1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 FRIDAY, DECEMBER 2, 1994 15 VOLUME XLIII 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 Hearing in Chambers on Juror Davis-Spalding's 4 Health Status............................................ 4 5 Proceedings in Open Court................................ 8 6 Hearing in Chambers...................................... 10 7 Reporter's Certificate................................... 20 8 * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 North, First Trust Centre Louisville, Kentucky 40202 12 FOR THE DEFENDANT: 13 EDWARD H. STOPHER 14 Boehl, Stopher & Graves 2300 Providian Center 15 Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 17 Freeman & Hawkins 4000 One Peachtree Center 18 303 Peachtree Street, N.E. Atlanta, Georgia 30308 19 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Friday, December 2, 1994, at approximately 9:00 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: Okay. Let me tell you what I did 11 this morning. I called the Jewish Hospital and spoke to the 12 emergency room; they told me she was not a patient. I spoke 13 to the emergency room nurse. They told me she was sent home 14 at four P.M. yesterday. I called Ms. Davis at home. She is 15 at home. She tells me that her doctor is Doctor Stanford, but 16 that doctor was referred -- she was referred to that doctor by 17 the emergency room, and she has not seen him and she could not 18 read the name of the emergency room doctor off the sheet they 19 gave her when she left the hospital. But she told me that 20 when she went in, her blood pressure was 200 over 90. They 21 gave her some medication and they got it down to 160 over 80. 22 They sent her home. Apparently they did do some tests and 23 stuff, EKGs, or whatever. She's on pills. 24 She's been told to make an appointment with 25 Doctor Stanford for Monday or Tuesday of next week and go 5 1 back. The doctor has told her to rest and the pills are, 2 among other things, apparently are controlling her blood 3 pressure but have made her very sleepy. And she does not feel 4 that she could serve as a juror till Monday or Tuesday of next 5 week after she sees Doctor Stanford. 6 Does anybody have anything? 7 MR. SMITH: I feel under the circumstances if 8 it's going to be Monday or Tuesday before she'll even know for 9 sure whether she can serve as a juror that it would be 10 appropriate to excuse her, Your Honor. 11 MR. STOPHER: Judge, I hate to -- 12 JUDGE POTTER: And let me say this. I told her 13 not to be insulted if we called the emergency room and got the 14 emergency room doctor and talked to him, so there's no -- go 15 ahead, Mr. Stopher. 16 MR. STOPHER: Well, what I was going to say is, 17 is that I hate for her to be excluded after she's served, 18 what, eight weeks now on something that it appears is going to 19 get under control in a relatively short period of time. The 20 fact of the matter is, Judge, that I don't think we have very 21 much more to go, and if we waited until Monday or even 22 Tuesday, I still think this case will conclude next week. 23 I believe that there's a strong probability that 24 Doctor Granacher may be the last witness. I think that 25 anybody else may in fact be repetitive, and I'm having a hard 6 1 time with Ed Mercer's health condition; he's still in the 2 hospital. 3 So I think -- my position would be that I'd like 4 to wait and let her see if she can come back on Monday. I 5 don't think it's going to delay anything in terms of the 6 actual outcome or the time at which it's concluded, and 7 certainly not going to delay the conclusion of our case 8 substantially. So, since it's just a half day today, I would 9 recommend that we go over to Monday. 10 JUDGE POTTER: Well, before I would excuse her 11 over an objection, I'm going to call and try and get the 12 doctor or at least the medical records at the emergency room 13 so we'll know what the situation is. We'll take a recess. 14 (RECESS) 15 JUDGE POTTER: As I understand it, I had it a 16 little bit backwards. The doctor she saw in the emergency 17 room was Freeman Stanford, but his real name is Stanford 18 Freeman. The Shulter or something like that is her general 19 practitioner. 20 COURT REPORTER: Who? 21 JUDGE POTTER: Shulter or something, Shultz, 22 Sheth or something. The doctor is writing something. He 23 wants to dictate it. It's been on its way for quite a while. 24 You know, I've called twice. Ms. Booker, who -- I forget who 25 was there when I spoke to her. 7 1 MR. FREEMAN: I was. 2 JUDGE POTTER: Mr. Freeman and Ms. Zettler. 3 I've called her a couple of times. Each time, "Well, he's 4 just about to do it," and it hasn't come over the fax machine 5 yet. The lady is -- one of the things she told me is she is 6 taking Xanax. So from talking to her on the telephone she's 7 groggy, so she's not a viable candidate today no matter what 8 we did. 9 What do you-all want to do now? 10 MR. FREEMAN: Let's go and come back on Monday. 11 JUDGE POTTER: Mr. Smith? 12 MR. SMITH: I don't have any objection to that. 13 Of course, my position is still the same, that it would be 14 just as easy to go ahead and relieve her from her duties as a 15 juror in this case. Mr. Stopher thinks we should wait and 16 see, at least, on the stuff, and I don't have any objection to 17 that, either. 18 JUDGE POTTER: Well, what we're in is a 19 situation where one person doesn't have an objection, the 20 other person does, and I'm not going to dismiss her over 21 somebody's objection without -- 22 MR. SMITH: Seeing some records. That's fine. 23 JUDGE POTTER: -- seeing some records. And I 24 guess today is pretty well shot. The problem is, I've got a 25 feeling no matter what Doctor Freeman says, I would be 8 1 reluctant to order her in here till she sees her family 2 doctor. Also, even if we got her in here on Monday, she'd 3 have to take time off to go to that appointment. 4 I guess what I ought to do is call the doctor 5 and explain to him that I'm going to send the sheriffs out for 6 her unless he sends her an excuse right away, and when she has 7 a stroke it will be on his malpractice carrier, and I bet we 8 get something out of him pretty fast and pretty definite. 9 But he wants it dictated and typed and all that sort of stuff. 10 MR. SMITH: What we're suggesting, though, is it 11 might be wise to go ahead and let the jury go. 12 JUDGE POTTER: Is that all right? We'll let the 13 jury go. With their half-day thing, they were only going to 14 get in a couple hours anyway. We'll come back on Monday. 15 We'll see what this doctor says. If I -- based on what he 16 says, if I overrule Mr. Stopher's objection, then we can start 17 right off on Monday. If I don't overrule his objection today, 18 then we can try to get her in to see her other doctor first 19 thing Monday and maybe have some additional information. 20 We'll get back together, but we're going to go 21 in here and send the jury home. 22 (THE FOLLOWING PROCEEDINGS OCCURRED 23 IN OPEN COURT) 24 SHERIFF CECIL: All rise. The Honorable Judge 25 John Potter is now presiding. Court is back in session. 9 1 JUDGE POTTER: Please be seated. 2 Ladies and gentlemen, as you know, yesterday Ms. 3 Davis-Spalding -- she filled out her jury card Davis-Spalding; 4 is that what she goes by or just Ms. Davis? 5 JUROR FRANKLIN: Just Ms. Davis. 6 JUDGE POTTER: I noticed her hospital chart -- 7 the hospital just had her as Ms. Davis. Went to the hospital 8 yesterday. She was discharged at 4:00. Her blood pressure 9 was under control. She was given some medication that kind of 10 sedated her, and so she's kind of groggy today. And rather 11 than make a decision about whether we're going to go forward 12 without her, because it's late in the day we're going to 13 recess until Monday morning, and then we'll have more 14 information and be able to either have Ms. Davis with us or go 15 on without her. That's why we put alternates in. 16 I'm going to give you the same admonition I've 17 given you before. Do not permit anybody to speak to or 18 communicate with you about any topic connected with this 19 trial, and any attempt to do so should be reported to me. I 20 emphasize again that people can communicate with you in a 21 number of ways, and one of the ways is by the newspaper or the 22 radio or the television, so don't get any information from 23 that, and don't let friends or family or anybody else talk to 24 you about the case. Do not discuss it among yourselves and do 25 not form or express opinions about it. 10 1 We'll stand in recess till 9:00. That's 9:00, 2 not 9:30. 9:00 Monday morning. 3 (JURORS EXCUSED; HEARING IN CHAMBERS) 4 JUDGE POTTER: These are the facts as I 5 understand -- oh, before we go on the record. 6 (OFF THE RECORD) 7 JUDGE POTTER: Okay. The facts, as I understand 8 them, are as follows: Doctor -- first of all, I have received 9 the fax, F-A-X, that you-all have just been given. Doctor 10 Schroeder is a partner with Doctor Freeman, and Doctor 11 Schroeder was actually the doctor that saw her yesterday. 12 Doctor Freeman was there today, and he was going to review the 13 record and type this thing up and then he decided it would be 14 better to have Doctor Schroeder write it. So, as you can 15 tell, Doctor Schroeder faxed this at Olin Chemical -- I guess 16 Brandenburg must be on Central Standard Time. Anyway, it 17 looks like it went out at probably 10:30 our time from Olin 18 Chemical, and then went out at 10:58 from Jewish Hospital to 19 here. 20 I have talked again to Ms. Booker, who is in the 21 legal department, and she cleared up the Doctor Freeman/Doctor 22 Schroeder problem. She has given me the name that you cannot 23 read there of Doctor Sheth, S-H-E-T-H. I have called Doctor 24 Sheth's office, and he does not have Saturday hours, or at 25 least his secretary tells me he does not have Saturday hours. 11 1 He does not see patients until 10:00 on Mondays, and he does 2 not get there himself till 10:30. But she has told me that if 3 I cry and she is there at 10:00, he will see her first thing 4 at 10:30. 5 That's where we are. I do not think I can order 6 this lady to come in and be a juror before she sees Doctor 7 Sheth, and so what we're left with is, you know, she's seeing 8 Doctor Sheth Monday at 10:30, and then either he says yes or 9 no and, you know, then probably 11:30 or so, we can start. 10 I mean, that's the way I envision the plan. 11 Does anybody else have any other thoughts? 12 MR. SMITH: In Kentucky, in order to excuse a 13 juror, do you have to have evidence from a physician that a 14 juror can or cannot serve as a juror or is it something within 15 the Court's discretion. 16 JUDGE POTTER: It's, I'm sure, within the 17 Court's discretion. And I have not looked up the exact 18 criteria, but I will tell you this: I am not going to dismiss 19 a juror over somebody's objection when I have a doctor's 20 statement that says, "She is now able to resume jury duty." I 21 mean, conceivably, you know, on Monday if Doctor Sheth says 22 yes, he thinks she can, but I talk to her or she comes down 23 here and I see her, I can form my own opinion about whether or 24 not she's capable of serving on jury duty. Obviously between 25 now and then I'll probably pull out a case and see what the 12 1 exact standard is about when you excuse a juror. 2 Does anybody else have any other thoughts about 3 how to handle Ms. Davis? 4 MR. STOPHER: No. I think that's fine. 5 JUDGE POTTER: And the real reason I didn't make 6 any kind of effort to get her in today is, first, it was an 7 hour and it's undisputed that she was given a prescription for 8 Xanax. And both Ms. Booker and I agreed she had been 9 following her doctor's advice and had been taking Xanax from 10 the way she talked on the telephone. My other inclination, 11 and I don't think this is ugly to her, is I'll probably have a 12 sheriff pick her up at 9:30 to make sure she gets to the 13 doctor on time. 14 MR. STOPHER: And that the doctor understands -- 15 JUDGE POTTER: Yeah. 16 MR. SMITH: That way, she won't have to worry 17 about driving, and we can put it we're going to assist you. 18 JUDGE POTTER: The only thing I have is I told 19 you I would give you what I was thinking about. They're not 20 cast in stone. You can check with other lawyers. I do this 21 in every case before I get to the end, kind of have a 22 tentative draft. And just because this draft does do two 23 things that from the tendered instructions are the way you-all 24 have argued the case: One, it directs a verdict as to Mr. 25 Wesbecker's negligence and, Two, directs a verdict that Hall 13 1 Security was not negligent. Those are subject to change, but 2 that's my tentative thinking. 3 Also, the other two things are what -- my 4 thinking about what the -- the instructions should be as to 5 Lilly. I think that's fairly well described in the various 6 cases. 7 As to Standard Gravure, I picked through three 8 or four or five clauses. As a matter of fact, my first draft 9 had two, four or five clauses in Standard Gravure that read if 10 blah, blah, blah, blah, blah, and from the -- what is it, Tony 11 gas station case? Anyway, there's one case that talks about 12 it. And I think although it's an older opinion I think it's 13 fairly well thought out, and it seems to say we don't know 14 where to draw the line as to when an employer has a duty to 15 protect against criminal acts of third parties, but we think 16 it's when it's likely and probable that they should know that 17 a criminal act is going to take place, that it's likely or 18 probable. So that's where I got that language. Other 19 candidates knew or should have known is an unusual risk, 20 probability. I had several candidates, but that's my first 21 draft. 22 MR. SMITH: I don't have a Verdict Form B on 23 mine. 24 JUDGE POTTER: You don't? 25 MR. SMITH: Mine has not been stapled in. 14 1 MR. FOLEY: I don't, either. 2 JUDGE POTTER: All right. I will get you -- 3 I'll go over and Xerox this. 4 MS. ZETTLER: Do you guys have copies? 5 MR. STOPHER: Hunh-uh. 6 JUDGE POTTER: Okay. I just must have missed 7 it. Is there anything else that can be done today? What time 8 are we going to do the thing on Tuesday? 9 MR. STOPHER: Eight o'clock. 10 MR. SMITH: Is that what you-all decided, eight 11 versus five? 12 MR. STOPHER: Yeah. 13 JUDGE POTTER: And you had a motion, Ms. 14 Zettler? 15 MS. ZETTLER: Yeah. I'm going to go get that 16 right now, Judge. 17 (MS. ZETTLER LEAVES AND REENTERS CHAMBERS) 18 MS. ZETTLER: Here we go. That's the original. 19 Did you want a copy for yourself that's not the original, too? 20 JUDGE POTTER: I'll just keep this one. That's 21 all right. What kind of time frame do you want on this one? 22 MS. ZETTLER: You mean as far as a ruling? 23 JUDGE POTTER: I was just asking them what they 24 wanted to... 25 MR. STOPHER: I don't really know, Judge. 15 1 Obviously, we need to get this decided, so we'll just do it as 2 quickly as possible. 3 JUDGE POTTER: Okay. Why don't we plan on this. 4 Why don't you plan to have anything written you want me to 5 have by Monday, you know, afternoon, and that way at the end 6 we can talk about whether we want to discuss it or just have 7 me decide it or whatever. 8 MR. STOPHER: Okay. All right. 9 MS. ZETTLER: Okay. 10 MR. SMITH: In light of the fact that Doctor 11 Granacher, we didn't get any of him today, I'm just wondering 12 -- and I'm not trying to put you in a bad position, Ed, but do 13 you know whether we need to be prepared on another witness, 14 whether we need to start disclosing to you our rebuttal 15 witnesses? And I'm not asking for a firm commitment now, but 16 if you could give me a fax this afternoon so that I can 17 accommodate you on getting you a list of our rebuttal 18 witnesses. 19 MR. STOPHER: I can't give you a fax this 20 afternoon that will be any more definite than what I can tell 21 you right now. I would guess that Granacher, if we start at 22 11:30, will take the rest of the day on Monday. 23 MR. SMITH: That's right. That's right. 24 MR. STOPHER: And Ed Mercer is still in the 25 hospital, and I'm trying to figure out whether or not he can 16 1 be available. And he will not be a long witness, in my 2 judgment, if he is available. And then I'm trying to decide 3 whether or not to use Doctor Fox or Doctor Schwab or one of 4 them. I don't want it to be repetitive, and that's the 5 situation. If I do use one or the other of them, if we start 6 at 11:30 on Monday, if Granacher is the last witness and I 7 can't get Mercer and I decide that Fox and Schwab are 8 repetitive or unnecessary, that will be it on Monday. We'll 9 probably finish on Monday. 10 MR. SMITH: That's reasonable. 11 MR. STOPHER: If not, the latest it will be is 12 Tuesday. 13 MR. SMITH: In light of that, we'll try to get 14 you a list as soon as possible -- maybe not today but, 15 hopefully, I don't contemplate an extensive rebuttal case. 16 MR. STOPHER: Okay. 17 MR. SMITH: One thing, we may -- I told Joe -- 18 Joe yesterday asked if I had any scientific witnesses 19 yesterday, and I said no. I may call a doctor to establish 20 that Mike Campbell and Bill Hoffmann would have not been in a 21 physical condition by virtue of their medication to have said 22 what Lieutenant Burbrink says they said. Obviously, I've not 23 disclosed any witness of that nature and, to be honest with 24 you, I haven't even decided on a -- it would just be some 25 local doctor that would say I would think that under this 17 1 medication from reviewing the medical records the patient 2 wouldn't be able to give an accurate description of anything. 3 MR. STOPHER: You're talking about the treating 4 doctor that actually treated them? 5 MR. SMITH: Either a treating doctor or somebody 6 who would just render an expert opinion based on the hospital 7 records. 8 MR. STOPHER: I would have more trouble with 9 somebody who was not the treating physician. 10 MR. FOLEY: You're going to have trouble with 11 finding the treating physician, Ed, because they were treated 12 at Humana Hospital. 13 JUDGE POTTER: Well, why don't we take that up 14 when Mr. Smith decides, A, he wants one and, B -- 15 MR. SMITH: I just wanted to let you know 16 because I had said yesterday to Joe that we weren't going to 17 have any scientific witnesses. 18 MR. STOPHER: I understand. 19 JUDGE POTTER: One other thing, Mr. Smith, and 20 it was probably hurried at the stand yesterday. I should not, 21 I don't think, under the Rules of Evidence let in the list of 22 what was sent to the lab and the results but, in my opinion, 23 it was something that was going to come in eventually. It's 24 something the jury will either know how many pills were left 25 in each Prozac bottle and they were going to get it in. My 18 1 only thing to you was, as I understand it, part of your proof 2 is going to be that they found something that indicated the 3 four or five drugs that they had tested for in Atlanta. 4 MR. SMITH: Right. 5 JUDGE POTTER: Okay. And my only thing 6 yesterday I wanted to say to you, that I don't know if all 7 four or five of those drugs were on that list yesterday. Some 8 of them could have come from an empty bottle. So what I was 9 saying to you yesterday is that if one or two of those four or 10 five drugs was not on that list -- and I think everybody 11 agrees that that list came from either full bottles or empty 12 bottles -- I will let you introduce a list or whatever it is 13 that shows they found an empty bottle to match up to that list 14 of five drugs. Do you understand what I'm saying? 15 MR. SMITH: I think so. 16 JUDGE POTTER: And it was hurried at the bench, 17 and my point was what they introduced was not a list of 18 everything they found out there but a list of what they sent 19 to the lab, which is different from what they had found. And 20 if they called a witness, you would have had the whole package 21 of what they found on the stand. And what I'm saying is that 22 I probably shouldn't have let that list in, but I did because 23 I thought it was harmless, and if I've caused you any problems 24 by not allowing you to show everything they found, all you've 25 got to do is go through the police records or whatever it is 19 1 and produce it and I will probably let it in. Okay? 2 MR. SMITH: Okay. 3 JUDGE POTTER: Anything else today? 4 MR. STOPHER: Okay. 5 MR. SMITH: Okay. 6 (PROCEEDINGS TERMINATED THIS DATE AT 11:42 A.M.) 7 * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that prior to giving testimony the witnesses 8 were first duly sworn; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25