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 MONDAY, DECEMBER 5, 1994 15 VOLUME XLV 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................................ 7 6 Reporter's Certificate................................... 10 7 * * * 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 FOR THE DEFENDANT: 11 EDWARD H. STOPHER 12 Boehl, Stopher & Graves 2300 Providian Center 13 Louisville, Kentucky 40202 14 JOE C. FREEMAN, JR. LAWRENCE J. MYERS 15 Freeman & Hawkins 4000 One Peachtree Center 16 303 Peachtree Street, N.E. Atlanta, Georgia 30308 17 18 * * * 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 Monday, December 5, 1994, at approximately 11:10 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: I just spoke with Doctor Sheth's 11 -- S-H-E-T-H's -- office, and apparently he gave Ms. Davis a 12 letter. The sheriff is in the process of taking her back 13 home, but the letter says, according to the secretary/ 14 receptionist, is that she should not be on the jury today; she 15 should go home and rest and take her medication. But if she 16 rests today and takes her medication, she should be all right 17 for jury duty tomorrow. You know, we can wait till we 18 actually see the letter, but I think we probably ought to talk 19 about it on the condition that that's what the letter's going 20 to say. 21 Mr. Stopher, what do you want to say? 22 MR. STOPHER: Judge, I would still be in favor 23 of then proceeding tomorrow; if she's here, fine. I don't 24 think we'll lose the target date of ending this case very 25 quickly and getting the thing completed this week and getting 5 1 to closing arguments, I'm sure, on Monday, the 12th, which I 2 think has been kind of the plan all the way along. My feeling 3 is that if she does not show up tomorrow at 9:00, then 4 obviously that's the end of it. 5 My position is that she has put in a tremendous 6 amount of time and effort and energy, and it's clearly not her 7 fault and I'm sure she's not dogging it and, quite frankly, to 8 have missed -- we've missed now two half days and then today 9 would be a full day. And in a trial this long, to have missed 10 just that amount of time I don't think is -- works any great 11 prejudice to anybody. I suppose if anybody's prejudiced by 12 the delay at this point, it's probably me because Doctor 13 Granacher's direct testimony is getting pretty old now. 14 JUDGE POTTER: And the clock. 15 MR. STOPHER: And the clock. You're right. So 16 I would still strongly, Judge, recommend -- I appreciate your 17 patience and everybody else's patience; mine have been tried, 18 as well. But I feel very confident that if we start tomorrow 19 morning at 9:00, we will finish our case, most likely, 20 tomorrow afternoon. I don't see it being a delay for the 21 conclusion of the trial, and I would strongly urge that this 22 juror be allowed to continue to completion, given what she's 23 put into it already. So there we be. I know that we all have 24 things that we can be doing. 25 JUDGE POTTER: Mr. Smith, I take it your 6 1 position is the same, that you're willing to go along without 2 her; is that right? 3 MR. SMITH: That's correct, Your Honor. 4 JUDGE POTTER: The fact that she's put in the 5 time really doesn't count for very much because there are 6 going to be three jurors that have put in the time that are 7 not going to sit on the jury, so this is just a way of making 8 it her rather than some kind of random draw. 9 I did take a quick look around this morning for 10 some kind of law about when you excuse a juror during a trial 11 and was unsuccessful. To be frank with you, I didn't look 12 very hard because I assumed this doctor would say thumbs up or 13 thumbs down and then that would be clear what to do. I'm also 14 convinced that this is one where, no matter which way I go at 15 this point, it's probably within my discretion because there's 16 enough that she's delaying the trial; there's also enough that 17 she's probably going to be well tomorrow. 18 But just to be on the safe side, we will recess 19 till 9:00 tomorrow morning, and if she does not -- I won't say 20 doesn't show up at 9:00 on the dot, but if she's -- says she 21 feels bad or has any hesitancy or anything at all, we'll go 22 ahead without her. 23 I don't suppose there's a chance to get the 24 comptroller down here this afternoon, is there? 25 MR. FREEMAN: I wouldn't think so, Judge. 7 1 JUDGE POTTER: Okay. I didn't know about 2 whether maybe he was coming in this afternoon instead of 3 tomorrow morning. 4 MR. FREEMAN: I have not heard from Lilly about 5 when he will arrive; I just know they'll have him here at 6 eight in the morning. 7 MR. STOPHER: We'll bring our brief over this 8 afternoon, Judge. Should we bring it here or to the 9 courthouse or someplace else? 10 JUDGE POTTER: I tell you what. Mr. Freeman, 11 could you go make a phone call and find out if he could -- 12 what, Indianapolis is two hours away. See if he could come 13 down here this afternoon, and we'll just take a brief recess. 14 (THE FOLLOWING PROCEEDINGS OCCURRED 15 IN OPEN COURT) 16 SHERIFF CECIL: All rise. The Honorable Judge 17 John Potter is now presiding. Court is now in session. 18 JUDGE POTTER: Please be seated. 19 Ladies and gentlemen, let me tell you what has 20 happened. First of all, I take it -- let me ask you, did 21 anybody have any difficulty observing the admonition about 22 somebody talking to you or communicating with you about the 23 case? Okay. 24 Ms. Davis, as you know, went to the hospital 25 Thursday afternoon. Have I got my days right? Right. And we 8 1 were going to go ahead without her Friday, and the doctor -- 2 we waited, though, to get some confirmation from the doctor, 3 and the doctor that saw her on Thursday said no, he thought it 4 was fine for her to be a juror but she needed to see another 5 doctor, sort of a follow-up. We made arrangements and she saw 6 that doctor the first time she could, at 10:00 this morning -- 7 or, actually 10:30, and that doctor has said she can go on 8 being a juror but she needs to go home, take her medication 9 and rest today. 10 And I'm sure that if we had known at the very 11 beginning it was going to be a half day, a half day and a full 12 day, we would have probably gone ahead last Thursday without 13 her, but it's now been everything's-going-to-be-all-right-in- 14 a-few-hours kind of thing. So I have discussed it with the 15 lawyers, and it is their -- or, it is my decision that we're 16 going to recess until 9:00 tomorrow morning, and if she's 17 still having problems we'll go ahead without her; if she's 18 healthy -- and I've spoken to her and she wants to be a juror 19 and she wants to finish the trial, but we'll go ahead without 20 her. 21 And part of it is that you realize that there 22 are two of you-all whose names are going to be drawn out at 23 random, anyway, and if she's here there will be three names. 24 So that's the decision that's been made. I know this has 25 extended your time here by -- well, actually it would be two 9 1 half days and a full day, I guess adding up to two days. But 2 the lawyers are still confident that the proof will probably 3 finish this week and the case will be submitted to you the 4 very first part of the next week or maybe finish next Monday 5 and maybe be submitted to you next week. They're confident of 6 that. 7 I'm going to give you the same admonition I've 8 given you before. Do not permit anybody to speak to or 9 communicate with you on any topic connected with this case and 10 any attempt to do so should be reported to me. Don't discuss 11 it among yourselves; do not form or express opinions about it. 12 We'll stand in recess till 9:00 tomorrow morning. 13 (PROCEEDINGS TERMINATED THIS DATE AT 11:25 A.M.) 14 * * * 15 16 17 18 19 20 21 22 23 24 25 10 1 STATE OF KENTUCKY )( 2 )( Sct. 3 COUNTY OF JEFFERSON )( 4 I, JULIA K. McBRIDE, Notary Public, State of 5 Kentucky at Large, hereby certify that the foregoing 6 Transcript of the Proceedings was taken at the time and place 7 stated in the caption; that the appearances were as set forth 8 in the caption; that prior to giving testimony the witnesses 9 were first duly sworn; that said testimony was taken down by 10 me in stenographic notes and thereafter reduced under my 11 supervision to the foregoing typewritten pages and that said 12 typewritten transcript is a true, accurate and complete record 13 of my stenographic notes so taken. 14 I further certify that I am not related by blood 15 or marriage to any of the parties hereto and that I have no 16 interest in the outcome of captioned case. 17 My commission as Notary Public expires 18 December 21, 1996. 19 Given under my hand this the__________day of 20 ______________________, 1994, at Louisville, Kentucky. 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 11 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