as sort of randomized control 12:05:05 19 clinical trial data that's not biased. It can't be used like 12:05:10 20 that. 12:05:11 21 I didn't say it was useless. I was careful because, 12:05:14 22 you know, Donovan was clearly responsible in pointing out the 12:05:17 23 bias, the problem in the study; explicitly tells you Paxil, 12:05:22 24 SSRIs are preferentially given to people, biasedly prescribed 12:05:27 25 to people at higher risk because they're safer in overdose. 1100 12:05:31 1 Donovan is very clear on that and saying it is 12:05:34 2 impossible to determine from this study whether 12:05:36 3 antidepressants cause suicidality or not. 12:05:39 4 Q. Of what use? 12:05:40 5 A. Deliberate self-harm. It is useful -- I'm not trying to 12:05:45 6 knock it because it is useful for raising questions. That's 12:05:47 7 why it is in that -- my right-hand corner. It is useful for 12:05:53 8 raising questions. 12:05:53 9 Q. Is it useful for alerting the profession to a potential 12:05:56 10 danger? 12:05:57 11 A. No, by alerting the -- no, that's not -- it is actually -- 12:06:02 12 if this warning weren't in there, if this clear, clear 12:06:06 13 warning to the reader these are biased results, they cannot 12:06:12 14 be used to establish that antidepressants, whatever variety 12:06:17 15 are being used, are causing suicide -- if that warning wasn't 12:06:20 16 there, if Donovan wasn't responsible about that, this could 12:06:23 17 be then one of those studies I was telling you about where if 12:06:27 18 you make a wrong claim about a drug you can scare people who 12:06:32 19 take the drug, you can scare people away from ever using 12:06:35 20 treatments that they need. You can delay people seeking 12:06:38 21 treatment. These are all problems that would occur if you 12:06:42 22 aren't responsible and point out, as Donovan did -- Donovan 12:06:45 23 said, literally, I like my -- 12:06:48 24 Q. We've all read what Donovan said, Doctor. We know what he 12:06:52 25 said. 1101 12:06:53 1 MR. VICKERY: Your Honor, this is a logical break 12:06:54 2 point if you want. 12:06:55 3 THE COURT: Good. We will take our lunch recess. We 12:06:58 4 will stand in recess until 1:20 p.m. 12:07:03 5 (Trial proceedings recessed 12:05 p.m. 12:07:08 6 and reconvened 1:25 p.m., May 29, 2001.) 13:27:35 7 THE COURT: Once again, Dr. Wang, I need to remind 13:27:37 8 you you're still under oath. 13:27:40 9 THE WITNESS: Yes, Your Honor. 13:27:42 10 MR. VICKERY: May I proceed? Thank you, Your Honor. 13:27:44 11 Q. (BY MR. VICKERY) Dr. Wang, have you ever had occasion to 13:27:47 12 prescribe any of the SSRI drugs for patients? 13:27:50 13 A. Yes, I did prescribe -- I was treating patients up until 13:27:56 14 sometime in 1998, but I haven't practiced psychiatry since 13:28:00 15 1998. 13:28:01 16 Q. Okay. And did you ever have any -- I mean, how extensive 13:28:05 17 was your prescribing of these drugs? 13:28:08 18 A. Well, I began -- I prescribed psychiatric medications as a 13:28:15 19 practicing psychiatrist throughout my psychiatric residency 13:28:19 20 which was four years, and then thereafter until 1998, so that 13:28:25 21 would be a total of about nine years. 13:28:29 22 Q. And on roughly how many patients would you estimate that 13:28:33 23 you have prescribed one of the SSRI class of drugs? 13:28:37 24 A. Well, after residency the clinical practice that I did 13:28:41 25 have was exclusively psychopharmacologic practice; in other 1102 13:28:47 1 words, I would prescribe medications to patients as opposed 13:28:50 2 to do psychotherapy, and so I must have been responsible for 13:28:55 3 the care of say hundreds of patients and a fair number of 13:29:01 4 them were treated with SSRIs. 13:29:03 5 Q. Did you ever have occasion to titrate the dose so you 13:29:08 6 start them off on a lower dose than the recommended? 13:29:11 7 A. Yeah, often, especially if someone were elderly. Depends 13:29:15 8 on the medication you're using, but let's say if you're using 13:29:19 9 a tricyclic antidepressant, this one type of 13:29:23 10 antidepressant -- 13:29:24 11 Q. Let's stick with the SSRIs, if we may. Did you ever have 13:29:27 12 occasion to titrate the dose of an SSRI? 13:29:30 13 A. If you mean start at one dose and raise it, yeah, I've 13:29:33 14 done that. 13:29:34 15 Q. Why would you do that? 13:29:36 16 A. If the medication doesn't seem to be helping very much, 13:29:40 17 like let's say one dose, you're not getting an effect but 13:29:44 18 maybe you're getting a little bit of benefit from one dose, 13:29:47 19 you might, you know, raise it to see if you get even more 13:29:50 20 benefit. That would be one reason to titrate -- increase the 13:29:54 21 dose or titrate the dose. 13:29:56 22 Q. Did you ever give one of these drugs to anxious patients 13:29:59 23 who had an anxious depression or some kind of diagnosis of 13:30:06 24 anxiety syndrome? 13:30:07 25 A. When I was practicing is the time when these medications 1103 13:30:16 1 have sort of -- let me back up and talk about anxiety 13:30:19 2 disorders. 13:30:21 3 Q. I just want to know if you've prescribed it for someone 13:30:24 4 who either had a diagnosis of an anxiety disorder or had an 13:30:30 5 anxious depression. 13:30:31 6 A. I must have, yes. 13:30:32 7 Q. Did you titrate the dose for those patients? 13:30:35 8 A. You mean did I ever increase the dose? 13:30:37 9 Q. No, did you say, "We're going to start you off on half a 13:30:43 10 capsule or pill for a few days and then go up to the dose I'm 13:30:47 11 prescribing?" 13:30:48 12 A. Perhaps on an individual basis maybe. It depends on the 13:30:52 13 circumstances. You have to take into account -- it has been 13:30:56 14 a while since I prescribed. You want to be very sensitive to 13:30:59 15 the individual. So let's say they're elderly or have some 13:31:02 16 medical condition that might warrant you starting low. You 13:31:06 17 might start even at a lower dose just to -- like let's say 13:31:10 18 they have liver disease. That might be a reason why, or 13:31:14 19 kidney disease, you maybe want to start at a lower dose. 13:31:18 20 Q. Did you cover them with benzodiazepines when they were 13:31:20 21 first starting? 13:31:21 22 A. On a routine basis? 13:31:23 23 Q. Yes. 13:31:24 24 A. Not on a routine basis, no. 13:31:27 25 Q. Did you ever do that? 1104 13:31:27 1 A. I prescribed as cover if they had certain symptoms -- 13:31:32 2 Q. Let me tell you exactly what I mean. Did you give 13:31:34 3 concomitant benzodiazepines? At the same time did you say, 13:31:38 4 "We're going to start you on Paxil and put you on some 13:31:45 5 benzodiazepines like Ativan to go along with it"? Did you 13:31:50 6 ever do that? 13:31:50 7 A. I must have prescribed those medications to at least one 13:31:53 8 patient, that's true. 13:31:55 9 Q. One of the things you said in reciting your qualifications 13:31:58 10 is most of your research is funded by the National Institute 13:32:02 11 of Mental Health, NIMH? 13:32:04 12 A. Yes, that's correct. 13:32:05 13 Q. You said something about you having a role in setting 13:32:07 14 their agenda or helping them set their agenda? 13:32:11 15 A. No, I've been asked to serve as a reviewer of grant 13:32:15 16 proposals, and so what I've been asked to do is review 13:32:18 17 people's proposals for research funding, and I've been asked 13:32:24 18 to evaluate the merits of research proposals and essentially 13:32:30 19 sort of grade them, which of them are likely to yield good 13:32:34 20 research results, which ones are likely to be done well. 13:32:41 21 Those are the things I've been asked to grade of the research 13:32:43 22 proposals. 13:32:44 23 Q. Have you ever seen any study that was supported by a grant 13:32:47 24 from the NIMH on the issue of antidepressant drugs like Paxil 13:32:52 25 and suicide? 1105 13:32:55 1 A. Supported by the NIMH. 13:32:59 2 Q. Yes, sir, a study supported by NIMH grant on that issue? 13:33:05 3 A. It is hard for me -- I don't know sort of the funding 13:33:07 4 sources of every study. As you probably saw earlier, I 13:33:11 5 probably don't even know the funding sources of most of the 13:33:14 6 studies I've been reading. I have to look real carefully. I 13:33:18 7 can't really answer that question. I don't know. 13:33:19 8 Q. I'm going to show you one in a minute, but before we get 13:33:22 9 to that tell me this. As far as you know, NIMH has not 13:33:32 10 funded any sort of prospective study regarding this issue, 13:33:35 11 have they? 13:33:37 12 A. You know, actually now that I mention it -- I actually now 13:33:41 13 recall, there is a study, it is -- it is not of Paxil, it is 13:33:46 14 of fluoxetine, Prozac. There is a prospective cohort study 13:33:52 15 funded by NIMH, the NIMH collaborative study. Let me just 13:33:59 16 think. I'm sort of having to refresh my memory. It is Leon. 13:34:05 17 Leon is the first author. 13:34:07 18 Q. We may take a look at that study. I'm familiar with it. 13:34:11 19 A. Sure. 13:34:11 20 Q. The Mann and Kapur study that we mentioned, did you find 13:34:15 21 out over the lunch hour it was funded by NIMH? 13:34:18 22 A. The Mann and Kapur article? 13:34:20 23 Q. Yeah, the 1991 Mann and Kapur article. 13:34:23 24 A. I didn't look at it. I still know what it is. I didn't 13:34:26 25 look at it over the lunch break. 1106 13:34:28 1 Q. I want to show you another. This is a 1993 article by 13:34:37 2 those same guys that started all of this in 1990. 13:34:41 3 MR. VICKERY: For the record, it was identified as 13:34:43 4 Plaintiffs' Exhibit 48 for identification purposes. It is an 13:34:49 5 803(18) Exhibit. 13:34:53 6 Q. (BY MR. VICKERY) This is by Dr. Teicher and Nurse Glod 13:34:57 7 and Dr. Jonathan Cole. 13:35:00 8 Do you have privileges at McClain Hospital in 13:35:02 9 Belmont, Massachusetts? 13:35:04 10 A. No, I don't. 13:35:05 11 Q. What is the relationship of McClain Hospital to Harvard 13:35:08 12 University Medical School? 13:35:09 13 A. It is like one of the teaching hospitals like the 13:35:12 14 hospitals, for example, that I have appointments at. 13:35:15 15 Q. What is an abstract on a scientific article? 13:35:17 16 A. An abstract is sort of a summary. It is a brief maybe one 13:35:21 17 paragraph or couple paragraph description. 13:35:48 18 Q. Let's look at the abstract for this article, if we can. 13:35:51 19 Are you able to read that on your screen? You have that in 13:35:54 20 front of you. It may be easier to read. 13:35:56 21 A. Yes, it is. 13:35:57 22 Q. Would you read for us that first paragraph of this 13:36:00 23 summary? 13:36:01 24 A. "There is evidence which suggests that antidepressants in 13:36:05 25 rare instances induce or exacerbate suicidal tendencies. 1107 13:36:09 1 Nine clinical mechanisms have been proposed through which 13:36:12 2 this may occur. These are energizing depressed patients to 13:36:21 3 act on preexisting suicidal ideation, paradoxically worsening 13:36:29 4 depression, inducing akathisia with associated 13:36:31 5 self-destructive or aggressive impulses." 13:36:35 6 Q. You recall when I was talking about akathisia this 13:36:37 7 morning? 13:36:37 8 A. Yes. 13:36:38 9 Q. And one of the articles in your folder is the Lane 13:36:40 10 article? 13:36:41 11 A. The Lane review. As you were flashing through, this looks 13:36:45 12 like a review, not a study. 13:36:47 13 Q. I will show you the end where it was funded by the NIMH, 13:36:51 14 if that's your concern. 13:36:52 15 A. No, I was saying this was a review. 13:36:55 16 Q. That's what it is. You have a Lane article in your folder 13:36:57 17 there? 13:36:58 18 A. I may. 13:36:58 19 Q. I saw it this morning. Would you find it, please, sir? 13:37:01 20 A. Sure. 13:37:13 21 Q. What's the title of that article? 13:37:16 22 A. Extrapyramidal side effects and akathisia, implications 13:37:18 23 for treatment. 13:37:19 24 Q. Would you read, please, the first sentence that Dr. Lane 13:37:22 25 wrote in his abstract or summary of his article? 1108 13:37:26 1 A. "The selective serotonin reuptake inhibitors may 13:37:30 2 occasionally induce extrapyramidal side effects, or 13:37:38 3 akathisia." 13:37:39 4 Q. Dr. Lane works for one of the pharmaceutical companies 13:37:43 5 that makes akathisia -- 13:37:47 6 A. If you say so. 13:37:48 7 Q. For him to say this drug or class of drugs may 13:37:51 8 occasionally induce akathisia is for him to admit that 13:37:54 9 there's a dangerous condition that's caused by his company's 13:37:57 10 drug, isn't it? 13:37:59 11 A. I don't know what he's -- what he believes or doesn't 13:38:01 12 believe. Let me just point out, these are case reports that 13:38:04 13 he's -- you know, when I read this I was actually looking to 13:38:08 14 see whether there were any studies of the variety that -- 13:38:12 15 what he does, he covers case reports of, again, patients that 13:38:24 16 were taking SSRIs who also developed some of these what are 13:38:24 17 called EPS, extrapyramidal symptoms. 13:38:27 18 Q. When you say case reports, we're talking about things that 13:38:30 19 were published in the peer-reviewed scientific literature, 13:38:33 20 aren't we? 13:38:33 21 A. Yes, but they're case reports. A physician has seen one 13:38:37 22 of their patients -- like the Teicher articles. They're out 13:38:42 23 in practice. They observe that a patient on a particular 13:38:47 24 drug also happens to get a condition, in this case 13:38:53 25 extrapyramidal condition, akathisia, and they write it up and 1109 13:38:59 1 report it and submit it to peer review. So there's blind 13:39:03 2 reviewers that judge the quality of the case report and 13:39:06 3 suggest some additions or corrections. 13:39:08 4 Q. How many patients was the original Teicher and Cole 13:39:12 5 article in February 1990 reporting on? 13:39:15 6 A. Six patients. 13:39:18 7 Q. Reading on, in addition to inducing akathisia and 13:39:23 8 associated self-destructive or aggressive impulses, they 13:39:28 9 suggest inducing panic attacks, switching panics into manic 13:39:33 10 or mixed states, producing severe insomnia or interfering 13:39:38 11 with sleep architecture, inducing an organic obsessional 13:39:42 12 state and even a couple others after that. 13:39:45 13 I wanted to ask you this: You were very critical of 13:39:51 14 Dr. Healy's decision to try to explain a way in which 13:40:01 15 biologically the SSRI drugs could trigger suicide or 13:40:05 16 violence, weren't you? 13:40:06 17 A. Not critical. Let me -- 13:40:10 18 Q. Didn't you call it premature? 13:40:12 19 A. Premature, because when you start asking is there a 13:40:16 20 biological mechanism that can explain an association that you 13:40:20 21 see between -- again, an association is this mathematical 13:40:26 22 relationship I was trying to explain to you. I hope I did a 13:40:29 23 good job earlier. But you look for there being a 13:40:32 24 mathematical relationship between using a drug and getting an 13:40:35 25 adverse event in, ideally, a randomized controlled trial. 1110 13:40:41 1 And the first -- first you have to see that 13:40:43 2 mathematical relationship, that association. 13:40:45 3 Q. Dr. Wang, please excuse me for interrupting you, but what 13:40:49 4 question are you answering? 13:40:52 5 A. You're asking me about biological plausibility and -- 13:40:56 6 Q. No, sir, all I was asking you is whether you were critical 13:40:58 7 of Dr. Healy for, in your words, prematurely trying to come 13:41:04 8 up with a biological explanation. 13:41:06 9 THE COURT: Let's let the witness answer the 13:41:08 10 question. Go ahead. 13:41:09 11 A. I'll try to speak faster, but -- 13:41:12 12 Q. (BY MR. VICKERY) Don't do that. Our reporter will get 13:41:15 13 mad. 13:41:16 14 A. Sorry. It was premature because he was trying to explain 13:41:19 15 a biological mechanism, propose a biological mechanism before 13:41:27 16 any statistical significant association was found. Remember 13:41:32 17 those things you put up, the Bradford Hill criteria? 13:41:37 18 Q. Yes. 13:41:38 19 A. Those criteria, again, Bradford Hill in this is sort of -- 13:41:42 20 in his sort of valedictory address, here's the way if you see 13:41:47 21 an association, if you have a statistically significant 13:41:49 22 association, here are some ways that might help you decide is 13:41:53 23 this really a causal relationship, does the drug really cause 13:41:57 24 the adverse effect. 13:41:59 25 These are criteria. It is like a checklist you can 1111 13:42:02 1 go through and say this applies, this doesn't apply. 13:42:06 2 One of those criteria is what you were referring 13:42:08 3 to -- 13:42:09 4 Q. Biologic plausibility? 13:42:12 5 A. Biologic plausibility. The reason it is premature is you 13:42:16 6 still first -- as Bradford Hill says, this only comes into 13:42:19 7 play, biological plausibility, if you first have a 13:42:23 8 statistically significant association found in a controlled 13:42:25 9 study. If you don't do that, if you don't have this 13:42:29 10 mathematical relationship saying this drug is associated with 13:42:32 11 this adverse outcome, biological plausibility doesn't even 13:42:37 12 come into play. It is something you worry about after you 13:42:40 13 see this mathematical relationship between taking a drug and 13:42:44 14 having an adverse outcome. That's why I said he was 13:42:48 15 premature. 13:42:49 16 Q. Are you equally critical of Dr. Mann who in 1991 and again 13:42:55 17 in 1992 came up with a biologically plausible explanation for 13:43:00 18 how these drugs caused this kind of adverse effect? Was he 13:43:05 19 premature, too? 13:43:07 20 A. No, not premature because he wasn't trying to -- I don't 13:43:11 21 know what you're referring to. I am assuming it might be 13:43:14 22 that ACNP paper. 13:43:16 23 Q. And then the 1991 article. In both he came up with 13:43:20 24 potential biological explanation and I want to know, are you 13:43:24 25 critical of him for doing that? 1112 13:43:26 1 A. No, because he's saying -- coming up with biologically 13:43:30 2 plausible mechanisms, there's nothing wrong with it. It is 13:43:38 3 actually a good thing. You're thinking -- you're thinking is 13:43:38 4 there a mechanism, some -- something about biology -- our 13:43:42 5 biology or other sciences which explains why this drug could 13:43:46 6 cause that? It is a good, responsible thing to be thinking 13:43:49 7 about biological mechanisms, but it is premature to say just 13:43:53 8 because you came up with a hypothesized mechanism that that's 13:43:57 9 a cause, that that actually establishes that this drug really 13:44:01 10 does cause the adverse event. That's the problem. It is not 13:44:04 11 the making the biologically plausible sort of thinking. 13:44:09 12 That's actually healthy. It is a good thing. 13:44:11 13 Q. You're not critical of your Harvard colleagues Teicher and 13:44:14 14 Cole for coming up with nine different biologically plausible 13:44:18 15 ways in which SSRI drugs and other antidepressants can 13:44:23 16 trigger violence or suicide, are you? 13:44:26 17 A. Coming up with biological mechanisms is a good thing and a 13:44:29 18 good thing to do, but it doesn't establish that a drug causes 13:44:33 19 an adverse event. 13:44:35 20 Q. I'm sorry. Were you finished? 13:44:37 21 A. That's the -- that's what I meant by prematurity, just 13:44:41 22 getting back to your other question. 13:44:42 23 Q. Let's look, if we may, at their conclusion. And I'm 13:44:49 24 horrible at this. 13:44:51 25 THE COURT: What are we referring to here? 1113 13:44:53 1 MR. VICKERY: This is the 1993 Teicher and Cole 13:44:56 2 article, marked for identification as Plaintiff's Exhibit 48, 13:44:58 3 Your Honor. 13:44:59 4 Q. (BY MR. VICKERY) They say, "Although clinically effective 13:45:03 5 antidepressant drugs have been available for more than 30 13:45:05 6 years, the relationship between these medications and suicide 13:45:09 7 has received relatively little attention and most of this 13:45:12 8 interest has occurred in the last few years." 13:45:15 9 You know that to be true from your own review of the 13:45:18 10 scientific literature, don't you? 13:45:20 11 A. Yeah. This wasn't the question that people -- people 13:45:24 12 didn't make hypotheses. There weren't a lot of questions 13:45:27 13 about antidepressants causing suicide prior to the last 13:45:31 14 decade. It only -- the question started arising mainly 13:45:37 15 through, actually, Teicher's case reports. That's where 13:45:40 16 people started asking the question. Here's some case reports 13:45:43 17 in which these patients of Dr. Teicher at McClain were on the 13:45:51 18 antidepressant Prozac and developed what looked like suicidal 13:45:56 19 thoughts. 13:45:56 20 That generated the question and that then spurred the 13:45:59 21 studies which came out throughout the '90s. 13:46:02 22 Q. We're looking at an article by the same men then three 13:46:05 23 years later, right, 1993. Let's read together, if we may. 13:46:10 24 "We're particularly concerned with the possibility that 13:46:13 25 antidepressant drugs may redistribute suicidal risk, 1114 13:46:18 1 diminishing it in some patients who respond very favorably to 13:46:21 2 the medication while possibly enhancing it in other patients 13:46:24 3 who respond more poorly. Very sophisticated studies will 13:46:29 4 need to be conducted to ascertain whether this is true if on 13:46:33 5 balance the antidepressant produces an overall incidence rate 13:46:38 6 similar to placebo." 13:46:40 7 Now, to do a very sophisticated study of that issue 13:46:45 8 would require someone like you to design and conduct the 13:46:50 9 study, wouldn't it? 13:46:52 10 A. Well, that's flattering of you, but someone would have to 13:46:56 11 give it some thought, yeah. 13:47:02 12 Q. I assume over the lunch hour you did not look at the study 13:47:06 13 drafted by Dr. Beasley over at Lilly to see the thought that 13:47:10 14 he had given to this issue. Am I correct, did you read the 13:47:14 15 Beasley protocol over the lunch hour? 13:47:17 16 A. There's a Beasley study. 13:47:19 17 Q. I'm not talking about -- excuse me for stepping on your 13:47:22 18 words. I'm not talking about the Beasley metaanalysis. I'm 13:47:26 19 talking about a protocol drafted by Lilly and submitted to 13:47:29 20 the FDA in the spring of '91. I want to know whether you 13:47:32 21 read that over the lunch hour. 13:47:33 22 A. No, I have no idea what that is. 13:47:35 23 Q. Let's look together if we may at the final sentence of the 13:47:42 24 report. I will have to do the paper here. Would you just 13:47:51 25 read that last sentence? I will freeze it and we'll go over 1115 13:47:54 1 to the second page. It is going to finish on that. 13:47:57 2 A. "We believe that it is time to recognize that suicide is 13:47:59 3 not merely a metaphysical construct but a mental or 13:48:03 4 behavioral state with" -- 13:48:06 5 Q. Did you get to the end? 13:48:08 6 A. I missed the last couple words. 13:48:10 7 Q. -- "mental or behavioral state with firm roots in our 13:48:14 8 neurochemistry which may be affected for better or for worse 13:48:18 9 by pharmacological agents." And you see where this was 13:48:22 10 supported by an NIMH grant? 13:48:24 11 A. Yes, that's correct. 13:48:30 12 Q. Does that lend some authority or credence to it in your 13:48:38 13 mind, Doctor, if a study is supported by the NIMH as opposed 13:48:38 14 to something funded by industry who may have their own 13:48:41 15 agenda? 13:48:43 16 A. This is review article. NIMH gives grants to individuals, 13:48:50 17 scientists such as myself, and if you do an actual study, you 13:48:55 18 know, they give you the money to actually do studies. But if 13:49:00 19 you write a review article in which you review the literature 13:49:03 20 or maybe come up with biologically plausible mechanisms, even 13:49:08 21 though that's not a study, if you received funding from the 13:49:12 22 NIMH, they require that you put that down. They want you to 13:49:15 23 give them credit. Even though they funded you for a study, 13:49:19 24 which this isn't, if you write a review or, you know, a 13:49:22 25 theory piece, you still have to tell the world that NIMH gave 1116 13:49:26 1 you some money for a research project which is what I'm 13:49:31 2 presuming they're doing. 13:49:33 3 Q. My only question was whether that causes you when 13:49:36 4 something is funded by NIMH as opposed to someone in industry 13:49:39 5 to give whatever it is, whether a review article or study, a 13:49:43 6 little bit higher level of credence than you would to 13:49:46 7 something funded by industry? 13:49:48 8 A. No, not at all. I think that actually would be very wrong 13:49:51 9 to do because you really want to judge the -- you want to 13:49:56 10 judge proposals for research grants, you want to judge work, 13:49:59 11 you know, written papers, and you want to judge, you know, 13:50:02 12 people's research on their merits. 13:50:05 13 Just because someone got drug funding -- drug company 13:50:09 14 funding or someone got NIMH funding, you know, that's not -- 13:50:15 15 that shouldn't influence your critical, you know, evaluation 13:50:19 16 of the work itself. 13:50:20 17 Q. So when you were recounting your qualifications, you were 13:50:24 18 not trying to suggest to us that because your research is 13:50:28 19 funded by the NIMH that that gives it greater authority or 13:50:31 20 credibility, is that true? 13:50:34 21 A. That's -- the reality -- no, the reality is that's where 13:50:37 22 my funding comes from. The question to me was where does 13:50:40 23 your funding come from, and it comes from NIMH. 13:50:44 24 Q. Just a few follow-up things and I think we're done. 13:50:47 25 You said you published about 40 articles and in 1117 13:50:50 1 looking -- 13:50:51 2 A. Scientific literature, peer-reviewed literature. 13:50:56 3 Q. In looking through them I do not see anything except one 13:51:00 4 abstract that relates to the SSRI drugs. Did I overlook 13:51:08 5 something or have you published anything anywhere in the 13:51:11 6 scientific literature about SSRI drugs other than the one 13:51:15 7 abstract about whether black women get more or less of it 13:51:19 8 than anyone else? 13:51:20 9 A. A lot of the studies, the titles say antidepressants, you 13:51:24 10 know. You probably -- I could tell you sort of some studies 13:51:28 11 that involved looking at antidepressants. In the titles 13:51:31 12 themselves they may not necessarily specifically spell out 13:51:35 13 every class of antidepressant that I studied but many of my 13:51:41 14 studies involve SSRIs. 13:51:43 15 Q. None of them involved the issue of violence and suicide, 13:51:46 16 though, do they? 13:51:48 17 A. You're asking if I -- 13:51:50 18 Q. Your published studies, do any of them address SSRI drugs, 13:51:53 19 violence and suicide? 13:51:54 20 A. You mean that actual question, do SSRIs cause violence or 13:51:59 21 suicide? No, I haven't published any studies on that 13:52:02 22 question. 13:52:03 23 Q. And the study that you did do, the abstract that you did 13:52:08 24 was on whether black women get more or less SSRIs. Tell us, 13:52:15 25 do they? 1118 13:52:16 1 A. They actually -- the results of that abstract, which it is 13:52:20 2 currently being submitted. It is under review for 13:52:22 3 publication. The African-American women are less likely to 13:52:30 4 receive an SSRI. So let me back up and tell you -- you want 13:52:35 5 me to tell you what the study is about? 13:52:38 6 Q. I just asked if they did. Is there a reason why they're 13:52:41 7 less likely to get SSRI drugs than the rest of us? 13:52:46 8 A. We -- in the discussion section of this abstract we 13:52:51 9 propose some potential reasons. Prescriber bias; in other 13:52:56 10 words, this was one of those observational studies. People 13:53:01 11 weren't randomized. African-American women weren't equally 13:53:08 12 randomized to receive SSRIs, equally randomized to receive 13:53:15 13 other SSRIs. The data was from there in New Jersey as well. 13:53:21 14 Q. Who funded it? 13:53:22 15 A. The first author, Andy Nuremberg -- I am not the first 13:53:26 16 author of that abstract. He actually received the money from 13:53:30 17 Eli Lilly. But the funding is to him, not to me. 13:53:33 18 Q. The funding for that paper came from the manufacturer of 13:53:41 19 Prozac, correct? 13:53:41 20 A. Yes, that's correct. 13:53:41 21 Q. And two of the authors on that study with you were 13:53:44 22 Dr. Favre and Dr. Rosenbaum, weren't they? 13:53:48 23 A. They are stated in the study, the abstract, yeah. 13:53:50 24 Q. And are you familiar with their history of publication 13:53:53 25 with regard to the issues that bring us here today? 1119 13:53:56 1 A. Not -- what specifically are you referring to? 13:54:00 2 Q. There's a Favre and Rosenbaum article in the early '90s on 13:54:06 3 these very issues. Are you familiar with it? 13:54:09 4 A. Very vaguely. Not involved in this case, but I read it a 13:54:13 5 while ago and I don't know it well enough to comment on it. 13:54:17 6 Q. Just a few more things. 13:54:19 7 In the Lane article did you see where Dr. Lane said 13:54:24 8 if these drugs cause a problem for a small minority of 13:54:28 9 people, it must be because of their constitutional 13:54:31 10 predisposition, in other words, their body chemistry? Did 13:54:35 11 you see where he wrote that? 13:54:37 12 A. Can you point that out? I don't remember where that is. 13:54:39 13 Q. I don't know how quickly I can point it out to you on your 13:54:42 14 copy. Let me see your copy, if I may. And while I'm here 13:54:47 15 may I see the Bradford Hill paper? 13:54:51 16 A. Sure. 13:55:28 17 Q. Right here on the last page of the conclusions would you 13:55:30 18 read the sentence that starts, "The rare occurrence..." 13:55:37 19 A. "The rare occurrence of akathisia when SSRIs are 13:55:40 20 administered even to patients with predisposing factors 13:55:43 21 points to the fact that certain individuals may have an 13:55:46 22 underlying constitutional predisposition to these 13:55:48 23 SSRI-induced effects." 13:55:54 24 Q. Now, do you agree with him that if these drugs pose a 13:55:57 25 problem for someone, it is probably because of their 1120 13:55:59 1 constitution, their body chemistry? 13:56:06 2 A. I need to think about what exactly this means. Can you 13:56:13 3 bear with me? I want to look at sort of the context that 13:56:18 4 this is referring to. 13:56:20 5 Q. Sure. The question is do you agree with Dr. Lane at 13:57:07 6 Phizer that if these drugs pose a danger for some people that 13:57:07 7 it is probably because there's something in the body makeup, 13:57:07 8 the words he used, constitutional predisposition, of those 13:57:07 9 people that place them at risk for this adverse event? 13:57:07 10 A. I'm not an akathisia expert. I would sort of have to 13:57:07 11 think about this. I think what he's saying is if you have 13:57:07 12 certain conditions, for example, like Parkinson's disease or 13:57:07 13 something like that which, you know, might predispose you to 13:57:07 14 something like akathisia, people who akathisia -- looks like 13:57:11 15 what he's saying, people on SSRIs who develop akathisia might 13:57:15 16 have an underlying condition that predisposes them. 13:57:17 17 And I can think of maybe a few conditions that might 13:57:20 18 predispose you, you know, something like Parkinson's disease 13:57:24 19 or something. Again, I'm not an akathisia expert by any 13:57:27 20 means. 13:57:44 21 Q. You said earlier you never go on to look at any of the 13:57:47 22 other Bradford Hill factors unless the strength of 13:57:51 23 association shows a statistically significant positive 13:57:54 24 association. That was your testimony, right? 13:57:57 25 A. If I said that, I would want to just make it clear, it is 1121 13:58:01 1 not never. There's some very, very rare circumstances where, 13:58:06 2 you know, you might be able to establish, but they're very 13:58:10 3 rare, rare circumstances where you can establish that a drug 13:58:17 4 causes an adverse effect without having an association. But 13:58:22 5 it is a very rare circumstance. 13:58:24 6 Q. Would you read what Sir Arthur Bradford Hill said himself, 13:58:30 7 "None of my nine viewpoints..."? Read that sentence for me. 13:58:34 8 A. "None of my nine viewpoints can bring indisputable 13:58:37 9 evidence for or against the cause and effect hypothesis and 13:58:41 10 none can be required as a sine qua non." 13:58:44 11 Q. Now, sine qua non is a fancy Latin phrase, isn't it? 13:58:48 12 A. It is Latin and you actually may know better how to 13:58:51 13 translate it. 13:58:53 14 Q. Doesn't it mean that without which none? What he's saying 13:58:59 15 is you can't require any of his nine as the essential, you 13:59:03 16 got to have this one before you go on to the other? That's 13:59:06 17 what Bradford Hill says, isn't it, Doctor? 13:59:11 18 A. With the exception where you actually saw it where I 13:59:13 19 underlined it, if the evidence is experimental, that's one of 13:59:18 20 his criteria. He said that would be the strongest criteria, 13:59:22 21 you're right. None of them are essential. There's no sine 13:59:26 22 qua non. 13:59:26 23 But he indicates, and this is just his opinion, you 13:59:29 24 know, he doesn't write the rules of epidemiology and this is, 13:59:33 25 you know, from the 1960s that you're reading, but 1122 13:59:36 1 experimental evidence he did elevate and say this is really 13:59:40 2 better evidence if you have it. If you have randomized 13:59:43 3 controlled clinical trial data, that's the best means of 13:59:53 4 establishing causality. 13:59:53 5 Q. Well, earlier you were asked some questions about whether 13:59:56 6 it is appropriate to take results from one SSRI drug and in 14:00:02 7 effect sort of say well, if you have this problem with this 14:00:06 8 class of drugs then we've got to watch out for similar 14:00:09 9 problems with the other drugs in this class. Do you recall 14:00:12 10 that testimony? 14:00:13 11 A. Yeah, but I think I said it the other way around. 14:00:16 12 Q. You said it is not appropriate? 14:00:18 13 A. Yeah, it was potentially a problem to assume that, you 14:00:21 14 know, all drugs in the same class have the same side effects. 14:00:25 15 Q. Now, the jury has already seen this, but I'm sure you have 14:00:30 16 as well, you're familiar with the fact that the Paxil label 14:00:34 17 has a warning suggesting you should not give this drug within 14:00:38 18 14 days of an MAOI, or vice versa, you know that, don't you? 14:00:46 19 A. It has been a while since I reviewed the Paxil label. I 14:00:52 20 haven't prescribed any antidepressant since 1998 so I haven't 14:00:57 21 seen the label recently. 14:00:58 22 Q. Here is my question about it. The label itself says based 14:01:02 23 on experience with another SSRI drug, and specifically it is 14:01:05 24 Prozac -- based on that, we're going to warn you about giving 14:01:10 25 our SSRI drug within 14 days after MAOIs. Did SmithKline 1123 14:01:16 1 Beecham act unreasonably in issuing that warning? 14:01:19 2 A. You know, it is actually interesting that -- you remember 14:01:22 3 a couple minutes ago when I was telling you there's only a 14:01:26 4 rare, rare, rare circumstance where you might be able to 14:01:30 5 establish causality without a statistically significant 14:01:33 6 association from a controlled trial? That's the circumstance 14:01:37 7 that you're talking about. It is when there's no background 14:01:40 8 rate of the condition. When the condition is so rare that 14:01:45 9 you don't have any background rate of it -- 14:01:48 10 Q. What condition are you talking about? 14:01:50 11 A. When you mix SSRIs with MAOIs. 14:01:52 12 Q. What does that cause? 14:01:53 13 A. It can cause something called serotonin syndrome. I'm not 14:01:56 14 an expert in that either, but that is something you're taught 14:01:59 15 in residency, that if you mix, you know -- one of the first 14:02:03 16 things you're taught, if you take an SSRI with a different 14:02:07 17 type of antidepressant called an MAOI, a very serious 14:02:11 18 reaction can occur called the serotonin syndrome. 14:02:15 19 But unlike suicide which occurs in -- one out of 14:02:19 20 seven deaths in depressed people is a suicide, serotonin 14:02:22 21 syndrome isn't something you're going to run into. It is so 14:02:25 22 rare. 14:02:26 23 Q. It is drug induced? 14:02:27 24 A. It is so rare there's no background rate to it. That's 14:02:30 25 the one I was referring to when I said only very, very rarely 1124 14:02:35 1 in an unusual, unusual, unusual, strange circumstance. Do 14:02:38 2 you remember when -- maybe you don't remember, but that's the 14:02:40 3 circumstance where you don't necessarily need to show a 14:02:43 4 statistical significant association between a drug and an 14:02:48 5 adverse event in a controlled trial because there's no 14:02:51 6 background -- remember, I said you need a control to know 14:02:54 7 whether a drug causes an effect above and beyond a background 14:02:58 8 rate? 14:02:59 9 Q. Sure. 14:03:00 10 A. If there's no background rate at all, if it ever shows up, 14:03:04 11 you have an answer. 14:03:05 12 Q. And, Dr. Wang, akathisia is drug induced by definition, 14:03:11 13 isn't it? 14:03:12 14 A. There's a background rate to akathisia. Akathisia is -- 14:03:16 15 it actually -- this is not my area, but I've been reading -- 14:03:20 16 I read the literature and there's just speculation on what it 14:03:26 17 is caused by, and there's definitely a background rate of 14:03:29 18 akathisia. 14:03:29 19 Q. In nondrug-induced states? 14:03:32 20 A. There's -- 14:03:33 21 Q. Let me ask this real specifically. Have you ever seen any 14:03:38 22 reports of akathisia as such where it was not triggered by 14:03:42 23 either a neuroleptic drug or an SSRI? 14:03:48 24 A. I'm probably -- I'm out of my area where I should be 14:03:51 25 considered an expert, but I know like schizophrenia, there 1125 14:03:55 1 are questions about whether these extrapyramidal symptoms are 14:04:00 2 caused by the illness itself, not drug induced. So tardive 14:04:06 3 dyskinesia, Parkinsonian symptoms, these are what you call 14:04:11 4 EPS. 14:04:13 5 Q. Let's follow up on that. Tardive dyskinesia is an 14:04:17 6 extrapyramidal symptom? 14:04:20 7 A. Yes, one of them. 14:04:21 8 Q. Akathisia is an extrapyramidal symptom, right? 14:04:24 9 A. Yes. 14:04:25 10 Q. Everybody in your field believes that neuroleptic drugs 14:04:28 11 cause tardive dyskinesia, don't they? 14:04:31 12 A. Let me say what I'm speculating on and then not go beyond 14:04:35 13 what I really sort of feel comfortable saying. But when I 14:04:40 14 read the literature -- and I can't really specifically tell 14:04:44 15 you which ones -- there's a background rate, certainly 14:04:48 16 schizophrenia, whether or not you have been exposed to 14:04:51 17 neuroleptics, to having extrapyramidal symptoms and that is 14:04:58 18 what makes it difficult to study. 14:05:00 19 Q. My question is specific to tardive dyskinesia. Everyone 14:05:10 20 in the field of psychiatry believes that tardive dyskinesia 14:05:10 21 is caused by a certain category of psychoactive drugs called 14:05:14 22 neuroleptics? 14:05:15 23 A. No. 14:05:16 24 Q. That's not true? 14:05:16 25 A. That's exactly what I'm saying is not true. There are 1126 14:05:21 1 some -- again, these are hypotheses and I'm not sure what the 14:05:25 2 date is here, it would be a matter of reviewing this, but on 14:05:28 3 the basis of schizophrenia the disease itself -- if you look, 14:05:32 4 for example -- let me say, on the basis of the disease 14:05:37 5 itself, even before in people who have never experienced any 14:05:42 6 neuroleptic -- these antipsychotic drugs you're talking 14:05:47 7 about, you do see EPS. 14:05:50 8 Q. I'm talking about tardive dyskinesia. 14:05:53 9 A. That's one of the ones you can see even before people have 14:05:56 10 ever been given an antipsychotic neuroleptic drug. There is 14:06:01 11 a background rate to it regardless of whether you've been on 14:06:04 12 the drug or not. 14:06:05 13 Q. All right. If that's your testimony, let's stand on it. 14:06:09 14 Let's move to something else. 14:06:11 15 The Montgomery study you mentioned earlier uses 14:06:14 16 person years as the barometer, doesn't it? 14:06:18 17 A. In certain analyses. 14:06:19 18 Q. Would you tell the jury what a person year is? 14:06:22 19 A. Person year is people can spend different amounts of time 14:06:25 20 in a clinical trial. For example, in like the Verkes trial 14:06:28 21 which we were talking about which was a whole year long, not 14:06:34 22 everyone stayed in the trial for the entire year. Some 14:06:37 23 people dropped out, some people were lost to follow-up, some 14:06:40 24 had side effects and quit. 14:06:42 25 So people are stopping the trial, they're stopping at 1127 14:06:45 1 different points throughout the year and you use person 14:06:51 2 years, what you do is you say however much time you spent in 14:06:55 3 the trial, you weight that data, give it a certain amount of 14:07:02 4 importance based on how long the person was in the trial. If 14:07:04 5 you were in the trial only one day and you dropped out, your 14:07:07 6 information gets weighted less. You only get one day's worth 14:07:12 7 of weighting. 14:07:13 8 Meanwhile if you're someone who completed the whole 14:07:18 9 year and we've been able to follow you and see your 14:07:20 10 experience for the whole study period, we give you the full 14:07:24 11 year of weighting. It is not directly 365 times what the one 14:07:28 12 person got -- the one day person got, but think of it as 14:07:32 13 proportional. 14:07:33 14 What you really want -- person years allow you to do 14:07:36 15 that. You can give extra weight to people who you watched 14:07:40 16 for the full year, however long the trial is; you give less 14:07:43 17 weight to the people who have only spent short periods of 14:07:46 18 time in the trial. 14:07:47 19 Q. Let's follow up on that with a concrete example. If we 14:07:51 20 had a trial and there were only two people in this trial, you 14:07:53 21 and me, and I was on an SSRI drug for two days like Don 14:07:58 22 Schell was and then I committed a horrible act like he did, 14:08:03 23 and you were on for the rest of the year, 363 days, then your 14:08:10 24 experience is more heavily weighted in the analysis of using 14:08:14 25 person years than mine, isn't it? 1128 14:08:16 1 A. No, because you're actually -- the way you would 14:08:19 2 analyze -- not to get too technical but the way you would 14:08:22 3 analyze here is different. You would in this situation -- 14:08:25 4 I'm wearing my epidemiologist hat, but you would do a 14:08:30 5 survival analysis. 14:08:31 6 And if you had the outcome, in this case suicide -- 14:08:36 7 Q. Death? Death? 14:08:37 8 A. -- after two days, you get censored. I don't want to get 14:08:43 9 technical, but a different analysis would take place. 14:08:46 10 Q. Does my experience count? 14:08:47 11 A. Of two days? 14:08:48 12 Q. Yes. 14:08:49 13 A. Yes, it does. 14:08:50 14 Q. But it gets weighted for two days' worth, doesn't it? 14:08:53 15 A. The ideal way to analyze this would not be what you're 14:08:57 16 describing. It is not necessarily person years but the ideal 14:09:00 17 way or the way I would do it would be a survival analysis. 14:09:36 18 Q. What happens when there's rare events and you look at them 14:09:36 19 from the standpoint of statistical -- in statistics? Do some 14:09:36 20 of them sometimes get lost? Do real human beings and their 14:09:36 21 suffering get lost in statistical analysis sometimes? 14:09:37 22 A. Could you reask the question because I'm having trouble 14:09:39 23 understanding what you mean? 14:09:40 24 Q. Let me show you an example and maybe that will help you 14:09:44 25 understand what I mean. I'm showing you Exhibit 12 and this 1129 14:09:47 1 is the adverse events report from the clinical trials with 14:09:50 2 Paxil. 14:10:03 3 See where it says comparison for adverse experiences 14:10:05 4 listed by preferred term within body system, worldwide data? 14:10:10 5 A. Where is this coming from? 14:10:12 6 Q. This is coming from Beecham Laboratory's new drug 14:10:21 7 application that was filed with the FDA in November of 1989. 14:10:22 8 This is unpublished internal data. 14:10:29 9 Now, you know this figure in -- 2963, now what that 14:10:33 10 is, don't you, Doctor? 14:10:35 11 A. The number of people who are -- it looks like -- I'm 14:10:38 12 guessing. I haven't seen this data. It looks like the 14:10:41 13 number of people given paroxetine. These are randomized 14:10:46 14 controlled clinical trials? 14:10:48 15 Q. Yes, sir. This is the same database that was used for 14:10:52 16 Lopez-Ibor, Montgomery, all these other metaanalyses. 14:10:57 17 You've seen that 2963 patients before in reading the 14:11:02 18 other scientific literature? 14:11:03 19 A. If this is the database, yeah, it is a similar set of 14:11:06 20 clinical trials that were probably used. 14:11:10 21 Q. Now, is a delusion one of the hallmarks of psychosis? 14:11:15 22 A. It is -- a delusion is a psychotic symptom, a symptom of 14:11:21 23 psychosis, yes. 14:11:22 24 Q. Is hallucination another one? 14:11:24 25 A. A type of psychotic symptom, yes. 1130 14:11:27 1 Q. What do people do when they become psychotic? 14:11:31 2 A. What do you mean, what do they do? 14:11:32 3 Q. Are they a danger to themself or others? 14:11:35 4 A. Some are, some aren't. 14:11:36 5 Q. Is psychosis just an extremely dangerous physical and 14:11:40 6 mental condition? 14:11:47 7 A. Dangerous from what perspective? There are people who 14:11:50 8 have psychotic symptoms who don't necessarily pose a danger 14:11:54 9 to themselves and there are people with psychotic symptoms 14:11:57 10 that do pose a danger to themselves, a very important thing 14:12:01 11 that clinical psychiatrists try to tease apart. 14:12:04 12 Q. Let's look at what happened here with delusions. You see 14:12:17 13 there were two reported instances of delusions? 14:12:22 14 A. Uh-huh. 14:12:23 15 Q. But it comes up zero percent, doesn't it? 14:12:26 16 A. Probably rounding, rounding issue. In other words, it is 14:12:30 17 probably -- you understand what I mean by rounding? 14:12:34 18 Q. Is that okay to round down to zero? 14:12:37 19 A. Again, I don't really know what I'm looking at, but let's 14:12:40 20 say you're dealing with so much data and you have so many 14:12:43 21 numbers and you don't want to overwhelm your audience, you 14:12:47 22 might round to try to reduce down to only a few digits so you 14:12:52 23 don't overwhelm your person with too many numbers. 14:12:56 24 Q. Doctor, is it okay to round down eight different patients 14:13:00 25 that had hallucinations, to round them down to zero? 1131 14:13:03 1 A. You say is it okay to round your data down? 14:13:08 2 Q. To zero. 14:13:09 3 A. It depends. What is happening -- can you go back to the 14:13:13 4 top of the -- 14:13:19 5 Q. Sure. 14:13:20 6 A. Just show the -- what is happening, this is a percent. 14:13:22 7 They're just saying 8 over 3,000, what percent is that? You 14:13:28 8 probably can calculate it faster than I can. In any case, it 14:13:32 9 looks like it is .001 percent. Am I calculating -- .01. 14:13:39 10 Whatever it is, for example, it is -- 14:13:43 11 Q. It is -- 14:13:44 12 A. They're only showing one digit. Because they don't want 14:13:46 13 to put .0001, they're saying if you round to one digit it is 14:13:52 14 rounded to zero. 14:13:53 15 Q. Well, when the Donovan study was published they rounded 14:13:56 16 that to -- they took the P value out to three digits, didn't 14:14:00 17 they, .001? 14:14:03 18 A. There, again, you -- 14:14:06 19 Q. Didn't they? 14:14:08 20 A. That's right, .001, because it is -- 14:14:11 21 Q. And wouldn't that be the same percentage as 3 patients out 14:14:15 22 of 3,000 patients who had delusions, .001? 14:14:24 23 A. I'm sorry, I'm slow here, but I'm not understanding the 14:14:28 24 question. 14:14:30 25 Q. That's okay. Is it okay, just in terms of statistical 1132 14:14:37 1 massaging of information, to round down the real-life 14:14:41 2 experiences of eight patients having hallucinations to zero? 14:14:49 3 A. That's -- I can't answer that question. I don't know what 14:14:52 4 you're really looking at here. I know they rounded -- for 14:14:55 5 purposes of presentation they've, you know, calculated 14:14:58 6 probably the fraction 8 over 2963 instead of wanting to show 14:15:04 7 too many other figures. They just presented one column 14:15:08 8 because it is simpler to look at. 14:15:11 9 I don't know what the purpose is. If the purpose was 14:15:13 10 really to figure out who these eight people are, in other 14:15:16 11 words, in someone examining the data I think if they were 14:15:20 12 interested they would probably look into those cases so they 14:15:23 13 don't get lost. 14:15:24 14 For purposes of sort of presenting the data, I review 14:15:27 15 a lot of data and it is easier on the eyes to look at one 14:15:31 16 digit than -- it doesn't discount these people, but sometimes 14:15:35 17 when you're reviewing a lot of data, as I do, it is easier 14:15:39 18 sometimes to look at fewer digits because it can overwhelm 14:15:47 19 you if there are too many. 14:15:47 20 I can't support what you're saying in terms of is it 14:15:49 21 okay to lose people on the hallucinations. No, it is not 14:15:55 22 okay. 14:15:55 23 Q. You would agree it is not okay to lose the eight people? 14:15:59 24 A. Depends on what the purpose is. If the purpose is 14:16:01 25 reviewing the data quickly and getting a rapid feel for 1133 14:16:04 1 what's an important side effect on this list, I mean, one 14:16:07 2 digit is to some extent easier to look at and you can -- 14:16:12 3 Q. Dr. Wang, is it okay to round down three patients who got 14:16:15 4 psychotic on this drug down to zero? Is that okay? 14:16:22 5 A. If your purpose is for presenting data efficiently that 14:16:25 6 people can digest, not get overwhelmed, if this was, for 14:16:33 7 example -- if I were a reviewer for a journal and reviewing 14:16:35 8 this article and I need to see this data quickly and I would 14:16:40 9 hope that the authors would present it in a manner that's 14:16:44 10 clear, simple and, you know, if you present way too many 14:16:49 11 zeros -- sometimes people intentionally make it confusing by 14:16:53 12 doing that when they're trying to hide something. 14:16:55 13 And if it is very simple like look, we're looking at 14:16:59 14 one digit here, if there's a lot of people getting a side 14:17:03 15 effect, you should see 10 percent, 100 percent, something 14:17:07 16 like that. 14:17:08 17 Here basically if it is a very small number for 14:17:11 18 presentation purposes, I'm just saying -- I don't know what 14:17:14 19 the data is about but sometimes it is easier to review and 14:17:18 20 clearer not to present too many digits. 14:17:20 21 Q. Dr. Wang, would you say that the three people who became 14:17:23 22 psychotic and eight who had hallucinations and the two or 14:17:27 23 three who had delusions constitutes a small subpopulation of 14:17:31 24 the total 2964 patients? 14:17:36 25 A. Important population, but the numbers should be presented, 1134 14:17:40 1 you know, as clearly and simply as possible. People are 14:17:45 2 important. 14:17:46 3 Q. Would you say, sir, in all fairness that people who were 14:17:48 4 experiencing hallucinations, delusions, psychosis are in a 14:17:53 5 vulnerable condition and that those around them and come in 14:17:59 6 contact with them are equally vulnerable? 14:18:02 7 A. Anybody caring for that patient, not the ones reviewing 14:18:06 8 data but the people responsible for caring for that patient, 14:18:10 9 either in the trial or if this were real-world observational 14:18:14 10 data, whoever is caring for that patient better be aware of 14:18:17 11 this and treat them responsibly. 14:18:20 12 But that's a different obligation -- so people caring 14:18:22 13 for that patient, you know, really need to know that this 14:18:26 14 person is having psychotic symptoms. For an epidemiologist, 14:18:30 15 for example, whose responsibility is to review the data, be, 14:18:35 16 you know, sort of rigorous and responsible, sometimes the way 14:18:39 17 you present the data if it is simplified, it is actually 14:18:43 18 helpful to the epidemiologist, the reviewer, and it makes for 14:18:47 19 a more responsible review. 14:18:49 20 To present -- it doesn't discount that this person, 14:18:53 21 these individuals, these are real people and whoever is 14:18:56 22 caring for them needs to know they're psychotic and better 14:18:59 23 take care of them, make sure they're safe, give them the 14:19:03 24 right treatment. That's crucial. 14:19:05 25 Q. The doctors? 1135 14:19:06 1 A. The doctors caring for the people. 14:19:08 2 Q. Do the doctors -- if the drug is triggering that behavior, 14:19:13 3 even in 8 out of 2964 people, those doctors need to know 14:19:18 4 that, don't they? 14:19:19 5 A. The doctor better be asking, you know, do these people 14:19:22 6 have these symptoms and if they're having them, they need to 14:19:25 7 evaluate if the patient -- as you've said, are they safe. 14:19:28 8 They need to get them the right treatment, maybe the right 14:19:31 9 medication, adjust the medication if needed. 14:19:33 10 But these are the -- maybe that's the distinction, 14:19:36 11 the people in these trials are important and the people who 14:19:40 12 are caring for them need to know these symptoms, but, you 14:19:44 13 know, does -- you seem to be asking me is there a problem 14:19:49 14 with rounding numbers to efficiently and clearly present 14:19:52 15 data. That doesn't strike me as being irresponsible for 14:19:56 16 these people. 14:19:56 17 Q. Dr. Wang, how are doctors that prescribe these medications 14:20:00 18 going to know if this data is not published, and there are 14:20:07 19 eight people and it is rounded down to zero and the company 14:20:12 20 doesn't put anything on the warning about it and the salesmen 14:20:15 21 don't tell the doctor about it? How are they going to know? 14:20:18 22 A. It is funny, now that you're -- if it is the worldwide 14:20:21 23 clinical trial database of Paxil studies before approval -- 14:20:26 24 Q. Is that what I'm looking at? Can you answer my question? 14:20:35 25 A. Yeah. 1136 14:20:35 1 Q. If the data is not published, if the incidence is rounded 14:20:35 2 off to zero, if the company doesn't put a warning on the 14:20:38 3 label and if the salesman doesn't try to get the doctor's 14:20:43 4 attention and shake him and alert him, how in the name of 14:20:46 5 heaven is the doctor supposed to know about it? 14:20:49 6 A. That data -- 14:20:50 7 MR. PREUSS: Objection, Your Honor, calling for an 14:20:51 8 incomplete hypothetical, argumentative and no foundation. 14:20:55 9 THE COURT: Sustained. I think we've kind of drilled 14:20:57 10 this one in pretty good. 14:20:59 11 MR. VICKERY: I will return the doctor's copy of 14:21:04 12 Bradford Hill and pass the witness, Your Honor. 14:21:06 13 THE COURT: Thank you very much. 14:21:08 14 Redirect. 15 REDIRECT EXAMINATION 14:21:09 16 Q. (BY MR. PREUSS) Doctor, just one question. If you're 14:21:12 17 looking at that data, say, psychosis there that's underlined, 14:21:17 18 you will know that there are three people that reported 14:21:19 19 psychosis, correct? 14:21:21 20 A. Uh-huh. Yes, that's correct. 14:21:23 21 MR. PREUSS: Thank you. No further questions. 14:21:26 22 THE COURT: May this witness be permanently excused? 14:21:29 23 MR. VICKERY: Sure. 14:21:32 24 THE COURT: Thank you very much, Dr. Wang. You may 14:21:34 25 step down and are permanently excused from further attendance 1137 14:21:37 1 at this trial. 14:21:39 2 THE WITNESS: Thank you, Your Honor. 14:22:08 3 THE COURT: Who is the next witness? 14:22:12 4 MR. GORMAN: The next witness will be Sherry McGrath, 14:22:14 5 Your Honor. She should be coming. 14:23:08 6 (Witness sworn.) 14:23:09 7 THE CLERK: Please state your name and spell it for 14:23:10 8 the record. 14:23:12 9 THE WITNESS: Sherry L. McGrath. 14:23:14 10 S H E R R Y, L., McGrath, M C capital G R A T H. 14:23:21 11 MR. GORMAN: Your Honor, good afternoon. I haven't 14:23:22 12 had much chance to say hello to the Court and to the jury 14:23:25 13 today, so good afternoon. 14:23:27 14 THE COURT: Afternoon. 15 16 SHERRY MCGRATH, 17 called as a witness on behalf of the Defendant, being first 18 duly sworn, testified as follows: 19 DIRECT EXAMINATION 14:23:28 20 Q. (BY MR. GORMAN) Mrs. McGrath, tell the ladies and 14:23:33 21 gentlemen of the jury and Judge Beaman where you live. 14:23:36 22 A. I live in Gillette, Wyoming at Number 16 Hawk Court. 14:23:40 23 Q. And how long have you lived in Gillette? 14:23:42 24 A. I have lived in Gillette since 1971. 14:23:45 25 Q. Are you married? 1138 14:23:46 1 A. Yes, I am. 14:23:47 2 Q. Your husband's name is? 14:23:49 3 A. Ron. 14:23:50 4 Q. And Mr. McGrath is sitting back in the back of our 14:23:53 5 courtroom? 14:23:54 6 A. Yes, he is. 14:23:55 7 Q. Do you and Mr. McGrath have children? 14:23:57 8 A. Yes, we do. We have three of them. 14:24:01 9 Q. How old are your children? 14:24:02 10 A. Jamie is 28, Josh is 24 and Ashley is 15. 14:24:06 11 Q. And how are you employed? 14:24:07 12 A. I'm the broker/owner of Boardwalk Real Estate. 14:24:13 13 Q. And when did you begin the profession of selling real 14:24:17 14 estate? 14:24:17 15 A. I started selling real estate in 1981. I was licensed as 14:24:21 16 a real estate agent in 1983. I was licensed as a real estate 14:24:27 17 broker and in 1987 I purchased ERA Boardwalk Real Estate. 14:24:34 18 Q. And ERA Boardwalk Real Estate is the name of your company? 14:24:37 19 A. Yes, it is. 14:24:37 20 Q. And do you own that business? 14:24:39 21 A. Yes, I do. 14:24:42 22 Q. Do you know Don and Rita Schell? 14:24:44 23 A. Yes, I did. 14:24:45 24 Q. When did you first meet Mr. and Mrs. Schell? 14:24:49 25 A. Probably in the '80s sometime. I'm Catholic and they went 1139 14:24:56 1 to the Catholic church as well. I knew of them. I don't 14:24:59 2 know that I had ever met them. 14:25:01 3 At a point in time Rita was employed by the Catholic 14:25:04 4 church as a secretary, so I know at that point I had contact 14:25:07 5 with her. And then she previously sold real estate for a 14:25:16 6 firm called Top Realty and would have contact with her at 14:25:20 7 that time and got to know her. And then in 1991, I believe 14:25:23 8 it was, she started working for me. 14:25:25 9 Q. And did Mrs. Schell then work for you from 1991 up until 14:25:30 10 February of '98 when she died? 14:25:32 11 A. Yes, she did. 14:25:36 12 Q. During that period of time, seven-year period of time, did 14:25:40 13 you develop a close relationship with Rita Schell? 14:25:44 14 A. Yes, I felt I was close with Rita. 14:25:47 15 Q. And how much time would you say you would spend on the 14:25:49 16 average during a week with Mrs. Schell? 14:25:53 17 A. During the week typically Rita and I were the first two to 14:25:58 18 get into the office and so we would get there -- I would get 14:26:03 19 there before 8:00. Rita would usually come in around 8:00 14:26:07 20 and then stay until about 3:00, 3:30, so six hours a day, 14:26:13 21 excluding if she left for lunch or something, for five days 14:26:17 22 out of the week. 14:26:18 23 Q. Did you ever have occasion to spend much time with Rita 14:26:22 24 outside of the work environment -- excuse me -- Mrs. Schell 14:26:27 25 outside of the work environment? 1140 14:26:28 1 A. The only time I was ever with Rita socially outside of the 14:26:34 2 work environment would have been when there would have been 14:26:38 3 real estate functions or, for instance, at Christmas I always 14:26:42 4 had the Christmas party at my home and we would be together 14:26:46 5 then. 14:27:02 6 And there was only one other occasion where socially 14:27:02 7 we did anything and that was at one point she and I and Barb 14:27:02 8 went and saw a singer at the Heritage Center, at the Camplex, 14:27:14 9 Harry Belafonte, and that was the rare occasion that Rita did 14:27:14 10 anything with us. 14:27:14 11 Q. We will come back to that in a little bit. But during 14:27:17 12 your time in your relationship with Mrs. Schell did you and 14:27:22 13 she talk about your personal lives or your relationships to 14:27:28 14 any great extent? 14:27:29 15 A. We didn't talk a lot about that. Rita and I and Barb all 14:27:40 16 smoked. So in today's world there are few of us remaining so 14:27:43 17 you automatically have a special bond. So we would spend an 14:27:48 18 amount of time together in the smoke room. We would take a 14:27:51 19 break together. But Rita rarely discussed her personal life. 14:27:56 20 Barb and I may have done it to a greater extent than Rita 14:28:00 21 did. 14:28:01 22 Q. You mentioned Barb? 14:28:02 23 A. Barb Trenholm. She was another agent in the office, and I 14:28:06 24 believe she was probably the closest to Rita in our office. 14:28:10 25 Q. We talked a little bit about some of the social activities 1141 14:28:13 1 that you and the Schells participated in. I believe you 14:28:16 2 mentioned some Christmas parties and things like that. 14:28:20 3 Based upon your own observations, can you tell us 14:28:23 4 what you observed about how Don Schell behaved in those 14:28:27 5 social situations that you were also involved in? 14:28:32 6 A. Whenever we had the Christmas party at my house or the 14:28:37 7 realtor Christmas parties, if Rita came, then, of course, Don 14:28:43 8 was with her and he rarely ever left her side. It was 14:28:47 9 typical for other agents to mingle with other agents or other 14:28:52 10 spouses, to stand around and talk, but Don rarely -- I don't 14:28:55 11 ever remember him leaving her side, even for a few minutes. 14:28:59 12 Q. How about Rita Schell? How did she behave around Don in 14:29:04 13 those social settings? 14:29:05 14 A. She stayed with Don. Where in normal situations she 14:29:10 15 would -- Rita was just kind of this fun-loving person who 14:29:17 16 just seemed to enjoy things and could tell a story as much as 14:29:21 17 the other person, but when Don was around it always seemed to 14:29:26 18 me to be a different Rita. She was pretty serious, wasn't 14:29:31 19 near as funny, didn't tell the jokes. She just pretty much 14:29:35 20 stayed with Don as well. 14:29:36 21 Q. Now, were you aware that Don Schell had a history of 14:29:41 22 depression and anxiety? 14:29:44 23 A. The only reason that I was aware -- yes, I was aware that 14:29:49 24 he had had some problems. Soon after Rita came to work with 14:29:53 25 me in '91 she came to me one day and said, "There will be 1142 14:29:59 1 situations where I may need to be away from the office for a 14:30:04 2 while." 14:30:05 3 And at that point she told me that Don had suffered 14:30:08 4 from, as she called it, bouts of depression where he would be 14:30:15 5 in a deep state of depression. At that point in time it 14:30:18 6 would be necessary for her to stay at home with him to try to 14:30:21 7 work his way back out of it, and that she might need my 14:30:24 8 assistance on different things when that happened because in 14:30:29 9 real estate you're really an independent contractor, so 14:30:32 10 you're responsible for your own work. 14:30:34 11 And at the time I told her that was fine, if there 14:30:37 12 was anything I could do for her, I would be happy to do that. 14:30:40 13 And I would know because Rita is a very, very dependable 14:30:44 14 person, if she said she would do something, she will be there 14:30:47 15 at 8:00, she would be there at 8:00. 14:30:49 16 And so if for any reason she didn't come in and I had 14:30:52 17 not received notice, that I would go ahead and handle things 14:30:59 18 for her. She was very explicit it was very confidential, so 14:31:03 19 I never said another word about it up until the day she died. 14:31:06 20 Q. This was a conversation between you and Mrs. Schell? 14:31:09 21 A. Yes. 14:31:09 22 Q. And you considered it confidential and maintained that 14:31:15 23 confidentiality? 14:31:16 24 A. Yes, I did. 14:31:20 25 Q. Were you ever aware of the medications that Mr. Schell was 1143 14:31:24 1 taking for his depression over the years? 14:31:27 2 A. No, I was not. 14:31:34 3 Q. You mentioned that Mrs. Schell occasionally asked or told 14:31:38 4 you confidentially that she would occasionally need coverage 14:31:42 5 during these events. Did Mrs. Schell want any other kind of 14:31:45 6 assistance or ask for any other kind of assistance during 14:31:49 7 these episodes? 14:31:50 8 A. No. There was only the one time and no, she didn't ask 14:31:53 9 for anything else from me. 14:31:59 10 Q. Did people at your office bring books, for example, and 14:32:01 11 start accumulating books for Rita? 14:32:04 12 A. Yes, we did do that. And when she had mentioned Don's 14:32:09 13 depression, at that time then I maybe said, "What do you do?" 14:32:16 14 or whatever? I have no experience with depression at all. 14:32:20 15 And she said it was sort of like being in this deep, dark 14:32:23 16 hole and he would try to work his way back out of it, that 14:32:26 17 the drapes would be closed and he didn't want to go outside 14:32:30 18 and that she had found that if he would read a lot of books, 14:32:37 19 sometimes that was helpful in sort of changing his mindset. 14:32:38 20 And so at that point different people started bringing books 14:32:47 21 in for him to read. 14:32:48 22 Q. And I think you mentioned this, it was during these times 14:32:51 23 when it was Mr. Schell who did not want Rita to be away from 14:32:54 24 him? 14:32:55 25 A. Right. She had told me when he was in one of these bouts 1144 14:32:59 1 of depression he didn't want her to leave the house. He 14:33:02 2 wanted her to stay there with him. 14:33:04 3 Q. Were you acquainted with a physician by the name of 14:33:06 4 Dr. Suhany? 14:33:07 5 A. Yes, I sold Dr. Suhany and his wife Lisa a home. 14:33:11 6 Q. And Dr. Suhany is a psychiatrist, true? 14:33:14 7 A. Correct. 14:33:15 8 Q. And Dr. Suhany practiced for a period of time in Gillette? 14:33:19 9 A. Yes, he did. 14:33:20 10 Q. Were you aware that Mr. Schell was treated by Dr. Suhany 14:33:23 11 during 1990? 14:33:32 12 A. I don't remember the exact time he was treated, but I know 14:33:33 13 he was treated by Dr. Suhany because Rita had mentioned one 14:33:37 14 day, knowing that I had sold them the house, that Don really 14:33:39 15 liked him. 14:33:41 16 Q. Okay. Were you aware that Mr. Schell suffered from two 14:33:44 17 additional depressive episodes in '91 and '93 and that he 14:33:49 18 during those occasions was treated both by a psychologist and 14:33:54 19 a psychiatrist? 14:33:56 20 A. No, I was not. 14:34:02 21 Q. Were you aware that Don Schell counseled with Sister Agnes 14:34:06 22 Claire of the Catholic church for an extended period of time 14:34:09 23 from 1993 to 1996 for depression? 14:34:13 24 A. No. 14:34:14 25 Q. Did Rita prior to the tragic events of February -- did 1145 14:34:19 1 Rita discuss with you the fact that Mr. Schell was again 14:34:22 2 suffering from depression in the early part of 1998 and into 14:34:28 3 February of 1998? 14:34:30 4 A. No, she did not. 14:34:38 5 Q. Do you know why she didn't tell you these things? 14:34:41 6 A. Well, at the time there was a lot going on in the office. 14:34:43 7 But I know particularly before her death that we had just 14:34:48 8 lost a secretary who didn't want to come in to work on a 14:34:53 9 regular basis, and of course we needed to have somebody there 14:34:56 10 eight hours a day, five days a week. That's what we hire 14:35:00 11 them for. 14:35:01 12 And I don't know if at the time she thought, you 14:35:06 13 know, since I really didn't understand anything about 14:35:09 14 depression if she thought, oh, I'm not going to say anything 14:35:13 15 about Don right now, she's already unhappy over this 14:35:17 16 secretarial thing. 14:35:18 17 But no, she did not say anything to me at all. And 14:35:21 18 there was a lot happening in the office at that time. 14:35:24 19 Q. Now, were you aware, Mrs. McGrath, of any problems arising 14:35:35 20 in the relationship Mr. and Mrs. Schell had with other folks 14:35:38 21 in Gillette because of Don's depression? 14:35:40 22 A. I know that at one point in time Jeannie Hawkinson had 14:35:44 23 mentioned problems and said that they would not continue to 14:35:49 24 see them if Don didn't seek help. 14:35:52 25 MR. FITZGERALD: Excuse me, Your Honor. It is 1146 14:35:53 1 hearsay. 14:35:55 2 THE COURT: Sustained. 14:36:03 3 Q. (BY MR. GORMAN) Who was Jeannie Hawkinson? 14:36:06 4 A. Her husband Ridge had been involved in the oil field and 14:36:10 5 they had from some point earlier on -- all of the oil field 14:36:14 6 people would be friends. 14:36:15 7 Q. Based on your close relationship with Mrs. Schell and your 14:36:20 8 knowledge of Mr. and Mrs. Schell's relationship, how would 14:36:23 9 you describe Don Schell? 14:36:50 10 A. I felt that Don was very controlling. Rita had to be home 14:36:50 11 by 3:00 in the afternoon. She couldn't work on weekends. 14:36:50 12 She couldn't work at night. It would have to be a special 14:36:50 13 occasion. And so my opinion was that he was very 14:36:50 14 controlling. 14:36:52 15 Q. Was Mr. Schell very possessive? 14:36:53 16 A. Yes, he was. 14:36:54 17 Q. When you said Mrs. Schell had to be home at a certain 14:36:57 18 time, what time did she have to be home? 14:37:00 19 A. It was always that if she wasn't home by 4:00, starting at 14:37:03 20 about 3:30, she would become visibly very nervous, very 14:37:08 21 tense. You just knew -- it would be like if I were late for 14:37:14 22 a meeting and I would rush out of the office, that was the 14:37:18 23 sense you had with her in order for her to make some 4:00 14:37:22 24 deadline, only this deadline seemed to be five days a week, 14:37:26 25 52 weeks out of the year. 1147 14:37:29 1 Q. Did you know why she had to be home at 4:00? 14:37:34 2 A. I can't tell you that she ever told me, but it was always 14:37:37 3 understood that Don was the one who did not want her working 14:37:40 4 after 4:00. 14:37:43 5 Q. Did you -- you mentioned you and Mrs. Trenholm and 14:37:48 6 Mrs. Schell went to a concert, Harry Belafonte concert, at 14:37:54 7 the Heritage Center. 14:37:57 8 Do you recall when that was? 14:37:59 9 A. It would have been in the fall of '97. 14:38:06 10 Q. Other than that occasion, in the seven, eight, nine years 14:38:08 11 that Rita -- Mrs. Schell worked for you, did you ever see 14:38:12 12 Mrs. Schell out by herself? 14:38:14 13 A. No. 14:38:49 14 Q. Are you aware of any occasion that Mrs. Schell would go 14:38:49 15 out at night that didn't involve Mr. Schell? 14:38:49 16 A. The only time I was aware of that she would have gone out 14:38:49 17 at night would have been showing property. 14:38:49 18 Q. Did Mrs. Schell, to your knowledge, belong to any outside 14:38:49 19 organizations? 14:38:49 20 A. Not to my knowledge, no. 14:38:49 21 Q. Did Mrs. Schell work late hours? 14:38:51 22 A. No, only if -- I shouldn't say never. Not as a rule, I 14:38:55 23 should say. Only if it involved a particular deal and one 14:38:59 24 that there was absolutely no way out of, because historically 14:39:04 25 she would not work at night. 1148 14:39:11 1 Q. And do you understand a reason for that? 14:39:12 2 A. My understanding is Don did not want her to, so it was 14:39:16 3 easier for her just do the expectation and be home at night. 14:39:23 4 Q. Mrs. Schell -- where did Mrs. Schell work before she 14:39:27 5 became a real estate professional? 14:39:30 6 A. I know that in the past she had worked at a couple of the 14:39:33 7 different banks and she also worked for the Catholic church. 14:39:39 8 Q. Do you know why Mrs. Schell left her job at the bank in 14:39:43 9 Gillette? 14:39:44 10 MR. FITZGERALD: Excuse me, Your Honor. It is 14:39:47 11 irrelevant without some more foundation. 14:39:51 12 THE COURT: Overruled. Witness may answer if she 14:39:53 13 knows. 14:39:54 14 Q. (BY MR. GORMAN) Do you know why she left her job with the 14:39:58 15 bank in Gillette? 14:39:59 16 A. My understanding is it was because she had to work after 14:40:03 17 5:00. 14:40:04 18 Q. And Mr. Schell did not want her working after 5:00? 14:40:07 19 A. Correct. 14:40:08 20 Q. We've had some testimony in the court up to today about 14:40:14 21 rules that existed in Mr. and Mrs. Schell's home. Were you 14:40:22 22 aware of any rules that Mr. Schell imposed on the household? 14:40:26 23 A. The only rule that I'm aware of was that I know that he 14:40:30 24 did not like phone calls after 9:00. 14:40:33 25 Q. And where did you learn that? 1149 14:40:35 1 A. Rita had told me that Don didn't like the phone ringing 14:40:38 2 after 9:00. 14:40:41 3 Q. And that if it did, he got upset? 14:40:44 4 A. Yes. 14:40:45 5 Q. Did you also know about Mr. Schell's thoughts about people 14:40:52 6 parking around or in front of his house? 14:40:58 7 A. I was told that he got upset if people parked in front of 14:41:01 8 his house and would go out and ask, you know -- scream at 14:41:05 9 them to move their cars. 14:41:06 10 Q. And specifically at one point you have -- you made 14:41:11 11 observations at a garage sale, true? 14:41:15 12 A. At that time there were different neighbors across the 14:41:18 13 street and she said whenever they had the garage sale, that 14:41:21 14 he would go out and scream at -- 14:41:23 15 MR. FITZGERALD: This is hearsay, Your Honor. This 14:41:26 16 is frank hearsay. She's testifying what some other woman 14:41:29 17 said she saw. 14:41:30 18 THE COURT: Sustained. 14:41:31 19 Q. (BY MR. GORMAN) I only want you to tell what you 14:41:33 20 understand. 14:41:34 21 Did you ever go to Mr. and Mrs. Schell's home? 14:41:38 22 A. Yes. 14:41:39 23 Q. Were you ever invited into their home for any reason? 14:41:43 24 A. No. 14:41:44 25 Q. Did you have occasion on occasions to go to the Schell 1150 14:41:50 1 home with business-related activities? 14:41:53 2 A. Right, to deliver contracts to her. And I always thought 14:42:00 3 it was unusual, and she may not have done this to everyone, 14:42:03 4 but whenever I delivered contracts, she would just open the 14:42:08 5 door, take the contract, say thanks, make some comment about 14:42:12 6 the deal, but never invite you in. 14:42:17 7 And at my home, for instance, even if the pizza 14:42:20 8 delivery boy is delivering a pizza, I ask him to step inside. 14:42:24 9 And I don't recall that she ever asked me to step inside. 14:42:28 10 Q. Did Mr. Schell ever ask you to step inside? 14:42:31 11 A. No. 14:42:40 12 Q. Based upon your personal knowledge and associations, did 14:42:43 13 Mr. and Mrs. Schell -- did Mr. or Mrs. Schell worry more 14:42:47 14 about money, which one? 14:42:49 15 A. It seemed to me that Don worried more about the money. 14:42:55 16 Q. And tell the ladies and gentlemen of the jury why you say 14:42:57 17 that. 14:42:59 18 A. It just seemed like Rita was worried about the money 14:43:09 19 because Don was worried about the money. He was worried 14:43:13 20 about not working in the oil fields. If a rig was broken 14:43:16 21 down, he was worried because that was his job, to inspect the 14:43:20 22 rigs. It didn't seem to be bothering Rita as it was her fear 14:43:25 23 that it was bothering him. I can only conclude that there 14:43:28 24 was some basis for that. 14:43:29 25 I know if she bought shoes, I remember there was a 1151 14:43:33 1 sale at a shoe store and she bought three pair of shoes and 14:43:39 2 she said she would have to hide them from Don, so that was my 14:43:42 3 conclusion that I had drawn. 14:43:44 4 Q. Did she tell you why she had to hide them from Mr. Schell? 14:43:48 5 A. That he would be mad if he knew she bought three pairs of 14:43:52 6 shoes at one time. 14:43:53 7 Q. Based upon their relationship, did you as a friend and an 14:43:58 8 employer have any concerns about Rita? Were you concerned 14:44:03 9 about her safety? 14:44:04 10 A. Yes. I don't know that I was concerned about her safety. 14:44:10 11 I always felt that Don was very controlling and very 14:44:13 12 possessive, but I always knew that if I ever said anything to 14:44:16 13 her about it that it would mean the end of our friendship 14:44:19 14 because it was like a secret that she held that she wouldn't 14:44:24 15 discuss. The rest of us would all discuss being angry with 14:44:28 16 our husbands and our kids and she never did that. And it was 14:44:31 17 a very close guarded secret to me. And I knew if I ever said 14:44:35 18 anything to her about it, that that would be the end of the 14:44:45 19 friendship. It was like she believed we didn't know how 14:44:45 20 controlling he really was. 14:44:47 21 Q. Did you have occasion to see Mr. and Mrs. Schell out 14:44:50 22 walking? 14:44:51 23 A. Yes. 14:44:51 24 Q. And in public did they seem at least on the surface to be 14:44:55 25 happy? 1152 14:44:56 1 A. Yes, I thought they did. They would always walk holding 14:45:00 2 hands and seemingly happy. I would observe that in church. 14:45:06 3 He would always have his arm very closely held around her. 14:45:11 4 But they seemed okay, yes. 14:45:13 5 Q. Was Don jealous of -- strike that. 14:45:18 6 Was Mr. Schell jealous of Mrs. Schell? 14:45:21 7 A. I believe he was. 14:45:22 8 Q. And why do you say that? 14:45:23 9 A. Just because of the different behavior. If we were out, 14:45:25 10 for instance, at a Christmas party where there would be other 14:45:28 11 men present and suddenly it was she would just stay with him, 14:45:33 12 she wouldn't be as social as she would be in the office, 14:45:38 13 talking to a lot of other people. She would just stay with 14:45:42 14 Don. She wouldn't be the one to tell the joke. And then 14:45:47 15 they would leave as soon as the main part of whatever it was 14:45:50 16 was over. But it was always maybe kind of a restrained Rita 14:45:56 17 compared to what we saw in the office. 14:45:59 18 Q. When you say a restrained Rita, when Don was not around 14:46:03 19 was Rita much more social? 14:46:05 20 A. Yes. 14:46:06 21 Q. Much friendlier? 14:46:07 22 A. Yes. And she would always have -- there were -- at that 14:46:10 23 time there were several of us that smoked. One of them was a 14:46:14 24 gentleman named Bill, so Bill worked for me also. And she 14:46:17 25 would be in the back room and she would always have her joke 1153 14:46:20 1 to tell him. And she always made the comment, "Let's go to 14:46:24 2 the back room and smoke and talk dirty." That was Rita's 14:46:29 3 famous saying. We would go back there and tell each other 14:46:33 4 jokes and we'd smoke and go back and work again. But very 14:46:36 5 social. 14:46:37 6 Q. Now, you said at least in public they seemed happy. Based 14:46:42 7 upon your knowledge and your observations, was that a facade? 14:46:53 8 MR. FITZGERALD: Excuse me, Your Honor. The question 14:46:55 9 is vague. It is also the -- the introduction to it was 14:47:00 10 leading. 14:47:01 11 THE COURT: Little leading, Mr. Gorman. Rephrase the 14:47:03 12 question. 14:47:04 13 MR. GORMAN: Thank you, Your Honor. I apologize. 14:47:06 14 Q. (BY MR. GORMAN) You said Mr. and Mrs. Schell seemed happy 14:47:09 15 at least in public. And I want to know if based upon what 14:47:13 16 you know about Mrs. Schell if she was happy in private. 14:47:19 17 A. I think probably sometimes she was and I think there were 14:47:23 18 some times that she was not. 14:47:26 19 Q. Did Mr. Schell's behavior toward Mrs. Schell affect her 14:47:33 20 job with your company? 14:47:35 21 A. It did. I always felt like Rita had the potential to be a 14:47:40 22 very, very high-producing agent. But if you can only sell 14:47:44 23 real estate from 8:00 in the morning until 4:00 in the 14:47:47 24 afternoon, you can't show in the evenings, you can't work on 14:47:51 25 weekends, your production is going to be limited. 1154 14:47:54 1 Q. We had some testimony here about a million-dollar sales 14:47:57 2 club. What is that in real estate? 14:48:02 3 A. Whenever you're a million-dollar producer, which really in 14:48:04 4 today's market doesn't mean a lot anymore, that means you've 14:48:09 5 sold a million dollars worth of real estate. It doesn't mean 14:48:12 6 you made a million dollars. It means you've sold a million 14:48:15 7 dollars worth. If you have an average price of 2 or 300,000, 14:48:19 8 it doesn't take that many. 14:48:21 9 Q. Did Mrs. Schell make the million-dollar sales club? 14:48:25 10 A. Maybe one or two years. Historically she would -- her 14:48:30 11 income would run somewhere between 9 and maybe 14,000. 14:48:39 12 Q. Did Mrs. Schell while in your employment make an effort to 14:48:44 13 change positions within your office in order to accommodate 14:48:50 14 Mr. Schell? 14:48:51 15 A. Yes, she did. When my office manager's position opened up 14:48:55 16 she came and asked if she could interview for the job. And 14:49:01 17 the office manager is responsible for all of the accounting 14:49:04 18 procedures and a lot of computer knowledge is necessary for 14:49:09 19 it. 14:49:11 20 And it seemed unusual to me that she would have an 14:49:14 21 interest in that because Rita didn't really have any computer 14:49:17 22 knowledge. And I think that she probably would have been 14:49:26 23 having basic math, not necessarily accounting procedures -- 14:49:30 24 she may have done okay, I don't know, but I didn't think she 14:49:34 25 had the qualifications for the job. 1155 14:49:36 1 And I expressed that to her, that I had a concern 14:49:39 2 about her qualifications for that particular job and she was 14:49:42 3 so talented at real estate that my question was, "Why would 14:49:46 4 you want to do that -- this, Rita, instead of selling? You 14:49:51 5 could do so well at selling." 14:49:53 6 And she said, "Because the hours would be better and 14:49:56 7 then I would be done." The office manager traditionally 14:50:03 8 worked from 8:00 in the morning until 2:00 or 3:00 in the 14:50:06 9 afternoon and then she could go home earlier, would be her 14:50:10 10 comment, and she would never be expected to work on weekends. 14:50:13 11 Q. The jury has heard some testimony that Mr. and Mrs. Schell 14:50:18 12 had a wonderful relationship and your perception of that 14:50:26 13 relationship has been somewhat different than that. Do you 14:50:26 14 know why that is? 14:50:26 15 A. I think that if you didn't know, for instance, Rita really 14:50:28 16 well you may have believed that it was a wonderful 14:50:32 17 relationship because I think that's what she wanted you to 14:50:35 18 believe. It was a very closely guarded secret. And their 14:50:40 19 relationship may have been okay, but I believe that she did 14:50:43 20 what she needed to do not to upset him, and so she would be 14:50:47 21 home by 4:00 and she wouldn't work at nights and she wouldn't 14:50:51 22 work on weekends. 14:50:53 23 Q. Now, after the -- shortly after Mr. and Mrs. Schell's 14:51:02 24 death you were interviewed by a TV station; isn't that true? 14:51:05 25 A. Yes, it is, the day of the funeral. 1156 14:51:07 1 Q. And in April of 2000 you, in fact, sent an e-mail message 14:51:15 2 to Neva Hardy? 14:51:18 3 A. Uh-huh. 14:51:19 4 Q. Yes? 14:51:19 5 A. Yes, that is true. I'm sorry. 14:51:22 6 Q. And you've seen that e-mail message? 14:51:23 7 A. Yes, I have. 14:51:24 8 Q. And you recall in the interview you described in those 14:51:31 9 events the relationship between Mr. and Mrs. Schell as loving 14:51:37 10 and caring. Why didn't you tell them, the TV station, and 14:51:46 11 Neva Hardy in your e-mail -- why didn't you tell them what 14:51:49 12 you're telling us today about the relationship? 14:51:52 13 A. Because I was trying to protect her mother. Rita was very 14:51:55 14 close to her mother and throughout the funeral, the days that 14:52:00 15 followed the death and the funeral I kept just saying to the 14:52:04 16 other agents that I needed to do whatever it was that I 14:52:07 17 thought Rita would have wanted me to do. And so I tried to 14:52:11 18 protect her mother from how I really felt about Don. 14:52:18 19 Q. Now, do you have knowledge of stressful events that were 14:52:26 20 occurring in Mr. and Mrs. Schell's life shortly before their 14:52:32 21 death? 14:52:33 22 A. Yes. 14:52:35 23 Q. Was there anything at work that was stressful for Mr. and 14:52:40 24 Mrs. Schell? 14:52:41 25 A. Yes. 1157 14:52:41 1 Q. Tell us what that was. 14:52:43 2 A. What had happened is I represented a builder in Gillette 14:52:47 3 who had finished a spec home. The price of the home was 14:52:50 4 $318,000. It was a beautiful home and Rita mentioned one day 14:52:55 5 that she was going to call Vicky Wagner about this home. And 14:53:00 6 Barb and I were both just sort of shocked that she would call 14:53:05 7 Vicky Wagner. Vicky Wagner and her husband owned a company, 14:53:09 8 an oil company. I believe the name of it is Wellstar. And 14:53:13 9 Don would do -- would check wells for this particular 14:53:17 10 company. 14:53:18 11 Q. Let me interrupt you right there. In order for the ladies 14:53:21 12 and gentlemen of the jury to understand Mrs. Wagner, 14:53:24 13 Mr. Schell as a contractor in the oil field did work for 14:53:27 14 Mr. Wagner's company, true? 14:53:29 15 A. Correct. 14:53:30 16 Q. Okay. Go ahead with your story. 14:53:33 17 A. And he did a fair amount of work for him, so Mr. Wagner 14:53:37 18 was very valuable to Don because he did a lot of work for 14:53:40 19 him. But about two years earlier Rita had sold them a new 14:53:44 20 house without the sale of their existing home and they went 14:53:50 21 ahead and bought the new house, closed on it, even though 14:53:54 22 their other house had not sold, and financially they 14:53:58 23 apparently at least at the onset had the ability to do that. 14:54:02 24 But as time went on and the other house didn't sell 14:54:05 25 and the Wagners would become very irate with Rita, including 1158 14:54:12 1 Ron Wagner's father who had apparently provided the financing 14:54:16 2 for them to do this, and they were constantly on Rita. And 14:54:20 3 it had created quite a rift. And Don had been concerned 14:54:26 4 about it. 14:54:27 5 So when she decided she's going to sell them another 14:54:31 6 house under the same circumstances, they were both shocked 14:54:34 7 that she would, in fact, even get into that again and she 14:54:42 8 said, "Oh, it will be fine." 14:54:47 9 It was a big sale. It was a 300,000 sale and 14:54:51 10 ultimately she would list their 220,000 house. 14:54:54 11 So they did in fact make an offer. The sellers 14:54:58 12 counteroffered with what is called the 72-hour first right of 14:55:04 13 refusal because in their offer they had it conditioned upon 14:55:06 14 the sale of their existing property. And so the sellers 14:55:10 15 countered back with the 72-hour first right of refusal. 14:55:14 16 About three weeks after that, we got another offer 14:55:18 17 that was for more money, so the sellers accepted that offer 14:55:23 18 and gave the Wagners their 72-hour notice that they either 14:55:27 19 had to remove the condition of the sale of their other home 14:55:30 20 or lose the deal. 14:55:32 21 Q. Let me interrupt you right there. I want to make sure we 14:55:35 22 understand. We're talking about two different real estate 14:55:39 23 transactions that involved Mr. and Mrs. Wagner and 14:55:42 24 Mrs. Schell, true? 14:55:43 25 A. Yes. 1159 14:55:51 1 Q. The first real estate transaction that they had problems 14:55:55 2 with, do you remember when that was? 14:56:04 3 A. Probably in about '95. 14:56:04 4 Q. Mr. Schell was working for Mr. Wagner at that time? 14:56:04 5 A. He contracted well checking out for him. 14:56:07 6 Q. Did the problems that resulted in the first real estate 14:56:10 7 transaction develop into friction or problems with Mr. and 14:56:16 8 Mrs. Schell? 14:56:18 9 A. I don't know that I recall that they did. I know that the 14:56:20 10 Wagners ultimately listed their other house with someone else 14:56:26 11 at that time. 14:56:28 12 Q. So now the second real estate transaction that you're 14:56:32 13 telling the ladies and gentlemen of the jury about now, when 14:56:38 14 in relationship to February of '98 -- when was this 14:56:41 15 transaction taking place? 14:56:42 16 A. It started in September of '97 is when the offer was made. 14:56:45 17 Q. And again tell the ladies and gentlemen of the jury what 14:56:48 18 happened in this deal with Mr. and Mrs. Wagner. 14:56:51 19 A. What they did is they had -- now they have the 72 hours to 14:56:55 20 remove their condition or lose the deal. And they chose to 14:57:00 21 remove their condition which said we're going to buy this 14:57:04 22 $318,000 house with or without the sale of our home. 14:57:10 23 Q. And what happened? 14:57:12 24 A. When -- as closing date rolled around, they refused to 14:57:15 25 close. 1160 14:57:16 1 Q. Who refused to close? 14:57:17 2 A. The Wagners refused to close. 14:57:20 3 Q. Now, how did Mrs. Schell react to this event? 14:57:25 4 A. Well, she was really upset about it. It had put us in a 14:57:28 5 terrible position because we also had the listing, so of 14:57:33 6 course we had sellers who were very unhappy because they had 14:57:36 7 let a higher offer get away in order to honor the Wagner's 14:57:40 8 original offer. 14:57:42 9 So they were very upset about it and immediately 14:57:44 10 indicated they would sue the Wagners. 14:57:49 11 Q. They would sue? 14:57:50 12 A. The Wagners, which of course would involve Rita and I as 14:57:53 13 the listing and selling agents in the transaction. 14:57:56 14 Q. Now, do you know how Mr. Schell now reacted to this second 14:58:01 15 transaction? 14:58:03 16 A. I believe that he was very concerned about it because I 14:58:11 17 kept saying to Rita, "Are you sure they understood, Rita, 14:58:15 18 what they were doing when they removed that condition?" And 14:58:17 19 she maintained absolutely. Because at that point I was 14:58:22 20 willing to do whatever I needed to do in order to cover it up 14:58:27 21 and make it go away. 14:58:29 22 And she said that yes, they knew what they were 14:58:35 23 doing, they removed the contingency on that. And she 14:58:39 24 maintained that they had full knowledge, otherwise I would 14:58:43 25 have gone to the sellers and said, you know, "We screwed up 1161 14:58:46 1 and we're going to have to compensate you somehow." 14:58:51 2 And it continued to be a problem. I know in December 14:58:59 3 Wellstar had their Christmas party and Rita had always gone 14:59:04 4 to Wellstar's Christmas party and she refused to go. And 14:59:08 5 that was the first time I had known her to refuse to do 14:59:12 6 something. She told Don she was not going to the Christmas 14:59:15 7 party, and she told us the next day she stayed home and took 14:59:18 8 a bath and let Don go to the party. 14:59:21 9 Q. Let me stop you right there. During this transaction gone 14:59:24 10 bad with Mr. and Mrs. Wagner, the second transaction, was 14:59:26 11 Mr. Schell putting pressure on Mrs. Schell, do you know, to 14:59:30 12 try to make it work? 14:59:32 13 A. It appeared that he was. He kept saying -- I know at one 14:59:37 14 point one day she said to me, "Do you think they'll sue?" 14:59:42 15 And we weren't even having a discussion because it had gotten 14:59:46 16 where we wouldn't even talk about Wagners or the sellers in 14:59:51 17 the smoke room because it was very uncomfortable for 14:59:56 18 everyone. 14:59:58 19 And so I said, "Do you think who will sue, Rita?" 15:00:03 20 Because we weren't talking about this deal at all. And she 15:00:06 21 said, "The Tonns, do you really think they're going to sue?" 15:00:11 22 And I said, "Yes, I do think they're going to sue." 15:00:14 23 And I said, "Why, what makes you ask that?" 15:00:18 24 And she said, "Well, Don brought it up." 15:00:21 25 And I said, "Well, I think they're going to sue." 1162 15:00:24 1 And in fact, February 6th would have been the last piece of 15:00:27 2 correspondence that we would have gotten in reference to a 15:00:29 3 suit. 15:00:30 4 Q. February 6th of '98? 15:00:32 5 A. Yes. 15:00:33 6 Q. A few days before their deaths? 15:00:34 7 A. Correct. 15:00:37 8 Q. Were you -- strike that. 15:00:39 9 Were you aware whether or not Don felt -- Mr. Schell 15:00:43 10 felt he was going to lose the Wagner business over this deal? 15:00:48 11 A. Rita indicated that he felt he was concerned that he would 15:00:50 12 lose Wellstar's business over a lawsuit. 15:01:03 13 Q. And did a lawsuit result? 15:01:05 14 A. Ultimately long after Rita and Don's death they dropped 15:01:09 15 it. 15:01:10 16 Q. And the last piece of correspondence before the death was 15:01:12 17 February 6th of '98? 15:01:14 18 A. Yes. 15:01:19 19 Q. Rita didn't go to the Christmas party with Don that year, 15:01:24 20 1997? 15:01:25 21 A. She told us she told Don she was not going because of the 15:01:28 22 Wagner thing and she didn't want to be in the same room with 15:01:31 23 them. 15:01:40 24 Q. Were there any other problems that you were aware of 15:01:40 25 concerning Mr. Schell's job in terms of the oil business 1163 15:01:40 1 around this same time? 15:01:40 2 A. I know that one of the wells was down and -- because I 15:01:47 3 don't have a lot of knowledge about the oil business. Rita 15:01:49 4 was saying one of Don's wells were down and I said, "Well, 15:01:54 5 you know, what does that mean to Don?" 15:01:57 6 And she said, "Well, if the wells are down there's 15:02:00 7 nothing for him to check, and if there's nothing for him to 15:02:03 8 check then he isn't going to make any money." And Ron Wagner 15:02:06 9 had indicated to him that probably at the price of oil they 15:02:10 10 weren't going to fix that well. 15:02:12 11 Q. Again, did Mr. Schell seem to worry a lot about money? 15:02:16 12 A. I felt he did. 15:02:18 13 Q. When was the last time you saw Mrs. Schell before her 15:02:22 14 death? 15:02:24 15 A. It would have been on Thursday night. 15:02:27 16 Q. Thursday would have been the 12th? 15:02:29 17 A. Correct. 15:02:31 18 Q. And tell the ladies and gentlemen of the jury the 15:02:32 19 circumstances surrounding how you saw Mrs. Schell that night. 15:02:38 20 A. Rita was showing an individual named Mike Jamieson. About 15:02:45 21 probably three weeks earlier Mike was a client of mine and I 15:02:50 22 had to go to Denver, and so I asked Rita if she could go 15:02:54 23 ahead and show the Jamiesons for me that weekend. 15:02:58 24 Mrs. Jamieson was flying in from Ohio and it is as it always 15:03:02 25 goes, when you have to be out of town, that's the day that 1164 15:03:05 1 people are going to come. 15:03:10 2 And Mike Jamieson was the new mine manager for Triton 15:03:13 3 Coal Mine, so a very valuable customer and Rita was always 15:03:17 4 very helpful and said yes, she would be glad to show them. 15:03:21 5 So when I returned from Denver, she had shown them 15:03:25 6 several properties but had not been able to hone in on one 15:03:30 7 and write an offer. And so I spoke to the Jamiesons and they 15:03:36 8 felt very comfortable with Rita, felt she had done a very 15:03:40 9 good job and because of the Wagner deal and how she had 15:03:45 10 seemed to struggle with that, normally I would have taken 15:03:48 11 back the client when I returned, but I said, "Rita, go ahead 15:03:53 12 and keep showing them. You're doing a good job. I want you 15:03:56 13 to keep working with them." 15:03:59 14 And that would be something every agent looks for is 15:04:02 15 you try to get that client that's a mine manager in your back 15:04:10 16 pocket because you get all the incoming transferees. If Rita 15:04:13 17 continued to do a good job, Mike would say, "Call Rita at ERA 15:04:21 18 Boardwalk." So she was actually very happy to be able to 15:04:24 19 retain this client. 15:04:25 20 So she was showing him houses and that night 15:04:28 21 Mrs. Jamieson had returned back to Ohio. And that night 15:04:32 22 after -- afternoon and evening she was showing Mike Jamieson 15:04:37 23 two rural properties. 15:04:38 24 Q. Is this one of the unusual times when Rita -- excuse me, 15:04:42 25 Judge -- Mrs. Schell showed property after 4:00? 1165 15:04:46 1 A. Yes. 15:04:46 2 Q. When did she show Mr. Jamieson the property on the 12th? 15:04:52 3 A. I believe that she was showing him two rural properties 15:04:57 4 and I believe that her appointments were from 3:00 to 5:00 15:05:02 5 because there was one in one end of the county and one in the 15:05:05 6 other end of the county. Which normally you wouldn't need 15:05:08 7 two hours for two houses, but in Campbell County, if you're 15:05:14 8 at two opposite ends, it would take you two hours to show two 15:05:17 9 houses. 15:05:17 10 THE COURT: Mr. Gorman, I'm going to have to 15:05:20 11 interrupt you now. I thought you might finish with this but 15:05:23 12 it has gone a little longer than I thought into the recess 15:05:27 13 period. 15:05:28 14 We will take our afternoon recess and stand in recess 15:05:31 15 for about 15 minutes. 15:05:34 16 (Recess taken 3:05 p.m. until 3:25 p.m.) 15:26:31 17 THE COURT: Mrs. McGrath, let me remind you you're 15:26:36 18 still under oath. 15:26:38 19 Q. (BY MR. GORMAN) Mrs. McGrath, when we broke I believe you 15:26:41 20 were relating an event where Mrs. Schell on the night of 15:26:45 21 February 12th of 1998 was showing some rural property to 15:26:50 22 Mr. Jamieson, Mike Jamieson. 15:26:53 23 A. Correct. 15:26:54 24 Q. Do you recall? And that she began showing that property 15:26:58 25 about 3:00 p.m., I think you said? 1166 15:27:02 1 A. Right. 15:27:02 2 Q. Did she come back -- she -- did Mrs. Schell come back to 15:27:06 3 the office that night after showing the property to 15:27:13 4 Mr. Jamieson? 15:27:14 5 A. Yes, she did, when she was done showing -- and my closest 15:27:20 6 remembrance, it was about 5:30. And normally at that point 15:27:25 7 she would have left immediately and we were discussing 15:27:27 8 whether or not she had found anything. And I asked her if 15:27:31 9 she wanted to go back and have a cigarette and she said yes, 15:27:34 10 that she would. 15:27:35 11 Q. Now, Mr. Jamieson's wife, you said, was not with he and 15:27:40 12 Mrs. Schell that night, true? 15:27:43 13 A. No, she had returned to Ohio. 15:27:50 14 Q. And Mr. Jamieson was living where during this process? 15:27:50 15 A. He was living at the Holiday Inn and he had already 15:27:51 16 started work. 15:27:56 17 Q. Now, was it unusual -- first of all, you have said it was 15:28:00 18 unusual for Mrs. Schell to be showing property even until 15:28:03 19 5:30? 15:28:04 20 A. Right. 15:28:05 21 Q. Was it unusual for her to agree to come back to the office 15:28:09 22 with her after that late of time? 15:28:11 23 A. Yes, normally Rita would have left people in the parking 15:28:14 24 lot and headed home and at the very least, if she came up, 15:28:18 25 she would have just reported how the showing went and left. 1167 15:28:21 1 So it was unusual to come back and smoke a cigarette. 15:28:25 2 Q. And you believe she came back to the office around 6:00, 15:28:31 3 5:30, 6:00? 15:28:33 4 A. Probably around 5:30, quarter to 6:00 when she came back 15:28:38 5 to the office. 15:28:39 6 Q. What was Mrs. Schell's behavior when she came back to 15:28:43 7 smoke the cigarette? 15:28:46 8 A. She seemed very nervous. When Rita was nervous she would 15:28:51 9 twitch her nose up and down as if she was trying to move her 15:28:55 10 nose up and down by doing this. This night was the worst I 15:28:59 11 ever remembered. She would roll her cigarette, flip the 15:29:02 12 ashes, roll her cigarette, flip the ashes, not really smoke 15:29:06 13 the cigarette. She seemed very on edge. I had no idea why 15:29:12 14 except that it was beyond the 4:00, it was later than normal. 15:29:15 15 But she was very tense that night, very nervous. 15:29:24 16 Q. Now, do you know that Mrs. Tobin and Alyssa, the 15:29:27 17 granddaughter, Mr. and Mrs. Schell's granddaughter, were at 15:29:30 18 the Schell home during this time? 15:29:32 19 A. Yes, I was aware of that. 15:29:38 20 Q. Were you aware one of the reasons Mrs. Tobin and the baby 15:29:42 21 were in town was to help her dad get out of a depression he 15:29:50 22 was in? Are you aware of that? 15:29:52 23 A. No, I was not aware of that. 15:29:54 24 Q. Are you aware of that now? 15:29:57 25 A. I just probably speculated after this happened that that 1168 15:30:00 1 was probably the reason she had stayed longer. 15:30:03 2 Q. Do you know whether or not Mrs. Schell was under a lot of 15:30:06 3 stress at this point in her life? 15:30:07 4 A. I felt like she was. And this would be my own opinion. I 15:30:11 5 couldn't help but think poor Rita, she's got Deb and the baby 15:30:15 6 there and she's out showing property. And whenever Deb and 15:30:19 7 the baby were there she wouldn't smoke in the house, it was 15:30:23 8 cold, and she would have to go outside and smoke. 15:30:26 9 And my understanding was that Deb had a cold and so 15:30:29 10 she was really helping her with the baby and working longer 15:30:34 11 hours than she was used to. And I just remember thinking 15:30:38 12 poor Rita, she's got a lot on her plate right now. 15:30:41 13 Q. And Mr. Schell now you know was sick? 15:30:43 14 A. I didn't know that at the time. 15:30:49 15 Q. You do know that now? 15:30:56 16 A. Yes. 15:30:56 17 Q. We know from the police report which is a joint exhibit in 15:30:59 18 this case that Mrs. Schell may not have returned home that 15:31:02 19 night until around 9:15 p.m. 15:31:06 20 Do you know where she was going when she left the 15:31:09 21 office around 6:00 or 6:30? 15:31:12 22 A. My understanding was she was going home. 15:31:19 23 Q. Would it be unusual, very unusual for Mrs. Schell to 15:31:22 24 arrive home that late, 9:15 p.m.? 15:31:24 25 A. Yes, it would. 1169 15:31:25 1 Q. And you were not aware that Mr. Schell was suffering a 15:31:28 2 depression during this period of time? 15:31:30 3 A. No, I was not. 15:31:35 4 Q. Do you know whether or not Mrs. Schell discussed 15:31:37 5 Mr. Schell's February 1998 bout with depression with anyone 15:31:44 6 in your office? 15:31:47 7 A. I know now that she discussed it with Judy Lafferty. 15:31:52 8 Q. Is that something that Mrs. Lafferty has told you? 15:31:54 9 A. Yes. 15:31:55 10 Q. We don't need to understand that or we don't need to go 15:31:58 11 into that. Mrs. Lafferty can tell us that. 15:32:34 12 You never talked to Rita Schell again after the 12th? 15:32:34 13 A. No, I did not. 15:32:34 14 Q. Now, was Mrs. Schell scheduled to be taking floor duty on 15:32:34 15 Friday the 13th, if you know? 15:32:34 16 A. Yes, she was, in the morning. 15:32:34 17 Q. Could you tell the ladies and gentlemen of the jury what I 15:32:34 18 mean when I say floor duty. 15:32:34 19 A. What floor time is in a real estate office, you have a 15:32:34 20 designated person who takes all the calls that come in that 15:32:38 21 are not specific to an agent, so if somebody saw a sign in 15:32:39 22 the yard, they would call and ask about the house on whatever 15:32:42 23 address and the floor person takes those calls. 15:32:45 24 Q. Now, did Mrs. Schell show up for floor duty as she was 15:32:49 25 scheduled to do the morning of Friday the 13th of February? 1170 15:32:52 1 A. No, she did not. 15:32:53 2 Q. Did she have somebody cover for her? 15:32:55 3 A. I found out later that she had Judy -- I found out later 15:32:58 4 in the morning that she had Judy Lafferty cover for her that 15:33:01 5 morning. 15:33:02 6 Q. Do you know why Mrs. Lafferty was covering for Mrs. Schell 15:33:05 7 that morning? 15:33:07 8 A. I thought Judy told me that she was covering because Rita 15:33:10 9 had to take Don to the doctor. 15:33:18 10 Q. And it was your understanding that the doctor's 15:33:25 11 appointment was in the morning? 15:33:25 12 A. Yes. 15:33:25 13 Q. There will be some evidence in this case that, in fact, 15:33:25 14 the doctor's appointment was not scheduled until 2:45 p.m. 15:33:29 15 that afternoon. Is that the first time you've ever heard 15:33:31 16 that? 15:33:36 17 A. Yes, it is. 15:33:37 18 Q. Did there come a time Friday morning the 13th that you 15:33:39 19 became concerned? 15:33:40 20 A. There did. Later in the morning when it got to be about 15:33:43 21 11:00 and she didn't come in, and I made the comment to Judy 15:33:46 22 Lafferty that I was concerned about her. It was unlike Rita 15:33:50 23 not to come in when she was on floor. She was extremely 15:33:55 24 dependable. And even though she had asked someone to cover 15:33:59 25 for her, I started to have a real uncomfortable feeling. 1171 15:34:05 1 And at the same time, Rita had a transaction pending 15:34:08 2 with another agent in another office, and the other agent 15:34:12 3 kept calling wanting to know if we had heard anything. 15:34:16 4 Q. Is that Shirley Pettigrew? 15:34:18 5 A. Yes, it is. 15:34:18 6 Q. Okay. Go ahead. 15:34:20 7 A. And Shirley had indicated that Rita told her she would 15:34:24 8 know something Friday morning, and this was very unlike Rita 15:34:29 9 not to be there to take care of the deal herself. 15:34:32 10 And I kept saying to Shirley, "I'm real uncomfortable 15:34:35 11 because this is not like Rita." So probably starting late 15:34:44 12 that morning I kept saying to the secretary, "Yeah, call 15:34:47 13 Rita." And I was truly concerned. 15:34:50 14 Q. Why did you do that? Why did you have the secretary 15:34:53 15 continually call Mrs. Schell? 15:34:55 16 A. I wanted to know that she was all right. 15:35:07 17 Q. Were you concerned that she wasn't all right? 15:35:09 18 A. I was concerned that something had happened, yes. 15:35:11 19 Q. When did you find out what actually had happened? 15:35:16 20 A. That evening about -- probably about 5:30, my parents were 15:35:23 21 in Gillette and my mother kept calling me all afternoon 15:35:26 22 wanting to know what time I could go and eat supper. And 15:35:29 23 they're used to eating at 5:00 and finally at 6:00 after 15:35:32 24 numerous phone calls, I said, "Just meet me at the 15:35:37 25 Countryside Cafe. I will just meet you there." 1172 15:35:43 1 And so I went and ate dinner with them, and as I was 15:35:46 2 pulling back into my garage, my car phone rang and it was 15:35:50 3 Barb Trenholm. And Barb said, "Sherry, did Vern Brown get 15:35:55 4 ahold of you?" And I said no. And she said, "Tim's at his 15:36:00 5 house and they're trying to find out if you have any idea 15:36:04 6 where Rita might be." 15:36:05 7 And I said to Barb, "Just stay there and I'll come in 15:36:09 8 and get you. I know they're in that house, Barb." 15:36:12 9 And I went in and said to my folks, "I have to go 15:36:15 10 back to town because I believe one of my agents is dead in 15:36:20 11 their house." 15:36:22 12 And my mother said, "Do you want your dad to go with 15:36:26 13 you?" And I said no. 15:36:33 14 Q. Just take your time. 15:36:52 15 A. On my way into town I tried calling Vern Brown and I can't 15:36:55 16 remember if his line was busy or I talked to someone at his 15:36:59 17 house and he was going to call me back. Anyway, when I got 15:37:03 18 to town, my phone was ringing and it was Vern Brown. 15:37:06 19 And I said, "Vern, you've been trying to get ahold of 15:37:08 20 me?" 15:37:09 21 And he said, "Yes, I have." And I started talking as 15:37:12 22 fast as I could because I knew what he was going to tell me. 15:37:16 23 And I didn't want to hear it. 15:37:18 24 Q. And did Mr. Brown tell you about the deaths? 15:37:23 25 A. He said, "We found Rita." 1173 15:37:26 1 And I said, "She's in the house, isn't she, Vern?" 15:37:29 2 And he said, "Yes, she is." 15:37:30 3 And I said, "They're dead. They're all dead, aren't 15:37:32 4 they, Vern?" 15:37:34 5 And he said, "Yes, they are." 15:37:38 6 Q. Who is Vern Brown? 15:37:39 7 A. He's the neighbor and he's also the owner of a title 15:37:42 8 company, so I know him really well. And I said, "Don did it, 15:37:50 9 didn't he?" 15:37:51 10 And he said, "We don't know." 15:37:53 11 Q. Did this news that Mr. Brown gave to you -- did this 15:37:56 12 surprise you? 15:37:57 13 A. No, I wasn't surprised. I knew all day what had happened, 15:38:00 14 I think. 15:38:06 15 Q. What did you do after you had heard what had happened? 15:38:09 16 A. I was crying so hard I pulled into McCann Heights and sat 15:38:15 17 there and cried because I didn't know what to do. Then I 15:38:29 18 knew I had to go tell Barb Trenholm. And I knew that Barb 15:38:41 19 would have a really difficult time with it. 15:38:43 20 And then at Barb's we went ahead and called all the 15:38:47 21 agents and told them what had happened. 15:38:54 22 Q. Did you spend some time with Mrs. Schell's family after 15:38:56 23 the tragedy? 15:38:58 24 A. Yes, probably about 11:00 Joe Hallock called me and 15:39:03 25 asked -- 1174 15:39:04 1 Q. Who is Joe Hallock? 15:39:05 2 A. Joe Hallock is my attorney, but he's also an elder in the 15:39:09 3 church that Flo went to. And because they had just gotten a 15:39:17 4 new minister who really didn't know Flo, they had called Joe 15:39:18 5 Hallock up to her house to be with Rita's family. 15:39:21 6 And because Rita and Don were Catholic, but Rita's 15:39:25 7 family was not Catholic, it was an uncomfortable situation 15:39:31 8 because you have Joe Hallock and you have a priest there. 15:39:34 9 And Joe had called and asked if I would come over and talk to 15:39:37 10 the family and tell them what I knew. 15:39:39 11 And so I did go over and talk to the family. 15:39:42 12 Q. Who was there when you went to -- 15:39:44 13 A. There was Neva, Bobby and Flo. Tim was still down being 15:39:50 14 interrogated. 15:40:08 15 Q. Were you at some point asked to ask Father Ogg to assist 15:40:17 16 in some disagreements that developed between the families as 15:40:20 17 a result of -- 15:40:21 18 MR. FITZGERALD: Excuse me, Your Honor. It is 15:40:23 19 totally irrelevant. 15:40:24 20 THE COURT: Unless you can lay a foundation, I 15:40:27 21 concur. 15:40:29 22 MR. GORMAN: Could I have a minute, Judge? 15:40:30 23 THE COURT: Sure. 15:40:56 24 MR. GORMAN: I have nothing further. Thank you, 15:40:57 25 Mrs. McGrath. 1175 15:40:59 1 THE COURT: Mr. Fitzgerald. 2 CROSS-EXAMINATION 15:41:00 3 Q. (BY MR. FITZGERALD) Mrs. McGrath, I'm sorry you've had to 15:41:31 4 go through this. It must have been very hurtful to you to 15:41:34 5 have Rita killed? 15:41:36 6 A. Yes, it was. 15:41:47 7 Q. And sometimes when those things happen we will look and 15:41:49 8 see is there anything I could have done. Have you done that? 15:41:53 9 A. Yes, I have. 15:41:54 10 Q. And that in itself has to have been a painful process? 15:41:58 11 A. Yes. 15:42:06 12 Q. You always felt that Don was controlling, right? 15:42:09 13 A. Yes, I did. 15:42:16 14 Q. I will bet it must have been painful to look back and 15:42:20 15 think that you should have expressed concerns to Rita about 15:42:26 16 your concerns about Don? 15:42:27 17 A. Yes. 15:42:33 18 Q. What I need to do here is turn our attention -- as human 15:42:37 19 and painful and emotional as this experience has been for 15:42:40 20 you, we need to talk about some of the facts. 15:42:47 21 I mean, you've felt that Don was controlling 15:42:52 22 throughout, and I want to check and see if -- there's some 15:43:02 23 other things. You felt that Don was jealous throughout the 15:43:06 24 time you knew him, right? 15:43:07 25 A. That was my opinion, yes. 1176 15:43:09 1 Q. And you felt that he was possessive throughout the time 15:43:13 2 that you knew him? 15:43:16 3 A. Yes, that was my opinion. 15:43:21 4 Q. You felt Rita was more social if Don was not around 15:43:25 5 throughout the time you knew this couple, right? 15:43:27 6 A. I felt she acted more social, talked to more people when 15:43:31 7 Don wasn't around, yes. 15:43:32 8 Q. And that was true the whole time from '91 to '98; isn't 15:43:36 9 that true? 15:43:37 10 A. Yes. 15:43:37 11 Q. And the controlling was the same from '91 to '98 -- to 15:43:41 12 '98, right? 15:43:44 13 A. From '91 to '98 she had to be home at 4:00 and couldn't 15:43:47 14 work nights or weekends, so... 15:43:52 15 Q. Or, I mean -- what I'm trying to point out here is that 15:43:55 16 those are the facts upon which you base at least in part your 15:44:02 17 opinion that he was controlling, right? 15:44:04 18 A. Yes. 15:44:04 19 Q. And those facts were the same from '91 to '98, right? 15:44:08 20 A. Right. 15:44:09 21 THE COURT: Mr. Fitzgerald, for purposes of the 15:44:11 22 record let's be sure we add some last names to these. 15:44:15 23 MR. FITZGERALD: Yes, Your Honor. 15:44:18 24 Q. (BY MR. FITZGERALD) So let me inventory where I am. We 15:44:20 25 talked about the facts regarding controlling from '91 to '98, 1177 15:44:24 1 correct? 15:44:25 2 A. Uh-huh. 15:44:26 3 Q. And we've talked about the possessiveness issue from '91 15:44:30 4 to '98. He was possessive throughout that time, correct, he 15:44:34 5 being Don Schell? 15:44:35 6 A. Yes. 15:44:35 7 Q. And we talked about the control issue, that he was in your 15:44:40 8 opinion controlling throughout that period of time, '91 to 15:44:43 9 '98, correct? 15:44:44 10 A. Correct. 15:44:46 11 Q. Throughout that period of '91 to '98, at least to your 15:44:50 12 impression, there was this rule that Don imposed -- no matter 15:44:54 13 who imposed it, it was your impression it was imposed by Don, 15:44:58 14 that that was the same from '91 to '98; isn't that true? 15:45:02 15 A. Probably close to that period of time, yes. 15:45:06 16 Q. And you know that he had bouts of depression throughout 15:45:12 17 that period of time, correct? 15:45:13 18 A. No, I did not know that he had throughout that period of 15:45:17 19 time. Only the time soon after she went to work for me was 15:45:21 20 the only time I was aware of. 15:45:22 21 Q. Well, I'm going to say what I recall from the direct 15:45:35 22 examination and you can clarify. You know now? 15:45:37 23 A. Yes. 15:45:38 24 Q. So you know now that throughout '91 to '98 he had bouts of 15:45:44 25 depression? 1178 15:45:45 1 A. Yes. 15:45:45 2 Q. And you knew throughout that period of '91 to '98 from 15:45:50 3 what you saw Rita only went on one outing; in other words, 15:45:53 4 there weren't other outings between '91 to '98? 15:45:57 5 A. That she went on? 15:45:58 6 Q. That you know of? 15:45:59 7 A. Right. 15:46:01 8 Q. And you knew that there had been a bad real estate deal on 15:46:10 9 that first house sale you mentioned regarding the Wagners in 15:46:10 10 1995, right? 15:46:13 11 A. Right. 15:46:14 12 Q. So let's see if we've left anything out. You know that 15:46:33 13 one thing that was different was that Rita was going to 15:46:36 14 take -- you know this now -- Don to a different doctor; isn't 15:46:41 15 that true? 15:46:41 16 A. Yes, I know that now. 15:46:57 17 Q. You've had a chance to look at the e-mail that you sent. 15:47:00 18 Your e-mail address is sherrymc, for McGrath -- 15:47:11 19 sherrymc@vcn.com, correct? 15:47:12 20 A. Correct. 15:47:12 21 Q. And you know that you sent an e-mail on Wednesday, April 15:47:16 22 12th, at 3:31 p.m. to nhardy@mickey.gc.whecn.edu, correct? 15:47:31 23 A. I just did a reply so I assume that's correct. 15:47:34 24 Q. And the subject of your e-mail was Rita and Don, right? 15:47:38 25 A. Right. 1179 15:47:42 1 THE COURT: Schell. 15:47:43 2 MR. FITZGERALD: Don Schell, Your Honor. I will do 15:47:44 3 my best to do better at it. Kind of a first-name guy, so I 15:47:51 4 apologize. 15:47:51 5 Q. (BY MR. FITZGERALD) You described Don and Rita in that 15:47:53 6 e-mail -- let me talk with you about this. I heard your 15:48:00 7 explanation, and I want to make sure I'm clear, that in this 15:48:05 8 e-mail, an e-mail between you and Neva, you wanted to take 15:48:08 9 care of Flo, is that basically what you're saying? 15:48:11 10 A. At that point I still -- and I don't recall really 15:48:14 11 knowing -- I was very busy, I remember, when Neva called and 15:48:18 12 asked if I and others in the office would write letters about 15:48:22 13 Don and Rita's relationship for something about the drug 15:48:28 14 company. I really didn't know what she was talking about 15:48:32 15 specifically. 15:48:34 16 And so I said I would talk to some of the agents, so 15:48:43 17 I specifically went to Mike Hogan and Harry Kimbro because 15:48:47 18 they were two who I felt had a better handle on Don himself 15:48:50 19 because personally my personal friendship with Don wasn't 15:48:55 20 there. 15:48:56 21 So yes, not specifically for Flo but for the family. 15:49:07 22 I opted to write a letter that was to help them. I had no 15:49:11 23 idea what they were doing with it, correct. 15:49:13 24 Q. You didn't say untrue things in that e-mail, did you? 15:49:16 25 A. No. 1180 15:49:17 1 Q. You described Don and Rita Schell as a close couple, 15:49:25 2 correct? 15:49:25 3 A. Yes. 15:49:25 4 Q. You stated that they enjoyed each other's company? 15:49:28 5 A. It appeared so. 15:49:32 6 Q. You stated that Don and Rita Schell's children -- who are 15:49:38 7 Deb and Michael Schell, correct? 15:49:41 8 A. Correct. 15:49:42 9 Q. -- Deb Tobin, and their granddaughter, who was Alyssa, 15:49:46 10 were the most important thing in their lives; isn't that 15:49:51 11 true? 15:49:51 12 A. Correct. 15:49:52 13 Q. More important than working in a real estate office, 15:49:55 14 correct? 15:49:57 15 A. Correct. 15:49:59 16 Q. More important than pumping almost all your wells except 15:50:08 17 one, correct? I mean, you brought -- 15:50:14 18 A. I can't answer that. I don't know. 15:50:15 19 Q. You did mention that you heard something about Don was 15:50:17 20 concerned because maybe one of the wells was down and that 15:50:21 21 would hurt his income. You haven't been favored and no one 15:50:24 22 here has with the testimony of Mr. Wagner, his more or less 15:50:31 23 boss. I wanted to ask you if you know anything about how 15:50:34 24 many wells he had? If one were down, how big an impact was 15:50:37 25 it? You don't know? 1181 15:50:40 1 A. I don't have any idea. I don't know anything about it. 15:50:42 2 Q. You wouldn't want to speculate, would you, on the impact 15:50:44 3 of having one well down out of a given number would have on 15:50:49 4 Don's thoughts about his financial future, would you? 15:50:52 5 A. No. 15:50:52 6 Q. So let me go back to this question and make sure we're 15:50:55 7 clear. For Don Schell the most important thing in his life 15:51:00 8 was his children and his granddaughter, correct? 15:51:03 9 MR. GORMAN: Object to the question, Your Honor. It 15:51:05 10 is asking the witness to speculate. 15:51:07 11 A. I don't know. 15:51:07 12 THE COURT: Go ahead. You can answer the question if 15:51:09 13 you know. 15:51:10 14 A. No, I don't. 15:51:12 15 Q. (BY MR. FITZGERALD) Didn't you say that in this e-mail? 15:51:14 16 A. Well, it would have appeared that way, but that was my 15:51:20 17 perception at that time. I wouldn't speculate that that was 15:51:24 18 the most important thing in Don Schell's life. I don't know 15:51:27 19 that. 15:51:28 20 MR. FITZGERALD: May I approach the witness, Your 15:51:30 21 Honor? 15:51:30 22 THE COURT: Sure. 15:51:32 23 Q. (BY MR. FITZGERALD) Let me show you what this is. In 15:51:34 24 fact, why don't we put a number on it? We will mark it 15:51:37 25 number 61. 1182 15:52:19 1 I will show you what's been marked for identification 15:52:22 2 as Exhibit 61 here, and I'll step up here and direct your 15:52:25 3 attention to this place here. I want to make sure we're 15:52:28 4 clear you did say their children and their granddaughter were 15:52:31 5 the most important things in their lives? 15:52:34 6 A. Yes, I did say that. 15:52:35 7 Q. And they would have done anything for any one of them, in 15:52:37 8 other words, the children or grandchildren, correct? 15:52:40 9 A. I believe that's true. 15:52:41 10 Q. And while I'm here, Don and Rita Schell were also very 15:52:50 11 close to their son-in-law, correct? 15:52:50 12 A. Yes. 15:52:50 13 Q. And you reported that you never heard the normal in-law 15:52:50 14 complaints one typically hears, correct? 15:52:51 15 A. Correct. 15:52:56 16 Q. If you need to look at this at any point, let me know. It 15:53:00 17 is my only copy. I gave my other copy to Mr. Gorman. 15:53:07 18 This e-mail that is on Exhibit 61 was done 13 months 15:53:16 19 ago, more than a year ago, correct, April 12, 2000? 15:53:22 20 A. Correct, if that's what it says. Yes, correct. 15:53:38 21 Q. Now, Rita Schell and Don Schell shared extensively in each 15:53:41 22 other's work lives; isn't that true? 15:53:43 23 A. That is correct. 15:53:44 24 Q. They both worried about each other if either was working 15:53:46 25 long hours; isn't that true? 1183 15:53:49 1 A. Well, I believe Rita worried about Don. I may have 15:53:53 2 exaggerated that a little bit. I'm not sure. I don't know 15:53:57 3 that Don -- I don't know if Don worried about Rita, but I 15:54:01 4 know that Rita did worry about Don and his work and a well 15:54:07 5 being down. I know she worried about him. 15:54:09 6 Q. Well, let's see. If we're clear on this, in your e-mail 15:54:13 7 when you stated that both of them worried about each other if 15:54:17 8 they were working long hours, what you really meant to say 15:54:21 9 that was really only Rita? 15:54:23 10 A. Well, I don't know that I really meant to say that. I 15:54:26 11 mean, I don't know. 15:54:29 12 Q. You also said -- I will finish the sentence -- both of 15:54:35 13 them worried about each other if they were working long hours 15:54:38 14 or had stressful situations occurring in their workplaces, 15:54:41 15 correct? 15:54:42 16 A. And again, I know Rita worried about Don. 15:54:45 17 Q. But you're amending what this says now in terms of both of 15:54:50 18 them; in other words -- 15:54:51 19 A. I'm saying I don't know for a fact that Don worried about 15:54:54 20 Rita. I couldn't say that without dispute. 15:54:59 21 Q. Well, do you agree that you went on to say that often 15:55:04 22 spouses take an indifferent approach to the agent's stress 15:55:10 23 level and worry only about themselves and that this was not 15:55:12 24 the case with this couple? You said that, right? 15:55:17 25 A. If that's what it says, that's what I said. 1184 15:56:02 1 Q. You described in this e-mail that they frequently held 15:56:02 2 hands, correct? 15:56:02 3 A. Yes. 15:56:02 4 Q. You stated that Don and Rita Schell frequently laughed, 15:56:02 5 correct? 15:56:02 6 A. Uh-huh, if that's what it says. 15:56:02 7 Q. Well, let me make sure we're clear. I certainly don't 15:56:02 8 want to be putting any words in your mouth. We're now on the 15:56:02 9 second page of what's marked for identification as 61 here. 15:56:02 10 "Don and Rita were seen frequently holding hands and 15:56:02 11 laughing," correct? 15:56:04 12 A. Correct. 15:56:04 13 Q. "They sincerely seemed to truly enjoy one another's 15:56:06 14 company whether they were in church, on a quiet walk or at 15:56:10 15 the annual Christmas party." You said that, right? 15:56:13 16 A. Yes. 15:56:22 17 Q. You recognize that e-mail address at the top of Exhibit 61 15:56:27 18 as your e-mail address, correct? 15:56:29 19 A. Yes. 15:56:30 20 Q. And did you -- you made these comments at a time that was 15:56:34 21 closer to the time of the deaths, correct? 15:56:38 22 A. Yes, I did. 15:56:45 23 Q. Where is your e-mail, at home or at work? 15:56:48 24 A. I have it both places. This one I got at work. 15:56:50 25 Q. This would have been sent in the course of your work, 1185 15:56:53 1 correct? 15:56:53 2 A. Uh-huh, uh-huh. 15:56:54 3 Q. Okay. And a copy of it would be stored in your computer 15:56:59 4 somewhere, would it not? Even if you trash it, I mean, they 15:57:02 5 never go off of those hard drives, really, unless you throw 15:57:06 6 them away? 15:57:07 7 A. I have no idea whether or not I have it or not, or if it 15:57:10 8 is still there. I may have even a different computer. I 15:57:13 9 don't know. 15:57:14 10 Q. All right. Well -- 15:57:20 11 MR. FITZGERALD: I offer Exhibit 61. 15:57:22 12 THE COURT: Any objection? 15:57:23 13 MR. GORMAN: No objection, Judge. 15:57:24 14 THE COURT: Plaintiffs' Exhibit 61 may be received in 15:57:26 15 evidence. 15:57:26 16 MR. FITZGERALD: May I tender it to the clerk, Your 15:57:29 17 Honor? 15:57:29 18 THE COURT: Yes, you may. 19 (Plaintiff Exhibit 61 received in evidence.) 15:57:54 20 Q. (BY MR. FITZGERALD) In your direct examination you 15:57:56 21 testified to various understandings you had gleaned from 15:57:59 22 observations and conversations that you had heard and so 15:58:01 23 forth. 15:58:01 24 Let me ask you about Shirley Pettigrew's telephone 15:58:05 25 conversation with Rita Schell on Thursday evening, the 12th. 1186 15:58:14 1 Are we on the same page, you agree it was Thursday and it was 15:58:17 2 the 12th? 15:58:19 3 A. Correct. 15:58:20 4 Q. And the understanding you gleaned from that was that 15:58:24 5 nothing in that conversation indicated that there was 15:58:26 6 anything untoward about Rita Schell; is that correct? 15:58:33 7 A. That's right. 15:58:38 8 Q. As to that conversation that evening between Shirley 15:58:41 9 Pettigrew and Rita Schell, there was nothing that sounded any 15:58:44 10 alarm; isn't that correct? 15:58:46 11 A. That's what Shirley told me, yes. 15:58:55 12 Q. There wasn't anything to be alarmed about in Rita's 15:58:59 13 attitude that evening? 15:59:01 14 A. Shirley didn't observe anything. Shirley didn't work with 15:59:04 15 Rita every day. Someone else may have, I don't know. 15:59:06 16 Q. The reason I'm asking this is in order -- you talked with 15:59:12 17 Rita at the office that evening before she talked to Shirley 15:59:21 18 Pettigrew, correct? 15:59:21 19 A. That's correct. 15:59:21 20 Q. And you've described that Rita was crinkling her nose and 15:59:24 21 smoking up a storm or twiddling with the cigarette or 15:59:28 22 something along those lines. I don't mean to put words in 15:59:32 23 your mouth, but I'm trying to get a sense of this. 15:59:34 24 A. Yes, that is correct. 15:59:35 25 Q. But it was after that that Rita Schell spoke with Shirley 1187 15:59:39 1 Pettigrew, correct? 15:59:40 2 A. Correct. 15:59:40 3 Q. And it was that conversation that Shirley Pettigrew 15:59:45 4 related to you as having contained nothing untoward, no 15:59:48 5 alarm, nothing to be alarmed about in Rita's attitude, 15:59:52 6 correct? 15:59:52 7 A. She said she didn't sense anything. 16:00:07 8 Q. Let me make sure while we're in this area of your 16:00:10 9 testimony that we're clear on the time that you saw Rita 16:00:13 10 Schell. 16:00:24 11 I was trying to take notes during your testimony and 16:00:27 12 if I got it wrong, you can tell me. I thought you said you 16:00:30 13 saw her about 5:30. 16:00:32 14 A. No, I said between 5:30 and 6:00. 16:00:35 15 Q. Have you had a chance to read your deposition where you 16:00:38 16 said there it was between 6:00 and 6:30? 16:00:42 17 A. It was sometime between 5:30 and 6:30 that she returned to 16:00:47 18 the office. That she left I think is what they asked in the 16:00:51 19 deposition, when she left the office, and I believe that she 16:00:54 20 left the office before 6:30. 16:00:56 21 Q. Do you recall this question being asked and these answers 16:00:58 22 being given, "And she got back to that office" -- page 22, 16:01:04 23 line 7 -- "And she got back to the office that night at what 16:01:10 24 time?" 16:01:11 25 Your answer: "To the best of my recollection, I 1188 16:01:13 1 thought it was somewhere between 6:00 and 6:30." 16:01:17 2 Question: "And then she stayed to talk to you after 16:01:20 3 she got back to the office; is that right?" 16:01:23 4 Answer: "Yeah, for maybe another 15, 20 minutes at 16:01:26 5 the max." 16:01:32 6 Is that what you testified to in your deposition? 16:01:35 7 A. Probably, it was to the best of my recollection. Sometime 16:01:37 8 between 5:30 and 6:30 she returned to the office, smoked a 16:01:41 9 cigarette and then left. 16:01:43 10 MR. FITZGERALD: May I approach the witness, Your 16:01:45 11 Honor? 16:01:46 12 THE COURT: Yes, you may. 16:01:56 13 MR. FITZGERALD: Let me do this one thing. I will 16:01:57 14 step back here for a second. 16:02:04 15 Q. (BY MR. FITZGERALD) At a deposition there's a person like 16:02:06 16 our court reporter who performs diligently, correct? 16:02:10 17 A. Uh-huh. 16:02:11 18 Q. And this deposition was taken up in Gillette and it was 16:02:17 19 taken at your office; is that right? 16:02:22 20 A. No. 16:02:23 21 Q. Where was it taken, at the courthouse? 16:02:28 22 A. At the courthouse. 16:02:29 23 Q. Miss Westby was there? 16:02:30 24 A. Uh-huh. 16:02:31 25 Q. You recognize her -- well, she's not here. She's been 1189 16:02:35 1 here all week. 16:02:36 2 And Mr. Vickery appeared by telephone, correct? 16:02:39 3 A. Correct. 16:02:40 4 Q. And they asked you various questions and you gave the 16:02:45 5 answers to the best of your ability, correct? 16:02:47 6 A. Correct. 16:02:47 7 Q. So this is a question that Miss Westby asked you and I 16:02:53 8 just want to make sure we're clear: "And she got back to the 16:02:56 9 office that night at what time?" 16:02:59 10 And you said -- you answered that question about what 16:03:02 11 time she got back as, "She was back between 6:00 and 6:30," 16:03:08 12 right? 16:03:09 13 A. Uh-huh. 16:03:10 14 Q. And then she stayed after that time for another 15 or 20 16:03:13 15 minutes, right? 16:03:15 16 A. That's what I said, to the best of my recollection. 16:03:17 17 Q. And I don't mean to badger you, I'm just trying to make 16:03:19 18 sure we're clear on the times because I just want to make 16:03:23 19 sure we're real clear on this one. You don't know where she 16:03:37 20 went after she left your office that night, do you? 16:03:39 21 A. No, I do not. 16:03:40 22 Q. And there was a question about Mr. -- I'm sorry, the 16:03:44 23 buyer, do you remember the name? 16:03:45 24 A. Jamieson. 16:03:47 25 Q. Mr.? 1190 16:03:47 1 A. Jamieson. 16:03:48 2 Q. Yes, thank you. That Mr. Jamieson had been with 16:03:56 3 Mrs. Schell at a showing, correct -- 16:04:00 4 A. Correct. 16:04:01 5 Q. -- of a house? 16:04:02 6 A. Uh-huh. 16:04:02 7 Q. He was looking at a house to buy or was she looking at his 16:04:06 8 house to sell? 16:04:08 9 A. He was looking at a house to buy. 16:04:10 10 Q. And I suppose it is your testimony that that had already 16:04:13 11 occurred by the time of this conversation that evening; is 16:04:18 12 that right? 16:04:18 13 A. Right, because my understanding was that her appointment 16:04:22 14 to show him two rural properties was between 3:00 and 5:00. 16:04:29 15 Q. But you weren't out there so you don't know for sure if 16:04:32 16 that's when she showed him that property? 16:04:34 17 A. No, I wasn't out there. 16:04:36 18 Q. Okay. And then you were asked about where Mr. Jamieson 16:04:39 19 was staying, and the answer was the Holiday Inn, right? 16:04:43 20 A. Correct. 16:04:44 21 Q. Well, let's just level with each other. You're not 16:04:47 22 suggesting Rita Schell was at the Holiday Inn, are you? 16:04:50 23 A. No, I'm not suggesting that at all. 16:05:00 24 Q. Okay. All right. 16:05:01 25 Now, it was okay with Don Schell if she showed the 1191 16:05:12 1 house to Mr. Jamieson at night; isn't that true? 16:05:12 2 A. Well, she was showing. I have no idea if it was okay with 16:05:14 3 Don. She was showing. I don't know what his reaction was. 16:05:21 4 Q. Did you say in your deposition -- well, let me ask you 16:05:24 5 this. Were you asked, "How did you think he would have 16:05:29 6 viewed Rita showing homes to Mike Jamieson right around this 16:05:33 7 period at night?" 16:05:36 8 THE COURT: What's the page and line number? 16:05:38 9 MR. FITZGERALD: 47, line 14, Your Honor. Thank you. 16:05:43 10 Q. (BY MR. FITZGERALD) And you said you didn't have any 16:05:46 11 idea, but you didn't think it really mattered to Don. Didn't 16:05:50 12 you testify to that? 16:05:52 13 A. There were certain clients that I don't know if Rita took 16:05:55 14 a stronger case because it was a higher paying deal or 16:06:00 15 whatever, but I don't know that that mattered to him 16:06:03 16 specifically that it was just because it was a man. I think 16:06:07 17 that was the way the question was worded. And I don't know 16:06:11 18 that that mattered to him, that it was a man or woman. It 16:06:15 19 was just that it was after -- it was in the evening. 16:06:18 20 MR. GORMAN: I think for completeness, too, as 16:06:21 21 Mr. Vickery has pointed out, Mr. Fitzgerald read a very small 16:06:25 22 portion of her answer. 16:06:26 23 MR. FITZGERALD: I would be glad to read the whole 16:06:28 24 thing. 47, line 14: "How do you think he would have viewed 16:06:34 25 Rita showing homes to Mike Jamieson right around this time 1192 16:06:38 1 period at night?" 16:06:41 2 Answer on page 47, line 21, "You know, I don't have 16:06:44 3 any idea. I don't think it really mattered to Don. He just 16:06:49 4 didn't like her out after -- he liked her to come home after 16:06:53 5 4:00. So I don't know if it would have mattered if it was a 16:06:56 6 man or if it was a woman or anything. The sense I got was 16:07:00 7 that if it took away his time with her, then he didn't like 16:07:05 8 anything that kind of interfered with his time with Rita." 16:07:08 9 A. And that would be my feeling, that it wasn't that it was a 16:07:10 10 man, it was that she was out showing. 16:07:12 11 Q. (BY MR. FITZGERALD) And you didn't correct Miss Westby 16:07:15 12 when she used the term "at night," did you? 16:07:23 13 A. I guess I don't understand the comment or the statement or 16:07:28 14 whatever. 16:07:28 15 Q. Okay. Well, on this issue of showing homes and being a 16:07:44 16 real estate agent and so forth, the salaries are all based on 16:07:49 17 commission? 16:07:50 18 A. Correct. 16:08:02 19 Q. And the way your business is set up, would it be correct 16:08:05 20 to presume that you would profit to some degree on deals that 16:08:10 21 Rita Schell closed? 16:08:15 22 A. I personally don't necessarily profit. In the real estate 16:08:21 23 business you say that there's a certain amount of desk costs 16:08:24 24 required from each agent in a real estate agency such as mine 16:08:29 25 where you -- the broker sits down at the beginning of the 1193 16:08:32 1 year and determines approximately what each agent needs to 16:08:36 2 make each month to pay overhead. And then if desk costs are 16:08:44 3 $2,000 a month, then before you can consider that agent 16:08:49 4 profitable to the company, then they have to make at least 16:08:53 5 2,000 a month for the company. 16:08:57 6 Q. Well, as the broker and the owner of the business, it is 16:09:06 7 to your financial advantage to have a person like Rita Schell 16:09:10 8 working and closing deals; isn't that true? 16:09:21 9 A. Well, that's not as cut and dried. Probably the whole 16:09:24 10 time Rita worked for me she did not make money for me other 16:09:28 11 than what the average desk cost per agent was. So I don't -- 16:09:33 12 I'm not sure where you're leading with the question, but Rita 16:09:37 13 was never profitable to the company, if that's the question. 16:09:41 14 Q. Why did you keep her? 16:09:43 15 A. Because I'm a very loyal person and I'm always trying to 16:09:48 16 give the agent an opportunity to be successful. 16:09:53 17 Q. And when she took off from work at 4:00, was that 16:10:06 18 acceptable to you? 16:10:07 19 A. I didn't like it, but I tolerated it. 16:10:23 20 Q. By the way, Rita never said a word that was critical of 16:10:26 21 Don's behavior, is that true? 16:10:28 22 A. No. 16:10:29 23 Q. It's not true or what I said is true? 16:10:32 24 A. No, not that I recall. She never said anything about Don. 16:11:20 25 Q. Were you aware that Rita had gone to Deadwood with -- and 1194 16:11:20 1 I don't mean to use this term in the sense it is sometimes 16:11:20 2 understood -- with the girls, meaning the women in your 16:11:20 3 office? 16:11:20 4 A. With two other women on one occasion, yes. 16:11:20 5 Q. So she went to Deadwood without Don? 16:11:20 6 A. Correct. 16:11:27 7 Q. I want to make sure we're clear on this deal with 16:11:29 8 Mr. Wagner. I thought you testified on direct that a lawsuit 16:11:32 9 ensued, is that right, or did you not? 16:11:35 10 A. A lawsuit was pending. I don't know -- and then at some 16:11:38 11 point it just went away. I don't know whatever happened to 16:11:43 12 the end of it. I have never received any other information. 16:11:46 13 Q. Are you saying it was filed in court? 16:11:47 14 A. I know that at the time of Rita's death it was still going 16:11:51 15 back and forth and they were gathering information. I don't 16:11:54 16 know at what point that it was ever filed or if they actually 16:11:57 17 filed it or not. I have no idea where they left it. But 16:12:05 18 then it -- the house was sold to another party and I know at 16:12:05 19 that point I believe that they just let it go away and 16:12:07 20 dropped it. 16:12:24 21 Q. Now on this deal in 1995 with the Wagners, were you angry 16:12:28 22 with Rita about that? 16:12:29 23 A. No, not at all. 16:12:30 24 Q. Were you angry with what happened in 1998? 16:12:33 25 A. I remember being a little upset because I was concerned 1195 16:12:36 1 because of who they were that she maybe didn't make it clear 16:12:39 2 to them if you drop this contingency you must be willing to 16:12:44 3 close. And after she assured me that yes, she had told them 16:12:47 4 that numerous times, then no, I wasn't angry with her over 16:12:51 5 it. 16:12:53 6 Q. Well, let me turn my attention a little bit to Mr. Wagner. 16:12:56 7 First of all, you didn't go to the Christmas party at 16:13:00 8 Wellstar, did you, in '97? 16:13:03 9 A. No, I did not. 16:13:04 10 Q. So you wouldn't know what Rita wore if she did go? 16:13:09 11 A. No. 16:13:13 12 Q. But you did refer to Mr. Wagner because he is the person 16:13:17 13 for whom the real estate didn't work out as well as the 16:13:21 14 person who had some control over these wells that Don worked 16:13:28 15 for, right? I mean, he was Don's boss essentially, right? 16:13:34 16 A. I guess. I mean, I can't answer that. I don't know what 16:13:39 17 exactly the -- 16:13:40 18 Q. Well, I had the impression from your direct examination 16:13:43 19 that you were implying that Don would be worried about losing 16:13:48 20 his job because Mr. Wagner had control over it and Mr. Wagner 16:13:52 21 had had a bad real estate deal through your offices. Wasn't 16:13:56 22 that -- that's essentially what you're saying, right? 16:13:59 23 A. Right, yes. 16:14:00 24 Q. Have you ever spoken to Mr. Wagner about any assurances 16:14:03 25 that he gave to Don Schell that he could take off that week 1196 16:14:06 1 as much time as he wanted and that he would have a job 16:14:13 2 waiting for him when he came back? 16:14:16 3 A. No, I've never spoken to Ron Wagner about Don Schell at 16:14:19 4 all. 16:14:52 5 MR. FITZGERALD: No further questions. 16:14:55 6 THE COURT: Redirect? 16:14:56 7 MR. GORMAN: Very briefly. 8 REDIRECT EXAMINATION 16:14:58 9 Q. (BY MR. GORMAN) Mrs. Schell was your friend? 16:15:00 10 A. Yes, she was. 16:15:00 11 Q. And you described yourself with Mr. Fitzgerald as a loyal 16:15:03 12 person? 16:15:03 13 A. Yes. 16:15:04 14 Q. And you considered yourself with Rita to be part of that 16:15:07 15 being a loyal person, true? 16:15:09 16 A. Yes, I did. 16:15:10 17 Q. Now, tell the ladies and gentlemen of the jury again why 16:15:20 18 you wrote the e-mail that was in as Plaintiff's Exhibit 61. 16:15:24 19 A. Because her sister asked me to do it and that's the only 16:15:27 20 reason that I did it. 16:15:29 21 Q. Mr. Fitzgerald asked you about a trip to Deadwood that 16:15:33 22 Mrs. Schell and two of the other persons from your office 16:15:37 23 took. Do you remember that? 16:15:38 24 A. Yes. 16:15:40 25 Q. Mrs. Schell didn't go with -- Mrs. Schell didn't go with 1197 16:15:44 1 Don Schell, true? 16:15:46 2 A. Correct. 16:15:46 3 Q. But she had to be home before 4:00, true? 16:15:49 4 A. She said she would go as long as they promised her they 16:15:53 5 would be home by 3:00 and they were. 16:15:56 6 MR. GORMAN: I have nothing further, Mrs. McGrath. 16:15:58 7 Thank you. 16:15:58 8 THE COURT: Anything else, Mr. Fitzgerald? 16:16:01 9 MR. FITZGERALD: Just briefly inquire about this. 10 RECROSS-EXAMINATION 16:16:03 11 Q. (BY MR. FITZGERALD) Rita Schell was a strong person who 16:16:11 12 could make up her own mind about what time to be home, wasn't 16:16:15 13 she? 16:16:16 14 A. Yes. 16:16:19 15 MR. FITZGERALD: Okay. Thank you. 16:16:20 16 MR. GORMAN: Nothing further and we would ask that 16:16:22 17 Mrs. McGrath be excused, Your Honor. 16:16:24 18 THE COURT: Any objection from plaintiffs? 16:16:25 19 MR. FITZGERALD: No, that's fine, Your Honor. 16:16:26 20 THE COURT: Thank you very much, Mrs. McGrath. 16:16:28 21 You're excused from further attendance at this trial and may 16:16:31 22 return to your home. 16:16:37 23 MR. GORMAN: We would call Mrs. Judy Lafferty to the 16:16:39 24 stand now, Your Honor. 16:20:54 25 MR. GORMAN: Come right up here, Mrs. Lafferty, so 1198 16:20:54 1 the clerk can give you an oath and then you can go over to 16:20:54 2 the witness box. 16:20:54 3 (Witness sworn.) 16:20:54 4 THE CLERK: Speak into this so the microphone will 16:20:54 5 pick you up and please state your name and spell it for the 16:20:54 6 record. 16:20:54 7 THE WITNESS: Judith Lafferty, L A F F E R T Y. 8 9 JUDITH LAFFERTY, 10 called as a witness on behalf of the Defendant, being first 11 duly sworn, testified as follows: 12 DIRECT EXAMINATION 16:20:54 13 Q. (BY MR. GORMAN) Mrs. Lafferty, Judge Brimmer sometimes in 16:20:54 14 his courtroom says use that mike and make like a rock singer. 16:20:54 15 So let's try to communicate with the ladies and gentlemen of 16:20:54 16 the jury and speak up because sometimes our microphone goes 16:20:54 17 off, okay. 16:20:54 18 Tell the ladies and gentlemen of the jury where you 16:20:54 19 live, Mrs. Lafferty. 16:20:54 20 A. Colorado Springs, Colorado. 16:20:54 21 Q. And when did you move to Colorado Springs? 16:20:54 22 A. 1998. 16:20:54 23 Q. Where did you live before you lived in Colorado Springs? 16:20:54 24 A. Gillette, Wyoming. 16:20:54 25 Q. And for how long did you live in Gillette? 1199 16:20:54 1 A. From 1990. 16:20:54 2 Q. Until you moved? 16:20:54 3 A. Until 1998. 16:20:54 4 Q. Okay. You're married? 16:20:54 5 A. Yes. 16:20:54 6 Q. Mr. Lafferty is back here in the courtroom with us. Is 16:20:54 7 that your husband? 16:20:54 8 A. Yes. 16:20:54 9 Q. How long have you and Mr. Lafferty been married? 16:20:54 10 A. Thirty-one years, almost 31 years. 16:20:54 11 Q. Do you have children? 16:20:54 12 A. Yes. 16:20:54 13 Q. Are they all grown? 16:20:54 14 A. Yes. 16:20:54 15 Q. What does your husband do? 16:20:54 16 A. He's retired now. He was an accountant for Peabody Coal 16:20:54 17 Company for about 25 years. 16:20:54 18 Q. Are you employed? 16:20:54 19 A. No, I retired when he retired. 16:20:54 20 Q. And what was your employment when you retired? 16:20:54 21 A. I was a realtor with ERA Boardwalk Real Estate in 16:20:54 22 Gillette, Wyoming. 16:20:54 23 Q. Did you work with Mrs. McGrath who just testified here? 16:20:54 24 Was she your employer? 16:20:54 25 A. She was the broker for that company, yes. 1200 16:20:54 1 Q. Did you also work during that period of time with 16:20:54 2 Mrs. Schell? 16:20:54 3 A. Yes, I did. 16:20:54 4 Q. When did you meet Rita Schell? 16:20:54 5 A. In -- I believe it was spring of '92 when I started 16:20:54 6 working there. 16:20:54 7 Q. Did you know her before 1992? 16:20:54 8 A. No, I did not. 16:20:54 9 Q. What type of employment or profession did you have before 16:20:54 10 you went into real estate? 16:20:54 11 A. For 15 years when we lived in St. Louis I was a social 16:20:54 12 worker at St. Louis Developmental Disabilities Treatment 16:20:54 13 Center. 16:20:54 14 Q. You worked there how long? 16:20:54 15 A. Fifteen years. 16:20:54 16 Q. During the time you worked there were several of the 16:20:54 17 people there on antidepressant medications? 16:20:54 18 A. Several of my clients were on either antidepressants or 16:20:54 19 other psychotropic medication. 16:20:54 20 Q. Let me talk to you a little bit about Mrs. Schell. Was 16:21:10 21 Mrs. Schell a good friend of yours? 16:21:10 22 A. I considered her a good friend as far as our work. 16:21:10 23 Q. How much time would you say you spent with Mrs. Schell 16:21:10 24 during the week? 16:21:10 25 A. Well, we were at work quite a few hours, and whenever 1201 16:21:10 1 something else wasn't taking our time, we were generally back 16:21:10 2 in the break room together. 16:21:10 3 Q. We heard from Mrs. McGrath that there was a smoke room in 16:21:10 4 the office, so were you a smoker? 16:21:10 5 A. At that time I was, yes. 16:21:10 6 Q. You're a reformed smoker now? 16:21:10 7 A. Yes, sir. 16:21:10 8 Q. During the week can you put -- give us your best estimate 16:21:10 9 of how much time during the day you and Rita -- you and 16:21:10 10 Mrs. Schell would be together at the office? 16:21:19 11 A. Five or six hours. We were usually -- we ran in and out. 16:21:22 12 You do as a realtor. 16:21:24 13 Q. I understand. 16:21:24 14 A. But five or six hours at least. 16:21:26 15 Q. Now, you were good friends with Mrs. Schell? 16:21:30 16 A. I liked her very much, yes. 16:21:31 17 Q. How much time did you spend with Mrs. Schell outside of 16:21:34 18 the work environment? 16:21:36 19 A. Very little. Rita did not do a lot of the things outside 16:21:41 20 of work with the group as the rest of us did. 16:21:52 21 Q. Would you characterize Rita as being a very private 16:21:54 22 person? 16:21:55 23 A. Extremely. 16:21:56 24 Q. Did your friend, Rita Schell, ever talk to you about in 16:21:59 25 any detail her relationship with Don Schell? 1202 16:22:03 1 A. No, she did not. 16:22:08 2 Q. Did your friend Mrs. Schell discuss Mr. Schell's history 16:22:13 3 of depression with you? 16:22:16 4 A. The first time she mentioned that to me I was in the -- it 16:22:24 5 was in the late summer or early fall, would have been '97. 16:22:34 6 When she -- we were talking about reading. I read a great 16:22:37 7 deal. And evidently Don did, too. 16:22:40 8 And she said that he was having problems with 16:22:45 9 depression again, that he had had several years before, and 16:22:51 10 that with winter coming it was, she felt, harder for him and 16:22:55 11 that he would spend a good deal of time at home reading. And 16:23:02 12 I started bringing in books from my library, sacks full for 16:23:08 13 him and he began to read through my library. I would bring 16:23:12 14 them in to her and she would take them home, so much so I was 16:23:16 15 actually keeping a list I brought him each time so I wouldn't 16:23:20 16 duplicate. 16:23:20 17 Q. This is the late summer, early fall of 1997. You 16:23:25 18 understand Mr. and Mrs. Schell died then in February of 1998? 16:23:28 19 A. Yes. 16:23:29 20 Q. So it was that summer of 1997, early fall that Rita told 16:23:34 21 you at that point that Mr. Schell was in a depression? 16:23:40 22 A. That she felt he was beginning to have some problems 16:23:40 23 again. 16:23:52 24 Q. Did Mrs. Schell ever confide in you that Mr. Schell had in 16:23:56 25 fact suffered two or three or four episodes of depression 1203 16:24:00 1 prior to 1992? 16:24:02 2 A. No, she did not. 16:24:03 3 Q. Were you ever aware of Mr. Schell being treated for 16:24:06 4 depression during 1990? 16:24:09 5 A. I did not know the year. Rita had said to me for several 16:24:19 6 months one year he didn't want to leave the house and had 16:24:22 7 been very much and wanted to stay in one room of the house, 16:24:35 8 but she did not say for how long that had been or what year 16:24:39 9 or anything. 16:24:40 10 Q. When that was? 16:24:41 11 A. No, she did not. 16:24:42 12 Q. Did your friend Rita Schell ever tell you about the 16:24:45 13 extended periods of time when Don was treated between 1991 16:24:49 14 and 1993 by both psychiatrists and psychologists? 16:24:55 15 A. No, she did not. 16:24:57 16 Q. Did your friend Rita Schell ever tell you about Don 16:25:02 17 seeking counseling for mental health issues with Sister Agnes 16:25:09 18 Claire of the local Catholic church there for a period from 16:25:13 19 1993 to 1996? 16:25:15 20 A. No, she did not. 16:25:24 21 Q. Do you know a person by the name of Dee Powers? 16:25:28 22 A. I have met her once or twice briefly. She worked with my 16:25:31 23 husband. 16:25:36 24 Q. And was Dee Powers a neighbor of Mr. and Mrs. Schell at 16:25:40 25 one time? 1204 16:25:41 1 A. It is my understanding that she was a neighbor of several 16:25:45 2 years ago, to my -- best of my knowledge. 16:25:49 3 Q. Do you know if she was a neighbor at the time Mr. and 16:25:53 4 Mrs. Schell died? 16:25:54 5 A. No. 16:25:55 6 Q. She had moved by then? 16:25:56 7 A. It is my understanding that she had moved quite some time 16:26:00 8 before. 16:26:00 9 Q. Do you know why Miss Powers moved away? 16:26:03 10 MR. FITZGERALD: Excuse me, Your Honor. Calls for 16:26:05 11 hearsay. 16:26:09 12 MR. GORMAN: I didn't ask. I wanted to know if she 16:26:11 13 knew why. 16:26:12 14 THE COURT: Overruled. 16:26:13 15 Q. (BY MR. GORMAN) Do you know why Miss Powers moved away? 16:26:16 16 THE COURT: Yes or no? 16:26:24 17 A. No. 16:26:25 18 Q. (BY MR. GORMAN) Did you have the opportunity during the 16:26:28 19 time that you knew Mr. and Mrs. Schell to observe their 16:26:31 20 relationship? 16:26:34 21 A. I only saw Rita and Don together at functions held for our 16:26:41 22 office like Christmas parties and that kind of thing. We 16:26:47 23 would see -- I would see them briefly together. 16:26:53 24 Q. During those times that you saw Mr. and Mrs. Schell 16:26:55 25 together how would you describe Mr. Schell? 1205 16:27:01 1 A. Pleasant. 16:27:02 2 Q. Was Mr. Schell controlling? 16:27:13 3 A. Not during those times. He was pleasant. 16:27:18 4 Q. Were there other times when you saw Mr. Schell that you 16:27:20 5 made the observation that he was controlling or possessive? 16:27:25 6 A. In person -- are you asking me in person with Don there? 16:27:29 7 Q. I'm talking to you based upon your knowledge of 16:27:32 8 Mrs. Schell and Mr. and Mrs. Schell together. 16:27:35 9 MR. FITZGERALD: Excuse me, Your Honor. Foundation 16:27:37 10 has to be laid based upon the rule that she's doing this from 16:27:40 11 some personal observation, personal knowledge, information 16:27:43 12 that she came by personally. Can't be hearsay. 16:27:46 13 THE COURT: I think we're getting to that. So long 16:27:49 14 as you lay that, that's fine. Go ahead. 16:27:52 15 Q. (BY MR. GORMAN) I want to talk only about your personal 16:27:53 16 perception. 16:27:55 17 A. My personal perception in dealing for those years with 16:28:00 18 Rita is that for -- that something was definitely controlling 16:28:14 19 her life in that she felt absolutely compelled she must be 16:28:22 20 home by a certain time of the day. 16:28:26 21 As I worked with her, say around 2:30, 3:00 and she 16:28:32 22 had like contracts or something pending that was going to 16:28:35 23 take time, you could suddenly see her all of a sudden 16:28:42 24 watching her watch. She would get this very worried look on 16:28:46 25 her face. You could begin to see the anxiety in her eyes. 1206 16:28:50 1 Her motions would become more jerky and her stride faster. 16:28:56 2 And you could see that this was -- you could just see the 16:29:00 3 tension building in her. 16:29:03 4 And the outcome was generally that any of us that 16:29:06 5 were around would then try to help her get done so that she 16:29:09 6 could get out of there. Because Rita was such a kind, gentle 16:29:15 7 soul, you just couldn't stand to see her like this, so you 16:29:18 8 always wanted to help so she would get out. It was like "I 16:29:21 9 must get home. Don will want me home. It is getting close 16:29:26 10 to 4:00." 16:29:26 11 Q. And that was my next question. Was it your 16:29:29 12 understanding -- Mrs. McGrath just told us about a similar 16:29:34 13 observation she made that Mrs. Schell always had to be home 16:29:38 14 by 4:00 in the afternoon. Was that consistent with what 16:29:42 15 you -- 16:29:42 16 A. It was very consistent with all -- everything she did was 16:29:45 17 aimed toward that. 16:29:48 18 Q. And you say that if she approached that time, she began to 16:29:53 19 react how? 16:29:56 20 A. Very -- she would get very tense and very concerned and 16:30:00 21 her eyes would just look -- you could just see the anxiety 16:30:06 22 building in her that as the time crept closer, if she 16:30:11 23 couldn't just stop what she was doing. 16:30:14 24 Q. And other people then would pick up and help her? 16:30:17 25 A. We would generally try to help her in any way we could. 1207 16:30:20 1 Q. Did you ever talk to Mrs. Schell about this part of her 16:30:27 2 life? 16:30:27 3 A. No, no. Rita, she never offered anything except she had 16:30:28 4 to get home. 16:30:31 5 Q. Do you know anything about -- or what, if anything, do you 16:30:35 6 know about a rule at the Schell home that you did not call 16:30:38 7 that house after 5 -- 9:00 -- excuse me -- or Don became 16:30:44 8 upset? 16:30:45 9 A. You know, I don't know where I first heard that stated. I 16:30:52 10 just know that shortly after I went to work at Boardwalk 16:30:56 11 Realty that I knew this. And it just was -- it is just 16:31:01 12 something we didn't do. 16:31:03 13 Q. You knew that you would not -- were not supposed to call 16:31:06 14 the Schell home after 9:00? 16:31:07 15 A. Right, but I cannot tell you who told me that. 16:31:10 16 Q. Did you ever talk to Rita about -- Mrs. Schell about that? 16:31:13 17 A. No, I did not. 16:31:15 18 Q. Did you as her friend ever -- did you ever see Mrs. Schell 16:31:22 19 other than these parties that -- real estate parties that you 16:31:26 20 had, did you ever see them do anything together? 16:31:31 21 A. Excuse me? 16:31:32 22 Q. Maybe that's a bad question. Did you ever go anywhere 16:31:36 23 with Mr. and Mrs. Schell outside of work? 16:31:38 24 A. No, not the two of them. 16:31:46 25 Q. We heard about an event when Mrs. Schell went to Deadwood 1208 16:31:50 1 and Mrs. McGrath told us about that. Were you one of the 16:31:54 2 people who went with Mrs. Schell to Deadwood? 16:31:58 3 A. Yes, I was. 16:32:00 4 Q. Did Mrs. Schell on that outing with the girls, as 16:32:06 5 Mr. Fitzgerald couched it -- did Mrs. Schell have to be home 16:32:10 6 by 4:00? 16:32:11 7 A. When we talked her into going with us, the -- it was 16:32:15 8 clearly understood -- I mean, she clearly stated that we must 16:32:19 9 be back at the office by 4:00 so that if any calls had come 16:32:23 10 in, she could get them done because, you know, she could 16:32:27 11 answer them because she had to be home. 16:32:33 12 Q. Did Mrs. Schell even tell Don Schell she went to Deadwood 16:32:36 13 that day? 16:32:37 14 A. I understood at the time that she didn't. 16:32:41 15 Q. And that understanding came from Mrs. Schell, true? 16:32:45 16 A. From the way things were said, yes. 16:32:58 17 Q. I want to clear this up about Dee Powers. She was a 16:33:00 18 neighbor of Mr. and Mrs. Schell, true? 16:33:06 19 A. That's correct. 16:33:07 20 MR. FITZGERALD: Asked and answered. 16:33:08 21 THE COURT: Overruled. Go ahead. 16:33:09 22 Q. (BY MR. GORMAN) I asked you whether or not you knew why 16:33:12 23 she moved away and you said you did not know. 16:33:15 24 A. In my understanding I don't know the total reason. 16:33:18 25 Q. Okay. And that's what I want to get. Do you have an 1209 16:33:20 1 understanding of why Mrs. Powers moved away, for whatever 16:33:26 2 reason? 16:33:27 3 MR. FITZGERALD: Lack of foundation, calls for 16:33:28 4 hearsay. 16:33:29 5 THE COURT: Overruled. She can answer yes or no. If 16:33:35 6 you have an understanding, you can answer that yes or no and 16:33:38 7 then he can go on and ask another question and we'll see if 16:33:41 8 it is appropriate. 16:33:42 9 A. Yes. 16:33:43 10 Q. (BY MR. GORMAN) Okay. What is your understanding? 16:33:45 11 A. My understanding is -- 16:33:47 12 THE COURT: Wait just a minute. 16:33:49 13 MR. FITZGERALD: Lack of foundation. 16:33:50 14 THE COURT: I agree. Sustained. Let's find out how 16:33:54 15 she came about this understanding and see whether it is 16:33:56 16 appropriate testimony. 16:33:58 17 Q. (BY MR. GORMAN) What is your understanding based on? 16:34:01 18 A. Conversation with my husband. 16:34:05 19 MR. GORMAN: Then I'm not entitled to that. 16:34:07 20 Q. (BY MR. GORMAN) It was not conversation with Mrs. Schell? 16:34:14 21 A. No. 16:34:15 22 Q. Now, let's go into February of 1998. You understand that 16:34:21 23 that's the month that Mrs. Schell died? 16:34:23 24 A. Yes, I know. 16:34:26 25 Q. Did your friend Mrs. Schell discuss with you the fact that 1210 16:34:30 1 her husband was again suffering from depression then in 16:34:33 2 February of 1998? 16:34:38 3 A. On Tuesday of that week she approached me about the fact 16:34:52 4 that she felt that Don was suddenly getting worse and she 16:35:01 5 wondered if she ought to try to get him in to see the doctor 16:35:06 6 the next day. 16:35:14 7 And in our conversation I, you know, concurred with 16:35:18 8 her that she should seek help if she felt like he was getting 16:35:23 9 worse before it continued to get worse. 16:35:28 10 Q. Did you make any recommendations to Mrs. Schell at this 16:35:32 11 point on how they should handle this depression? 16:35:37 12 A. Only -- I only said I concurred with her opinion that 16:35:45 13 something needed to be done if she felt it was getting worse. 16:35:49 14 Q. Did you recommend that Mr. Schell be seen by a 16:35:51 15 psychiatrist? 16:35:52 16 A. When Rita said that she was going to try to get an 16:35:56 17 appointment with the family doctor, I simply said, "Isn't 16:36:05 18 there a psychiatrist here in town?" And she said she felt 16:36:10 19 like she wanted to take him to their family doctor in such a 16:36:15 20 way that I just said, "As long as you feel best with that." 16:36:24 21 Q. Do you remember you and Mrs. Schell at that point talking 16:36:26 22 about in terms of getting Mr. Schell some medication? 16:36:34 23 A. I assume that's why she wanted him to be seen by the 16:36:43 24 doctor. She did not ask me about any specific medication or 16:36:46 25 anything. 1211 16:36:47 1 Q. I understand. Now, did Mrs. Schell then -- did there come 16:36:50 2 a time when Mrs. Schell asked you to cover some work for her 16:36:54 3 on Thursday, which would be February 12th? 16:36:58 4 A. On Thursday she asked me if I could possibly cover her 16:37:06 5 floor time on Friday morning because she felt with Don, as 16:37:13 6 she put it, being the way he is right now and her daughter 16:37:17 7 and granddaughter being there and having been ill, that she 16:37:21 8 didn't think she could settle the household in time to get in 16:37:26 9 to do her floor time. 16:37:28 10 She was kind of hesitant to ask me because everybody 16:37:35 11 knew it had to be a good reason because I don't think the 16:37:40 12 world starts before 9:00 in the morning. But because it was 16:37:43 13 Rita and she was obviously upset at this point, I said of 16:37:47 14 course, and I did come in at 8:00 to fill her time. 16:37:50 15 Q. And let me understand what she asked you. Did she ask you 16:37:54 16 to do this because she felt uncomfortable with leaving Deb 16:37:58 17 and the baby with Don in his condition? 16:38:02 18 A. Her -- to the best of my remembrance, her words were, 16:38:07 19 "With Don being the way he is now and Deb and the baby having 16:38:16 20 been ill, I don't think I can get everything arranged," 16:38:22 21 whatever arranged meant, in time to be there at 8:00 in the 16:38:26 22 morning. 16:38:27 23 Q. Did you become concerned when Mrs. Schell didn't come to 16:38:30 24 work on Friday? 16:38:31 25 A. By about 10:30 I began to get -- because Rita always was 1212 16:38:35 1 where she said she was going to be. 16:38:39 2 Q. And was this something out of character for Mrs. Schell 16:38:47 3 not to show up when she said she would be there? 16:38:50 4 A. In all of my dealings with her, she had said she would be 16:38:53 5 there no later than 10:00, so by 10:30 I began to wonder what 16:38:59 6 was going on because yes, that was out of character. 16:39:01 7 Q. And why were you concerned at this point, Mrs. Lafferty? 16:39:04 8 A. Because obviously I felt something was going on at the 16:39:07 9 house because she was upset the day before. 16:39:13 10 Q. And did that something involve Mr. Schell's depression? 16:39:16 11 A. That was certainly a factor. 16:39:33 12 Q. You ultimately learned about what happened? 16:39:36 13 A. Yes. 16:39:36 14 Q. And were you surprised when you heard about this? 16:39:38 15 A. I was not surprised that it involved Don and Rita. I was 16:39:41 16 surprised that it involved the daughter and granddaughter 16:39:45 17 also. 16:39:51 18 MR. GORMAN: Could I have a minute, Your Honor? 16:39:53 19 THE COURT: Yes, you may. 16:39:56 20 MR. GORMAN: Nothing further at this point, 16:39:58 21 Mrs. Lafferty. Thank you. 16:40:00 22 THE COURT: Mr. Fitzgerald. 23 CROSS-EXAMINATION 16:40:01 24 Q. (BY MR. FITZGERALD) Mrs. Lafferty, I want to start on a 16:40:16 25 point that seems to be light but it has a point to it. The 1213 16:40:20 1 reason I want to talk about that is many people enjoy 16:40:23 2 reading, correct? 16:40:25 3 A. Yes. 16:40:25 4 Q. Just liking to read doesn't have anything to do, per se, 16:40:28 5 with depression, does it? 16:40:30 6 A. Obviously not. 16:40:31 7 Q. And the reason I wanted to ask you about that is that you 16:40:34 8 provided reading materials over the years that you worked at 16:40:38 9 the ERA to Rita Schell for Don, correct? 16:40:42 10 A. Yes. 16:40:47 11 Q. When did you go to work at ERA? 16:40:50 12 A. '92. 16:40:50 13 Q. That was after Rita? 16:40:52 14 A. I don't know how long after, that but -- 16:40:54 15 Q. She was already there? 16:40:55 16 A. She was well established there, yes. 16:40:58 17 Q. These reading materials you provided over time, that 16:41:00 18 started in '92? 16:41:01 19 A. No, that didn't really start until more, I believe, about 16:41:05 20 '97. Before Rita ever mentioned that Don read that much. 16:41:12 21 Q. I'm not sure I followed that, but let me see if I got that 16:41:16 22 right. You started providing a lot of reading materials for 16:41:20 23 Don in 1997? 16:41:21 24 A. I believe it was the late summer or early fall of '97 that 16:41:25 25 I began to bring like six or eight books in at a time. 1214 16:41:36 1 Q. What kind of books? 16:41:37 2 A. Adventure books, mystery books, even some science fiction 16:41:42 3 books. I had several authors at that time that I had most of 16:41:45 4 their books and we just started bringing in samples of each 16:41:48 5 one to see which one he liked. It turned out he would read 16:41:53 6 any of them so I just started bringing them in. 16:41:58 7 Q. The 9:00 p.m. rule that's been talked about, that wasn't 16:42:01 8 something that happened later on, that was true from the 16:42:03 9 get-go, wasn't it? 16:42:04 10 A. I learned about that shortly after I came there. 16:42:14 11 Q. So that's nothing new in the course of the depression over 16:42:18 12 the years? 16:42:19 13 A. I'm not sure I can answer that. 16:42:20 14 Q. That rule, to your understanding, was in place -- 16:42:23 15 A. Sometime prior to when I came. 16:42:34 16 Q. And these issues by whosoever choice it was that Rita 16:42:39 17 would be home by 4:00, that was true the whole time you were 16:42:42 18 there; isn't that true? 16:42:45 19 A. Pretty much the whole time I was there as far as in my 16:42:48 20 understanding. 16:42:49 21 Q. Yeah, okay. Just trying to look for new things so I want 16:42:55 22 to rule out those. Those are old things, right? 16:42:59 23 A. To the best of my knowledge, they had been going on for 16:43:02 24 quite some time. 16:43:27 25 Q. All right. Your work in St. Louis was touched upon in 1215 16:43:31 1 your direct examination. You spent 15 years as a social 16:43:34 2 worker working actually in an institutionalized setting, 16:43:44 3 correct? 16:43:44 4 A. Residential setting, yes. 16:43:44 5 Q. And you said that people there, several of them who were 16:43:47 6 your -- what do you call them, patients? 16:43:49 7 A. They were my clients. 16:43:51 8 Q. Were on antidepressants, correct? 16:43:53 9 A. And other types of medication, yes. 16:44:03 10 Q. All of those antidepressants were prescribed by a 16:44:06 11 psychiatrist; isn't that true? 16:44:07 12 A. Or a psychologist, we had both on staff. 16:44:10 13 Q. But psychologists can't write prescriptions, can they? 16:44:13 14 A. You know, I don't really remember. I just know we had 16:44:16 15 both on staff. 16:44:17 16 Q. Sure, and in an institution like that you would have both 16:44:19 17 on staff? 16:44:21 18 A. Right. 16:44:21 19 Q. Psychologists actually get a Ph.D., a doctor of 16:44:24 20 philosophy, correct? You don't know that? Okay. 16:44:28 21 They aren't licensed by the state medical board, 16:44:31 22 they're licensed by the psychological board? 16:44:33 23 A. As far as I know. 16:44:36 24 Q. So if we make the assumption, if you will make this with 16:44:41 25 me, that a psychologist cannot write prescriptions, the only 1216 16:44:46 1 other persons in that setting who would be writing 16:44:48 2 prescriptions for antidepressants were actually 16:44:51 3 psychiatrists; isn't that true? 16:44:56 4 A. In my setting we had the psychologist or the psychiatrist 16:45:04 5 in conjunction do those types of medications, in just that 16:45:09 6 setting. 16:45:10 7 Q. Okay. All right. Those prescriptions were not written by 16:45:15 8 general practitioners, were they? 16:45:18 9 A. In the institution that I worked in, no, they were not. 16:45:21 10 Q. Nor were they written by internists? 16:45:25 11 A. In that setting, no, they were not. 16:45:29 12 Q. And if you had your way in the world, prescriptions for 16:45:42 13 psychotropic medications, antidepressants would be written 16:45:46 14 just by psychiatrists maybe in conjunction with 16:45:50 15 psychologists? 16:45:51 16 MR. GORMAN: Object to foundation, asking the witness 16:45:53 17 to speculate and it is not relevant, if she had her way. 16:45:56 18 THE COURT: I agree. Sustained. 16:46:06 19 Q. (BY MR. FITZGERALD) You had some misgivings about Rita 16:46:07 20 Schell taking Don Schell to a general practitioner for 16:46:10 21 psychotropic medication; isn't that true? 16:46:14 22 A. I had some misgivings about Rita taking Don to a general 16:46:19 23 practitioner for -- if he was, in fact, suffering again from 16:46:28 24 depression. 16:46:31 25 Q. Yes. And if a drug company were to furnish medications, 1217 16:46:40 1 make medications for mental health professionals like 16:46:47 2 psychiatrists to administer, and if those were going to be 16:46:51 3 used by general practitioners, based upon the experience that 16:46:56 4 you described for Mr. Gorman in your direct examination, you 16:47:01 5 would want full and complete information presented to the 16:47:05 6 general practitioner; isn't that true? 16:47:07 7 MR. GORMAN: Object to the question, Your Honor. It 16:47:10 8 is asking the witness to speculate. It is absolutely not 16:47:13 9 relevant and outside the scope of direct examination. 16:47:15 10 THE COURT: Sustained. 16:47:20 11 Q. (BY MR. FITZGERALD) Mrs. Lafferty, in your work for those 16:47:26 12 15 years as a social worker in St. Louis you saw a number of 16:47:38 13 patients, clients who had been prescribed the antidepressant 16:47:45 14 medications that were then available on the market? 16:47:50 15 MR. GORMAN: Object to the question, Your Honor. It 16:47:51 16 is outside the scope of direct and it has no relevance to 16:47:54 17 this case. 16:47:55 18 THE COURT: I'm not too sure where we're going with 16:47:57 19 this. This is truly a fact witness about the relationship 16:47:59 20 with the Schells and I think we're probably going down the 16:48:37 21 wrong path. Sustained. 16:48:37 22 MR. FITZGERALD: The reason I brought into it was 16:48:37 23 several of her clients having been on antidepressants, so I 16:48:37 24 thought it was within the scope but I'll get off of it. 16:48:37 25 THE COURT: I think we've gone far beyond that. That 1218 16:48:37 1 was kind of an introductory kind of question and we've moved 16:48:37 2 beyond that and this is going to go far away from this 16:48:37 3 witness' real testimony. 16:48:49 4 Q. (BY MR. FITZGERALD) Deb Tobin, formerly Deb Schell, was 16:48:53 5 somebody that you knew before she became Deb Tobin; isn't 16:49:00 6 that true? 16:49:00 7 A. Actually, I'm not sure I ever met her. 16:49:02 8 Q. You were surprised that she was killed in this incident? 16:49:08 9 A. I was rather surprised. 16:49:10 10 Q. You knew she was very important to the Schells, Don and 16:49:13 11 Rita; isn't that true? 16:49:15 12 A. At least to Rita. 16:49:20 13 Q. So you're not here -- you don't have any information about 16:49:22 14 the relationship between Mr. Schell and his daughter Deborah; 16:49:29 15 is that right? 16:49:30 16 A. I do not. 16:49:31 17 Q. And you don't know anything about the relationship between 16:49:35 18 Donald Schell and Alyssa Tobin, the child? 16:49:38 19 A. I only know of Rita's. 16:49:42 20 Q. But you were, nevertheless, surprised that Deborah and 16:49:46 21 Alyssa were killed? 16:49:48 22 A. I was. 16:49:50 23 MR. FITZGERALD: May I have just a moment, Your 16:49:52 24 Honor? 16:49:52 25 THE COURT: Sure, you may. 1219 16:50:05 1 MR. FITZGERALD: Nothing further. 16:50:06 2 THE COURT: Anything further? 16:50:07 3 MR. GORMAN: No. And we would ask that Mrs. Lafferty 16:50:11 4 be excused. 16:50:12 5 THE COURT: Any objection? 16:50:13 6 MR. FITZGERALD: No. 16:50:13 7 THE COURT: You're excused from this trial and you 16:50:16 8 may feel free to return to your home. 16:50:19 9 MR. GORMAN: We will try to get Mr. Hardy done now. 16:50:24 10 THE COURT: Well, let's call him. 16:50:32 11 Counsel, approach the bench. I don't need the court 16:50:32 12 reporter for this. 16:50:32 13 (Discussion held out of the hearing 16:50:32 14 of the reporter and the jury.) 16:51:06 15 THE COURT: Who is this witness, Mr. Gorman? 16:51:10 16 MR. GORMAN: This witness is Mr. Robert Hardy, Your 16:51:12 17 Honor. 16:52:04 18 (Witness sworn.) 16:52:04 19 THE CLERK: Please state your name and spell it for 16:52:06 20 the record. 16:52:15 21 THE WITNESS: Robert L. Hardy. 22 23 24 25 1220 1 ROBERT HARDY, 2 called as a witness on behalf of the Defendant, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 16:52:19 5 Q. (BY MR. GORMAN) H A R D Y? 16:52:21 6 A. H A R D Y. 16:52:22 7 Q. Mr. Hardy, we met at the taking of your deposition, true? 16:52:26 8 A. True. 16:52:26 9 Q. You are married to Neva Hardy who has been sitting here at 16:52:31 10 counsel table? 16:52:31 11 A. True. 16:52:32 12 Q. And you've been married to Mrs. Hardy for how long? 16:52:36 13 A. September 5th of 1991. 16:52:39 14 Q. You're going to have to really speak up. I can hardly 16:52:42 15 hear you. 16:52:43 16 A. September 5th, 1991. 16:52:45 17 Q. Now, you have known Don Schell since 1963 or '64, true? 16:52:53 18 A. It has been earlier than that. I knew who he was earlier 16:52:56 19 than that. I didn't know him personally until Neva and I 16:53:02 20 started going together. 16:53:04 21 Q. And that would have been sometime around your marriage? 16:53:06 22 A. Yeah. 16:53:09 23 Q. Did you know that Don Schell had been treated for 16:53:13 24 depression, for anger and irritability in 1984? 16:53:19 25 A. No. 1221 16:53:20 1 Q. And I'm talking anytime, even before you were married to 16:53:24 2 Neva or up until his death, okay? 16:53:27 3 A. Okay. 16:53:28 4 Q. Do you know that Mr. Schell was treated for five months in 16:53:31 5 1989 for depression and was off work for at least one month? 16:53:40 6 A. No. 16:53:40 7 Q. Did you know that Mr. Schell was treated by a 16:53:42 8 psychiatrist, Dr. Suhany, for an entire year in 1990 and was 16:53:47 9 out of work for at least two months? 16:53:49 10 A. No. 16:53:53 11 Q. Did you know that Mr. Schell was treated for four months 16:53:54 12 by three different doctors for depression, anger and 16:53:58 13 irritability in 1991 and was out of work for at least one 16:54:03 14 month? 16:54:04 15 A. No. 16:54:05 16 Q. Did you know that Mr. Schell was treated for depression by 16:54:09 17 a psychiatrist and a psychologist in 1993 and was out of work 16:54:14 18 for at least one month? 16:54:16 19 A. No. 16:54:18 20 Q. Did you know that Mr. Schell continued to seek treatment 16:54:21 21 and was counseled for agitation, anger and depression by 16:54:27 22 Sister Agnes Claire of the local Catholic church in Gillette? 16:54:32 23 A. No. 16:54:33 24 Q. At any time prior to February 13th of 1998 did you know 16:54:46 25 anything about Don Schell's mental history? 1222 16:54:49 1 A. On Monday -- 16:54:50 2 Q. I'm going to get to that. Before the week prior to his 16:54:52 3 death, before that week did you know anything about Don 16:54:56 4 Schell's history with mental illness or depression? 16:55:04 5 A. No. 16:55:05 6 Q. Now, Mr. Schell did not shave his head in the summers, did 16:55:09 7 he? 16:55:13 8 A. I thought he did. 16:55:15 9 Q. Well, it would be very unusual for him to shave his head, 16:55:18 10 wouldn't it? 16:55:25 11 A. No. 16:55:27 12 Q. Well, do you recall us discussing this in your deposition? 16:55:37 13 A. No. 16:55:37 14 Q. Let me show you this. 16:55:39 15 MR. GORMAN: If I might approach. 16:55:41 16 THE COURT: Yes. 16:55:42 17 Q. (BY MR. GORMAN) It was taken December 6th, 2000, this 16:55:44 18 last year. And I'll show you -- and you have a copy of it in 16:55:47 19 your hand, don't you? Is that your deposition that's in your 16:55:51 20 hand? 16:55:51 21 A. Yeah. 16:55:52 22 Q. Did you have a chance to read that this morning before you 16:55:54 23 testified? 16:55:55 24 A. No. 16:55:55 25 Q. Did you have a chance to discuss the head shaving events 1223 16:55:58 1 with your wife before you testified? 16:56:04 2 A. Before I took the what? 16:56:05 3 Q. Before you took the witness stand today. 16:56:07 4 A. No. 16:56:08 5 Q. Well, let's look at page 50 of your deposition and we'll 16:56:12 6 begin with line 5. Are you with me? 16:56:17 7 A. Uh-huh. 16:56:18 8 Q. Let me ask you if these were not the questions I asked and 16:56:21 9 the answers that you gave back in December. I asked you, 16:56:25 10 "Either Don or Rita shaved his head?" I said, "Rita didn't 16:56:31 11 shave her head?" And what did you say? 16:56:34 12 A. "No, Rita didn't shave her head." 16:56:36 13 Q. Could you read that a little clearer? 16:56:39 14 A. "No, Rita didn't shave her head." 16:56:41 15 Q. Then I asked you this question: "Was that something -- 16:56:43 16 Don shaved his head, I mean, is that something unusual?" 16:56:47 17 And what was your answer, Mr. Hardy? 16:56:49 18 A. At that time, yes. 16:56:51 19 Q. What was your answer? Would you just read it as you gave 16:56:53 20 it then? 16:56:54 21 A. "That would be for Don, yes." 16:56:56 22 Q. And then I asked you, "Did -- was Don in the habit of 16:56:59 23 shaving his head?" And your answer was? 16:57:02 24 A. "No." 16:57:03 25 Q. "Like every winter, did Don shave his head or every 1224 16:57:06 1 summer?" And your answer was? 16:57:07 2 A. "No." 16:57:26 3 Q. And you told me the truth when you gave me those answers, 16:57:29 4 didn't you? 16:57:32 5 A. Yeah. 16:57:33 6 Q. Now, you mentioned the week before or the week of Mr. and 16:57:38 7 Mrs. Schell's death. And we talked to your wife about this, 16:57:48 8 about a call that -- a conversation that she, Neva Hardy, had 16:57:52 9 with her sister Rita. And Neva didn't recall the 16:58:01 10 conversation. 16:58:01 11 I'm going to ask you, do you recall a conversation 16:58:02 12 that Rita Schell and Neva Hardy had on Monday or Tuesday, the 16:58:10 13 9th or the 10th of February, before the shootings? 16:58:15 14 A. On Monday. 16:58:16 15 Q. Monday, the 9th? 16:58:20 16 A. Uh-huh. 16:58:21 17 Q. And it was during that conversation that Rita Schell told 16:58:24 18 Neva Hardy, her sister, that she was worried because Don was 16:58:29 19 going back into a depression, true? 16:58:36 20 A. He was going back into a slight depression. 16:58:42 21 Q. Did Mr. Schell ever talk with you about his mental health 16:58:47 22 issues? 16:58:48 23 A. No. 16:58:49 24 Q. Now, we heard some discussion about an interview the night 16:59:02 25 of the accident, the shootings, when you and your wife were 1225 16:59:20 1 at your mother-in-law's home. Do you remember that? 16:59:24 2 A. Yes. 16:59:24 3 Q. And do you remember I asked you to look at a summary of a 16:59:27 4 statement that was given at that time that's reflected in the 16:59:32 5 police report that was given by your wife? Do you remember 16:59:35 6 our discussing that in your deposition? 16:59:38 7 A. I believe so. 16:59:40 8 Q. Well, let me show -- what I'm going to show you what is a 16:59:46 9 part of Joint Exhibit 243. It is the 71st page of that 16:59:51 10 exhibit compendium. It is the eighth page of the 2/19/98 16:59:58 11 report. 17:00:00 12 MR. GORMAN: Could I approach the witness, Your 17:00:02 13 Honor? 17:00:02 14 THE COURT: You may. 17:00:03 15 MR. GORMAN: I don't know why the machine isn't 17:00:06 16 working. We could put this on the board. 17:00:09 17 Q. (BY MR. GORMAN) Do you remember us reading that statement 17:00:13 18 together during your deposition? 17:00:15 19 A. This? 17:00:16 20 Q. Yes. 17:00:17 21 A. No. 17:00:17 22 Q. You don't remember that? 17:00:18 23 A. No. 17:00:19 24 Q. Okay. Well, let's refresh your recollection. Would you 17:00:23 25 please look at page 51 of your -- well, we can begin at page 1226 17:00:32 1 46, would put it in context. 17:00:36 2 And you were telling me that you did not recall the 17:00:38 3 interview. Do you remember that? 17:00:41 4 A. Correct. 17:00:42 5 Q. Pardon? 17:00:42 6 A. Correct. 17:00:43 7 Q. Okay. But then on page 51, you see I had you read that 17:00:51 8 interview? Right below where we were talking about 17:00:57 9 Mr. Schell, how unusual it was for him to shave his head, do 17:01:01 10 you see that? Let's go to page 50, line 23. 17:01:09 11 "You say that you read this information in the 17:01:12 12 police report and you still don't recall the interview?" Do 17:01:15 13 you see that? 17:01:16 14 A. Right, I don't. 17:01:16 15 Q. And then I had you read it, remember? Would you take your 17:01:22 16 time right now and read through that interview that I have 17:01:27 17 just circled there. 17:02:18 18 A. When was this? 17:02:19 19 Q. Did you read that report? This was a report taken on 17:02:23 20 2/13/1998 at 9:20. 17:02:26 21 A. That would have been Friday night. 17:02:28 22 Q. That would be the night of the shooting. Did you read 17:02:38 23 this now? 17:02:39 24 A. Yeah, I read it. 17:02:40 25 Q. Now, this says that she was speaking with Rita and Rita 1227 17:02:48 1 told her that Don was going into a deep depression. Now, you 17:02:52 2 said -- today you modified that and said a slight depression, 17:02:56 3 did you not? 17:02:58 4 A. That's in my deposition, is a slight depression. 17:03:01 5 Q. Well, but let's look at what else you said when I asked 17:03:03 6 you to read that during your deposition. Look at page 51, if 17:03:06 7 you would. Let's begin at line 5. 17:03:15 8 I said -- assuming the interview took place as the 17:03:19 9 police officers indicate, do you see as you read there, "Is 17:03:21 10 there anything that sticks out in your mind, that jumps out 17:03:25 11 at you and says, 'Well, that's not -- that didn't happen or 17:03:30 12 that's just not the case'?" 17:03:33 13 What was your answer? 17:03:34 14 A. "No, it is probably -- everything is reasonable in there." 17:03:37 15 Q. You're going to have to speak up and -- 17:03:40 16 A. "No, it is probably -- everything is reasonable in there." 17:03:44 17 Q. Your answer was, "No, it is possibly -- everything is 17:03:48 18 reasonable in there, yeah," true? 17:03:51 19 A. Yeah. 17:03:52 20 Q. And then I asked you, "Based on what you know about the 17:03:56 21 case, okay, is everything contained in this interview summary 17:04:00 22 consistent with what you now understand happened?" And your 17:04:03 23 answer is yes? 17:04:04 24 A. Yes. 17:04:05 25 Q. And did you tell me the truth during your deposition? 1228 17:04:11 1 A. Yes. 17:04:11 2 Q. And what we were talking about was the interview summary 17:04:14 3 that the police made of the interview with your wife that 17:04:18 4 evening, true? 17:04:19 5 A. True. 17:04:20 6 Q. And the interview summary says that Mr. Schell was not 17:04:24 7 going into a slight depression, that he was going into a deep 17:04:28 8 depression, doesn't it? 17:04:38 9 A. Do I say that in here? 17:04:39 10 Q. I even underlined it for you there. It says that Rita had 17:05:01 11 told Neva the week before these events that her husband at 17:05:05 12 that time was going into a deep depression, true? 17:05:08 13 A. True. 17:05:09 14 MR. GORMAN: Your Honor, I have nothing further at 17:05:11 15 this time for Mr. Hardy. Thank you. 17:05:17 16 MR. FITZGERALD: Under Rule 103 and the rule of 17:05:19 17 completeness, I would like permission to ask the witness to 17:05:22 18 turn to another portion of this written deposition. 19 CROSS-EXAMINATION 17:05:25 20 Q. (BY MR. FITZGERALD) And let's start with page 13, if you 17:05:38 21 want to go to page 13 there, and we will start at line 14. 17:05:48 22 You can follow along with me and see if I'm saying this right 17:05:51 23 as to what your testimony was. 17:05:54 24 "Question: Do you know anything about Don's mental 17:05:58 25 history prior to December 13th, 1998, the day he died?" 1229 17:06:04 1 And you answered, "December?" 17:06:09 2 "Question: February, excuse me. I apologize. Thank 17:06:12 3 you. February 13th of 1998." 17:06:17 4 Now, this was the first time that you had met 17:06:18 5 Mr. Gorman, right? 17:06:20 6 A. Correct. 17:06:21 7 Q. And the first time you had met me was this morning, right? 17:06:24 8 A. This morning. 17:06:25 9 Q. But the answer here is -- when you pointed out that it was 17:06:29 10 really February, your answer was, "It was on -- it was 17:06:33 11 probably the Tuesday before then Rita called Neva -- let me 17:06:41 12 make sure we're clear on this. We're talking about Don's 17:06:43 13 mental history prior to December 13th, 1998, the day he 17:06:48 14 died." 17:06:48 15 And you answered, "It was probably the Tuesday before 17:06:50 16 then Rita called Neva and said Don was going back into a -- 17:06:55 17 or was going back into a -- kind of going back into a slight 17:06:59 18 depression," is that correct? 17:07:02 19 A. Correct. 17:07:03 20 Q. So you said slight depression at the time of your 17:07:06 21 deposition under oath, correct? 17:07:07 22 A. That's correct. 17:07:08 23 Q. And that's when you were specifically asked as opposed to 17:07:10 24 being shown an overall summary? 17:07:14 25 A. Correct. 1230 17:07:14 1 Q. Okay. And you also on page 48 were asked this question by 17:07:21 2 Mr. Gorman: "Tell me everything you can remember that Neva 17:07:27 3 told you that Rita told her on Tuesday prior to the 17:07:29 4 shootings." Are you with me there? You see where I read the 17:07:35 5 question? 17:07:36 6 A. No, where is it? 17:07:37 7 Q. 48, line 7. Your answer was, "Something like that we 17:07:55 8 really didn't discuss. She just said that Rita was worried 17:07:58 9 that Don was going back into a slight depression or whatever. 17:08:04 10 And that was about the extent of the conversation about 17:08:06 11 that," right? 17:08:08 12 A. Right. 17:08:09 13 Q. So you told Mr. Gorman under oath twice that it was a 17:08:12 14 slight depression, correct? 17:08:14 15 A. Correct. 17:08:15 16 Q. You never saw Don get angry, did you? 17:08:17 17 A. No. 17:08:18 18 Q. And you were over at the house for, what, a barbecue or 17:08:20 19 something along those lines? You saw him sometimes? 17:08:23 20 A. I went over there for a couple of barbecues, Christmas, 17:08:26 21 and we stopped by one day, took something over to them and 17:08:31 22 visited for about a half an hour. 17:08:38 23 Q. Now, before he died -- one of those Christmas visits was 17:08:42 24 just before he died. That was December -- well, it was a 17:08:45 25 little after Christmas, December 29th of the Christmas just 1231 17:08:51 1 before these people all died? 17:08:54 2 A. That's the last time I saw Don. 17:08:56 3 Q. And he was what you would call -- you would describe as 17:08:58 4 himself then, wasn't he? 17:09:00 5 A. Yes, the same Don. 17:09:01 6 Q. He was jovial; isn't that true? 17:09:04 7 A. Correct. 17:09:04 8 Q. He was joking; isn't that true? 17:09:06 9 A. Correct. 17:09:06 10 Q. He was telling stories; isn't that true? 17:09:09 11 A. Correct. 17:09:09 12 Q. He was friendly; isn't that true? 17:09:11 13 A. Correct. 17:09:11 14 Q. He was outgoing; isn't that true? 17:09:14 15 A. Yes. 17:09:14 16 Q. He was storytelling? 17:09:16 17 A. Yes. 17:09:17 18 Q. Isn't that true? 17:09:17 19 A. Yes. 17:09:17 20 Q. And you kept the conversation going; isn't that true? 17:09:21 21 A. Yes. 17:09:22 22 Q. And when Don did this, you did not believe that Don had 17:09:26 23 done it because of the love of his family; isn't that true? 17:09:31 24 A. Correct. 17:09:31 25 MR. FITZGERALD: That's all I have, sir. Thank you. 1232 17:09:37 1 THE COURT: Mr. Gorman, anything else? 17:09:38 2 MR. GORMAN: I have nothing further. We would ask 17:09:40 3 that Mr. Hardy be excused. 17:09:41 4 THE COURT: Any objection? 17:09:42 5 MR. FITZGERALD: No, Your Honor. 17:09:44 6 THE COURT: Thank you, Mr. Hardy. You're excused 17:09:47 7 from further attendance at this trial and may step down. 17:09:50 8 Very well. We will adjourn for the evening. Ladies 17:09:54 9 and gentlemen, I will remind you once again to remember the 17:09:56 10 usual admonition of the Court and we will stand in recess 17:10:00 11 until Wednesday morning, tomorrow morning, at 9:00 a.m. 17:10:04 12 (Trial proceedings recessed 17:10:06 13 5:10 p.m., May 29, 2001.) 14 15 16 17 18 19 20 21 22 23 24 25 1233 1 C E R T I F I C A T E 2 3 I, JANET DEW-HARRIS, a Registered Professional 4 Reporter, and Federal Certified Realtime Reporter, do hereby 5 certify that I reported by machine shorthand the trial 6 proceedings, Volume VI, contained herein, and that the 7 foregoing 241 pages constitute a full, true and correct 8 transcript. 9 Dated this 31st day of July, 2001. 10 11 12 JANET DEW-HARRIS Registered Professional Reporter 13 Federal Certified Realtime Reporter 14 15 16 17 18 19 20 21 22 23 24 25