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 TUESDAY, DECEMBER 6, 1994 15 VOLUME XLVI 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................................See Note 4 * * * 5 WITNESS: ROBERT_P._GRANACHER,_JR.,_M.D. _______ ______ __ __________ ____ ____ 6 By Mr. Stopher........................................... 5 7 By Mr. Smith............................................. 65 8 * * * 9 Hearing in Chambers......................................154 10 Reporter's Certificate...................................185 11 * * * 12 13 *Hearing in Chambers was not made a part of this typewritten transcript per Order of the Court; it is retained on disk, 14 sealed, and in the possession of this Reporter. (38 pages) 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 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 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 SHERIFF CECIL: All rise. The Honorable Judge 10 John Potter is now presiding. All jurors are present. Court 11 is now in session. 12 JUDGE POTTER: Please be seated. 13 Did anybody in the jury have any difficulty 14 observing the admonition about letting anybody communicate 15 with them on this case? 16 How about you, Ms. Davis? Did any of the 17 doctors you've been seeing want to talk to you about this 18 case? 19 JUROR DAVIS-SPALDING: No problem. 20 JUDGE POTTER: Doctor, do you want to step down 21 here and retake the witness stand. Retake the witness stand, 22 Doctor. I'll remind you you're still under oath. 23 Mr. Stopher, do you want to continue with your 24 direct examination of Doctor Robert Granacher. 25 5 1 EXAMINATION ___________ 2 3 BY_MR._STOPHER: __ ___ ________ 4 Q. It's been so long, sir, would you do us all the 5 favor of restating your full name again, please, sir. 6 A. Yes, sir. Robert Phillip Granacher, Jr. 7 Q. Doctor Granacher, on Thursday morning, we were 8 discussing your opinions and the bases or the grounds for your 9 opinions; correct, sir? 10 A. Yes, sir. 11 Q. And if I refer to my notes, sir, you had 12 mentioned three life patterns in Joseph Wesbecker. One was a 13 life pattern regarding aggression? 14 A. Yes, sir. 15 Q. The second was a life pattern regarding mental 16 illness? 17 A. Yes, sir. 18 Q. And the third was a life pattern regarding 19 hostility against Standard Gravure? 20 A. Yes, sir. 21 Q. I believe if I -- my notes are right and in 22 looking at the notes that I made on the big pad, you had 23 discussed the first one, the life pattern of aggression, and 24 had discussed some or perhaps all of the life pattern 25 regarding mental illness. 6 1 A. Yes, sir. I discussed aggression in its 2 entirety, the straight line that ran from Wesbecker to 3 Standard Gravure September 14th, 1989. I would have to look 4 at the pad and the last item to know if I completed the mental 5 illness portion. 6 Q. All right, sir. Let me... I hope it's not 7 significant if I misspelled mental illness. I put in one too 8 many Ls in there. 9 Now, sir, the last entry on this chart, sir, is 10 an entry of 9-11-89, and refers to the last visit with Doctor 11 Coleman. 12 A. Yes, sir. That is the last element I had in 13 terms of discussing the mental illness. 14 Q. All right. Let's go to the third life pattern, 15 and what is the caption or the title for that? 16 A. The caption for that, sir, is Animosity Towards 17 Standard Gravure. 18 Q. And what are the items that are relevant to that 19 topic? 20 A. Now, I'm not going to repeat the items that we 21 went through in aggression. As you recall, I testified to the 22 jury on Thursday that about 1983 is when I could first find 23 that Mr. Wesbecker began to make statements about wanting to 24 harm certain individuals at Standard Gravure. This line -- 25 the aggression line being the straight line, the intertwining 7 1 of the mental illness. We now have the intertwining of his 2 animosity toward Standard Gravure. And I looked for elements 3 in trial testimony that would have to do with this kind of 4 behavior. The first I found was by Mr. Gosling, over a period 5 of time between 1984 and 1988. 6 Q. 1984? 7 A. Yes, sir. 8 Q. To 1988? 9 A. 1988. And that was Mr. Gosling's opinion that 10 he had observed Mr. Wesbecker pace up and down, agitatedly 11 pace up and down by the folder, by that folding machine. Now, 12 that is coupled with the multiple observations in the mental 13 illness section, remember, that I told you where Mr. Wesbecker 14 had been observed in the 1980s about pacing, he had told 15 physicians that he could not sit still at work. So even 16 before Gosling's recollection of this in '84, we find 17 instances in the mental health records and the medical records 18 that this was Mr. Wesbecker's type of behavior. 19 The next is sometime after July of 1986, Mr. 20 Frazier's testimony that Wesbecker was agitated toward Mr. 21 McKeown, Mr. McKeown being a foreman. 22 Then in the late 1980s, in his son James's 23 deposition, Wesbecker discussed with James his fear and 24 concerns about working on the folder and his thoughts that the 25 solvent, one of the solvents used at Standard Gravure, 8 1 toluene, was affecting his mind or affecting him and maybe 2 even affecting him to the point that he could have passed 3 something on to James. 4 Now, if we go back to the medical records, we 5 can find that tied in again in Doctor Beanblossom. Remember, 6 Doctor Beanblossom saw Mr. Wesbecker in the emergency room and 7 Mr. Wesbecker was all concerned about this solvent toluene and 8 actually had brought in articles that he had researched on 9 this, so this was a very pressing concern for Joseph 10 Wesbecker. 11 Then in the nursing note, Ms. Sheehan's note, 12 when admitted to Our Lady of Peace Hospital March 31st, 1987, 13 Wesbecker says to Ms. Sheehan that he was very worried about 14 the excess overtime he was putting in, he didn't like feeling 15 weak, he was angry and he felt like he had been screwed by the 16 company. 17 The next element, May 14th, 1987. 18 Q. 1987? 19 A. Yes, sir. 20 Q. This element has to do with the human relations 21 controversy that arose, and this was the testimony of Mr. 22 Mattingly that Wesbecker was of the opinion that supervisors 23 were forcing him to work on that folder, and Wesbecker wanted 24 Human Relations Commission to get something in writing, 25 something to the effect that you'll never have to work on the 9 1 folder again. That was the statement Mr. Wesbecker wanted in 2 1987, in May of 1987. Mr. Mattingly further testified that 3 there was a tremendous amount of hostility on the part of 4 Wesbecker towards supervisors and the company, the company 5 being Standard Gravure. 6 Mr. Keilman testified in June of '87 -- 7 recollection of June of '87. 8 Q. This is Mr. Keilman? 9 A. This is Keilman's testimony, yes; that Wesbecker 10 thought people were picking on him by putting him on the 11 folder. Now, I found something in Mr. Keilman's testimony 12 that was important to me. I don't know what this one term 13 means, but he said that while working, if Wesbecker missed a 14 paster, it was spelled P-A-S-T-E-R, that they'd ride his butt, 15 meaning the men working in the area would do that. Keilman 16 was of the opinion that that was all in good nature, but he 17 would describe how angry Wesbecker would get at this joking, 18 that he was extremely angry about that. 19 Then we see next, July 8th, '87, Doctor Coleman. 20 Now, this is an example of the interaction of the mental 21 illness and the animosity towards Standard Gravure that -- I 22 think I testified somewhat about this Thursday, that in Doctor 23 Coleman's records we can find that Joseph Wesbecker gave a 24 chief complaint of job stress and that his employer was 25 jerking him around. Now, Mr. Senters testifies over a time 10 1 period somewhere in '87-'88 -- 2 Q. 1987 to what, sir? 3 A. '87 to '88, sir. 4 Q. And this is Mr. Senters? 5 A. Yes, sir. That Wesbecker wrote seven or eight 6 names on a roll of paper that he wanted to get even with. 7 Now, this was paper that was about to go into a reel and I 8 assume that it then went into the reel, but Senters saw 9 Wesbecker do that. Senters further testified -- Senters 10 further testified that three to four times a week Wesbecker 11 would talk of getting even with employees at Standard Gravure. 12 MR. SMITH: We'd object to that, Your Honor. 13 There was no such testimony. 14 JUDGE POTTER: Ladies and gentlemen, again, I'm 15 going to admonish you-all that this Witness has given you the 16 basis for what he thinks went on or the basis for his opinion. 17 He's made certain assumptions about what he thinks happened. 18 The reason you're given these assumptions is so you'll be able 19 to decide what weight and probative value to give his opinion. 20 Objection is overruled. 21 Q. Three to four times per week? 22 A. Yes, sir. Three to four times per week would 23 talk of getting even. 24 The next element of importance to me was again 25 testimony by Mr. Keilman. Mr. Keilman was of the opinion that 11 1 this was somewhere in July or August of 1988, that Wesbecker 2 told him that Standard Gravure was going to cut off his 3 benefits, he was afraid that this was going to happen. 4 We next find August 10th, 1988, in Doctor 5 Coleman's records that Wesbecker was feeling increased 6 pressures at work and had called Doctor Coleman to complain 7 about this. 8 Then in Ms. Bryant's deposition, about September 9 27th of '88, somewhere in September of '88, Wesbecker had said 10 he thought that they were going to take his pension, that 11 Standard Gravure was going to take his pension. 12 Lucas testifies that in about February of '89, 13 Wesbecker told him that the company was out to get him. 14 James Wesbecker recalls in February of '89, when 15 talking with his father, that Joseph Wesbecker wanted to go 16 back to work but he didn't want to be on the folder; if he did 17 go back to work, he wasn't sure he could handle it. 18 February 27th, 1989, a letter is issued to 19 Wesbecker describing his present LTD benefits and that on 20 August 1st, 1989, those benefits are going to be reduced to 21 $391.21 per month. 22 MR. SMITH: Object to that, Your Honor, that 23 letter does not say that. Absolutely doesn't say that. 24 JUDGE POTTER: Mr. Smith, the jury has the 25 letter. This is the Doctor's characterization of what he 12 1 believes the letter says, and the jury can make up their mind 2 whether the Doctor has done that correctly today. Overruled. 3 A. McMillan, Mr. McMillan testifies that sometime 4 in 1989, Wesbecker said that Shea and McCall were trying to 5 force him back to work -- force Wesbecker back to work. If he 6 didn't go back to work they were going to take his pension; 7 that was Wesbecker's opinion to Mr. McMillan. 8 Also sometime in 1989, Mr. Frazier recalls or 9 testifies about a recollection that Wesbecker told him he 10 hated being off work; he did not want to be retired; he was 11 very bitter at his company and hated it -- hated them. And 12 Mr. Frazier used a term to describe Mr. Wesbecker and that 13 term was paranoid. 14 Then the last element of animosity was Lucas's 15 testimony that sometime in July 1989, Wesbecker told him that 16 Standard Gravure was out to get him. 17 Q. Doctor Granacher, with regard to these three 18 listings that we have now made, what is the significance of 19 these items with regard to Joseph Wesbecker and, in 20 particular, his actions on September 14, 1989? 21 A. Well, sir, they form the basis for Mr. 22 Wesbecker's actions. As I told you Thursday, these three life 23 lines of his, these three multiple elements in his life, all 24 were focusing in one direction that came to a crisis point 25 September 14th, 1989; the aggression being pretty much a 13 1 straight line involving not only Standard Gravure but, recall, 2 Doctor Beasley, Melissa, others, and then this intertwining of 3 mental illness and the intertwining of his animosity toward 4 Standard Gravure. What Wesbecker did is take his general 5 tendency to be an aggressive person and think of killing 6 others and convert that to a specific intent to harm and kill 7 and maim people at Standard Gravure. He began forming that 8 specific intent in 1983 when he began to name specific people 9 at Standard Gravure that he wanted to kill or should be 10 killed. It began to snowball and it evolved and it became 11 more and more dramatic. 12 And, in my opinion, there are two crucial events 13 that, had they not happened, the outcome might have been 14 different. The first event was receiving notice from Standard 15 Gravure that his pension was going to be cut. His perception 16 of that, Joseph Wesbecker's perception of that with his son 17 now ready to go to graduate school and him no longer working, 18 Wesbecker no longer working, was that there was going to be a 19 marked reduction of funds. 20 The next major event was the loss of the last 21 link he had with the family he loved the most, and that was 22 when his grandmother died in August of 1989. When she died, 23 at that point there was nothing left for him and the plan 24 begins to evolve. However, we know that that intent, as I 25 said, was there before she died because of the way he 14 1 purchased weapons, the way he practiced with weapons, the 2 significant planning that went into what he did on that day. 3 But these three lines all converged on September 14th, 1989, 4 and resulted in the devastating, terrible murders that he 5 committed. 6 Q. Doctor Granacher, with regard to Joseph 7 Wesbecker's actions on September 14th, 1989, do you have an 8 opinion, sir, as to whether or not those actions were 9 intentional or whether they were unintentional? 10 A. I do have an opinion, sir, and that opinion is 11 they were entirely intentional. He did what he intended to 12 do. 13 Q. With regard to his actions on September 14, 14 1989, and perhaps even leading up to that date, what items of 15 intent are significant to you or what items indicate intent? 16 MR. SMITH: May we approach, Your Honor? 17 (BENCH DISCUSSION) 18 MR. SMITH: What would be intentional in the 19 mind of Mr. Wesbecker would be speculation. This Witness is 20 not any better able to know what Mr. Wesbecker intended than 21 any other witness. 22 JUDGE POTTER: What kind of things are we going 23 to go through, Mr. Stopher? 24 MR. STOPHER: He's going to describe what 25 indications to him as a psychiatrist indicate that these 15 1 matters were by intent as opposed to being drug induced. 2 JUDGE POTTER: What kind of things are we 3 talking about? 4 MR. STOPHER: Items about his preparation and 5 his actions on that date. 6 MR. SMITH: And he can draw a conclusion that he 7 intended to do that? 8 MR. STOPHER: Sure. As opposed to being drug 9 induced. This is an opinion that he expressed in his 10 deposition and we notified about in his disclosure about 11 expert witnesses. He's had the opinions all along. 12 MR. SMITH: It doesn't make it admissible. 13 MR. STOPHER: Your Honor, I think that any 14 psychiatrist is able to give an opinion based upon whatever 15 facts and information he may have as to the state of mind of 16 the patient. That's what insanity and sanity are all about. 17 This Witness has qualified himself that he's experienced to do 18 it and has already in this case. 19 JUDGE POTTER: So he's just going to talk about 20 collecting things up and putting it in the car and the blanket 21 and going straight from here to there and that sort of stuff? 22 MR. STOPHER: Sure. 23 JUDGE POTTER: I'm going to sustain the 24 objection. I don't think that's a topic on which the expert 25 witness will be helpful to this jury. The jury can listen to 16 1 the acts he took on that day about whether or not he -- 2 MR. STOPHER: Is he not entitled to say that 3 those indicate to him as a psychiatrist intent? Those are 4 critical items on which this gentleman has been an expert in 5 this case and has given his deposition. I mean, that's 6 essential to my case. 7 JUDGE POTTER: I think everybody here knows he 8 intended to go down there, doesn't he? 9 MR. STOPHER: The other side has taken the 10 position that he didn't intend to do this, that Prozac made 11 him do it. 12 JUDGE POTTER: I understand their position that 13 Prozac made him do it, just the way this guy's testified that 14 the mother's death made him do it. If he's just going to say 15 this guy was, you know, not some kind of drug person on a rip, 16 you know, a competent person doing what he intended to do, I 17 think the jury can hear -- you know, they've heard the 18 evidence, they can make up their mind. I'm going to sustain 19 the objection to him talking about what his intent was on 20 September 14. 21 MR. STOPHER: Your Honor, I would like for you 22 to hear his answer to that because that is essential to my 23 case, that this gentleman has an opinion as an expert about 24 what motivated him to do that. And keeping that out even 25 though the jury may already have that conclusion in mind and 17 1 even though it may be obvious, this gentleman, I think as an 2 expert witness, is entitled to say that. 3 JUDGE POTTER: I tell you what. We'll take a 4 break and you can run him through it. If I don't let it in, 5 it can be avowal, and if I change my mind, I'll call the jury 6 back. 7 (BENCH DISCUSSION CONCLUDED) 8 JUDGE POTTER: Ladies and gentlemen, we'll take 9 a 10-minute recess -- make it a 15-minute recess, and then it 10 will be the morning recess. As I've mentioned to you-all 11 before, do not permit anybody to talk to you about this case; 12 do not discuss it among yourselves and do not form or express 13 opinions about it. We'll take a 15-minute recess. 14 (JURORS EXCUSED; AVOWAL TESTIMONY BEGINS) 15 JUDGE POTTER: Doctor, I'll remind you you're 16 still under oath. 17 Mr. Stopher. 18 Q. Doctor Granacher, do you have an opinion as to 19 whether or not Mr. Wesbecker's actions on September 14, 1989, 20 were intentional or unintentional? 21 A. They were intentional, sir. 22 Q. And would you explain the bases and the 23 foundations for that opinion as a psychiatrist? 24 A. Yes, sir. In April or May 1987, Wesbecker 25 brought a gun into the plant at Standard Gravure and said he 18 1 was going to shoot Popham, Cox and McKeown. The pistol was in 2 a paper sack, lunch-type sack, and that was testified to by 3 Mr. Lucas. 4 In February of '88, Lucas told Mr. Cox that 5 Wesbecker purchased a gun and was going to use it on Cox, 6 McKeown and Popham and that Cox was Number One on the list. 7 Cox told Mr. Throneberry. Throneberry offered to provide 8 security for his home. This became a standing joke, and when 9 people would see Cox they would say, "When Joey comes back in 10 here he's going to get you," referring to Wesbecker. 11 Wesbecker developed a list of people and he had a list of 12 persons who had wronged him, Brenda apparently helped him 13 compile that list; it was on three pages of paper, 14 handwritten. 15 August 26, '88, Wesbecker purchased the pistol 16 that he killed himself with. It was a Sig Sauer 17 nine-millimeter pistol, bought it from Steve Estes at Archery 18 World. 19 September 10th, 1988, Wesbecker arranged for his 20 own cremation through Owen's Funeral Home, requested total 21 consumption of the body, no ashes to be returned. As we know, 22 that later was somehow changed, but that was his original 23 intent with the funeral home, with Mr. Addams, I think. 24 September 27th, '88, Wesbecker starts a 25 systematic move to divest himself of his property. He deeded 19 1 the 7300 Nottoway Circle property to Brenda Wesbecker Camp. 2 It was Brenda Wesbecker at that time. 3 On January 18th, 1989, there were a number of 4 children in Stockton, California, shot and killed by an 5 assailant with an AK-47. The next day, January 19th, 1989, 6 Wesbecker goes to Jack Tilford's gun store and purchases a 7 Norinco AK-47, his first AK-47. 8 September 18th, 1989, roughly a month later, 9 Wesbecker goes back to Tilford's Gun Sales. 10 Q. I'm sorry. You said September 18th? 11 A. Excuse me. February. Less than -- around a 12 month later, February 18th, 1989, Wesbecker returns to 13 Tilford's Gun Sales, places a hundred-dollar deposit for two 14 Mac-11, nine-millimeter semiautomatic handguns; assault-type 15 handguns, Uzi-type model. 16 September 2nd, 1989, Mr. Wesbecker resigned from 17 his union. Four days later, on September 6, 1989, Time 18 Magazine publishes an article. 19 Q. You keep saying September? 20 A. Excuse me. I don't know why I do that. The two 21 is clearly a two and not a nine. 22 Q. All right. 23 A. February 6, 1989, the Time Magazine article is 24 published on the Stockton shootings. That magazine was found 25 in Wesbecker's home on -- after the police cordoned it off 20 1 lying on the dishwasher, if I'm not mistaken, open exactly to 2 those pages. It was found after the shootings at Standard 3 Gravure. The day after the Time Magazine article, starting 4 February 7th, 1989, Wesbecker begins to systematically shut 5 down his home. He shuts the water off at his house. February 6 8th of '89, discontinues the phone service, and two days 7 later, on February 10th, 1989, Wesbecker goes back to 8 Tilford's Gun Sales and makes the final purchase on the 9 Mac-11s. He tells Mr. Gosling about those Mac-11s and Gosling 10 quotes him as saying, quote, needs them for the bosses, 11 period, end of quotes. 12 Wesbecker's behavior appeared to be clearly 13 changing in February of 1989. That observation was testified 14 to by a man named John Henry, who was hired by Wesbecker to do 15 some work at his home. The work was over the time period of 16 February 15th and 16th, 1989. Henry -- Mr. Henry found 17 Wesbecker's home to be very spooky, told his wife he didn't 18 want to return and, in fact, had to go out and get a number of 19 containers of water, if I'm not mistaken, because there was no 20 water available. 21 On or about this same time period, second week 22 of February, 1989, Lucas visited Wesbecker in his home. He 23 saw a Soldier of Fortune magazine. He described Wesbecker as 24 making little sense, jumping from topic to topic, but talking 25 about people that he wanted to harm; these included Paula 21 1 Warman, Don McCall, Jim Popham, Mr. Sitzler. 2 Now, I've already told the jury about the 3 February 27th, 1989 letter. On May 1st, 1989, Wesbecker 4 upgrades his AK-47. He trades in the Norinco AK-47 for a 5 Polytech AK-47S, a more advanced, more expensive model. 6 During May of 1989, I could not really tell from Tilford's Gun 7 Sales, but Wesbecker buys 1100 rounds of Nato 7.62 millimeter 8 ammo for the AK-47. That was 1,100 rounds. 9 July 1989, Wesbecker meets with Mr. Lucas, 10 trying to get Lucas to engage him in a double suicide and 11 let's both take ourselves out. Talked of mentioning -- talked 12 of blowing the plant up at that time, the Standard Gravure 13 plant, and that's the time when Wesbecker mentions AK-AK, a 14 term of art in the trade for the sound of a semiautomatic or 15 automatic weapon. 16 Around July 18th, 1989, is the approximate date 17 Wesbecker was last seen at the Knob Creek Gun Range target 18 shooting with the AK-47. Once per year that range holds a 19 machine gun competition and people are allowed to fire machine 20 guns and assault rifles. 21 August 7th, 1989, Wesbecker's grandmother dies. 22 She was his last emotional support other than James, in my 23 opinion, to his extended family. 24 We now move into September of 1989. September 25 6, 1989, there was a problem with the Polytech AK-47. He took 22 1 it in to have it repaired. It was the opinion of the gunsmith 2 that it had been corroded from shooting Chinese ammunition, 3 this ammunition contains I think fulminated mercury and is 4 very corrosive to guns, and it was brought in to be cleaned. 5 Four days later, September 10th, 1989, Wesbecker 6 goes to Ray's Gun Shop and purchases 200 rounds of full metal 7 jacket nine-millimeter ammo. Full metal jacket ammo is 8 necessary for proper function in semiautomatic weapons; 9 soft-nose rounds do not work well. 10 Now, my opinion at this point is we're seeing a 11 pattern of Wesbecker buying guns at different gun shops, 12 purchasing ammo at different gun shops, and did not appear to 13 me that he ever went back to the same gun shop. Like most 14 persons who were involved with sporting and guns and hunting, 15 they generally have a favorite gun dealer and generally work 16 with a favorite vendor, and that did not appear to be the case 17 with Wesbecker's pattern of behavior. 18 September 12th, 1989, Wesbecker writes Check 19 No. 205, payable to cash on Liberty Bank of Louisville, the 20 amount of $70,000. He deposited that into James Wesbecker's 21 L&N Credit Union account. The day after, he told his son 22 James that he had a plan, that things were taken care of, 23 don't worry about graduate school. The same day that he 24 writes the $70,000 check, he goes back to Danny's Gun Repair, 25 picks up the Polytech AK-47, paid $20 for the service. I 23 1 think the testimony has been that the gas port and gas piston 2 were corroded from the primer in the ammunition. 3 September 14th, 1989, during the shootings 4 themselves, Wesbecker made discriminating actions of sparing 5 certain people. He did not go into that plant like Rambo, 6 like a delirious, deranged, toxic individual. He made 7 discriminating actions about some persons that he spared, John 8 Tingle, for instance, and in fact had a conversation with Mr. 9 Tingle. Angela Bowman, had the opportunity to kill her, the 10 testimony was -- from her about her baby and he did not. 11 It appears to me he made a mistake in shooting 12 Dickie Barger. When I went through that plant, as I recall -- 13 and I do not have an encyclopedic memory of it, but, as I 14 recall, the stairs that Mr. Barger came down, they have a 15 cutout. And since Wesbecker was on a lower level than Mr. 16 Barger, it would seem to me that the first items of view that 17 Mr. Wesbecker would have in his position would be Barger's 18 feet and his knees and his legs and his trunk and the last 19 thing he would see would be his head. He walked over to Mr. 20 Barger's body after he shot him and apologized for shooting 21 him. 22 Wesbecker had multiple opportunities to escape 23 and brought into that plant other elements that show to me 24 specific intent. The weapons recovered at Standard Gravure by 25 the police were a Polytech AK-47 rifle, Smith & Wesson .38 24 1 caliber revolver, a Sig Sauer nine-millimeter pistol, two 2 Mac-11 nine-millimeter weapons and a bayonet. He brought with 3 him, in my judgment, a fall-back weapon should any one of the 4 semiautomatic weapons jam; that was the revolver. Revolvers 5 do not jam. The reason I say that is because he brought a 6 plastic bag containing assorted rounds of .38 caliber 7 ammunition. He did not just bring a .38 caliber weapon loaded 8 with only the rounds it would hold. When I reviewed the 9 ammunition recovered, in my opinion, the ammunition indicates 10 that this man came into the plant fully intent on mayhem, 11 planning for the possibility of being barricaded and planning 12 for the possibility of a massive shoot-out. 13 My basis is because of the following: Recovered 14 were 558 rounds of nine-millimeter ammunition; 571 rounds of 15 7.62 ammunition, which is for the AK-47, and the 16 nine-millimeter ammunition would be either for his Sig Sauer 17 pistol or the Mac-11s; 5 magazines of 7.62 ammunition, I think 18 they were 30-round magazines, which would be 150 more rounds; 19 8 magazines of nine-millimeter ammunition. I do not know the 20 size of those; 71 live rounds of 7.62 ammunition, so if we 21 take -- and an AK-47 magazine containing 29 live rounds. So 22 he came into that plant with roughly 1500 rounds of 23 ammunition, far more than necessary to do what he intended to 24 do. 25 On the day he met with Doctor Coleman, Joseph 25 1 Wesbecker had the intent to do what he did in his mind as he 2 sat with Doctor Coleman in his office. That explains to me 3 the intense level of distress Doctor Coleman noted, unknown to 4 Doctor Coleman these ideas were in Joseph Wesbecker's head. 5 How do I know that? Because on the very same day he told his 6 son James, "I have a plan. Don't worry about it." And he 7 began the completion of that plan on the 12th of September, 8 1989. 9 Q. Doctor Granacher, is this an opinion based on 10 your particular field of expertise in forensic psychiatry? 11 A. Yes, sir. 12 Q. Is it an opinion that you render with regard to 13 intent versus unintentional and sane versus insane with regard 14 to perpetrators of homicidal acts? 15 A. Yes, sir. 16 (AVOWAL TESTIMONY OF DOCTOR GRANACHER CONCLUDED) 17 MR. STOPHER: Your Honor, we tender that answer 18 to the Court as qualified under the rules as an expert 19 opinion, including the bases for that opinion. 20 JUDGE POTTER: Mr. Smith, is there anything you 21 want to say? 22 MR. SMITH: Nothing in addition that there's 23 just no basis whatsoever for him to go into the intent. We've 24 gone from the sublime to the ridiculous in the Witness's 25 answer. He's no more qualified to render that opinion than 26 1 any jury is. 2 JUDGE POTTER: I'm going to sustain the 3 objection. I really think he's getting into an area where the 4 jurors are as qualified as he is to piece together how much 5 ammunition he took and whether he drove his car and whether he 6 misstook Mr. Barger for somebody else or whether he -- all 7 these fact things they can sort out themselves and then draw 8 their conclusion as well as he can. 9 Let me get my sheriff to get the jury back in. 10 MR. SMITH: Can we take a couple minutes' break, 11 Your Honor, or do you want to wait? We can wait. 12 JUDGE POTTER: How much more have you got, Mr. 13 Stopher? 14 MR. STOPHER: At least an hour, Your Honor. 15 JUDGE POTTER: Well, I'll get the jury back. 16 MR. STOPHER: Your Honor, in light of that 17 ruling, we would want that testimony to be included in this 18 record as avowal testimony. 19 JUDGE POTTER: Okay. It will be included. 20 (JURORS RETURN TO OPEN COURT) 21 SHERIFF CECIL: The jury is now entering. All 22 jurors are present. Court is back in session. 23 JUDGE POTTER: Please be seated. 24 Doctor Granacher, I'll remind you you're still 25 under oath. 27 1 Mr. Stopher. 2 Q. Doctor Granacher, let me go back for just a 3 moment to a letter that you mentioned earlier and let me refer 4 you to Plaintiffs' Exhibit No. 24, and ask you if you would 5 quickly scan that letter and tell us the date on which Mr. 6 Wesbecker's benefits were to be reduced to $391. 7 A. Mr. Stopher, the letter in front of me is dated 8 February 27th, 1989, addressed to Mr. Wesbecker on Standard 9 Gravure letterhead, signed by Paula Warman, and states in the 10 bottom of the first paragraph, quote, beginning October 1st, 11 and continuing each month thereafter for the duration of your 12 disablement until age 65, your monthly payment will be 13 $391.21, period, end of quotes. 14 Q. That's the letter dated February 27, 1989? 15 A. Yes, sir. 16 Q. Doctor Granacher, would you explain, first of 17 all, your understanding of the term impulse control? 18 A. That term is a term of art in psychiatry that -- 19 psychiatric medicine that deals with certain disorders that 20 have an impulsive element to them, implying that there's some 21 problem with controlling impulses. 22 Q. What are impulsive elements? 23 A. Well, the common impulse control disorders are 24 things like kleptomania, stealing, compulsive stealing, 25 various kinds of sexual compulsions, fettishes, exhibitionism, 28 1 those kinds of issues. 2 Q. Doctor Granacher, in connection with Joseph 3 Wesbecker, do you have an opinion, sir, as to whether or not 4 Prozac caused him to lose impulse control on September 14 and 5 commit these murders and assaults at Standard Gravure? 6 A. I do have an opinion on that, sir. 7 Q. And would you tell us what that opinion is. 8 A. My opinion is Prozac had virtually nothing to do 9 with that. My basis for that opinion goes all the way back to 10 1972. In 1972, Joseph Wesbecker was prescribed a medicine 11 called Presate, P-R-E-S-A-T-E. It's an amphetamine drug, a 12 stimulant used for weight -- was used for weight control. 13 There's no evidence in the medical records that that ever 14 caused a problem with Joseph Wesbecker being given a 15 stimulant. 16 Second basis: I testified to you on Thursday 17 that in early 1980s, Joseph Wesbecker was begun on some 18 medicines that contained compounds called neuroleptics. These 19 are substances that can, in some people, produce a problem 20 called akathisia, a neurological side effect where you get 21 motor restlessness and jumpy inside. That never happened with 22 Joseph Wesbecker and he was on neuroleptics for about two and 23 a half years. 24 In June 1988, Joseph Wesbecker was prescribed 25 Prozac by Doctor Coleman, the first time he took Prozac. 29 1 Wesbecker's complaint to Doctor Coleman was it made him too 2 sleepy, not that it released some sort of impulses. 3 The fourth line of evidence to me as a medical 4 doctor that this did not happen with Prozac is looking at the 5 careful selective planning that Wesbecker did at least six 6 years before these shootings took place, listing people he 7 wanted to harm; telling others about that; the careful 8 planning that went into divesting himself of his property, 9 that was not done in an impulsive manner whatsoever; deeding 10 the property away on Nottoway; writing a check for 70,000 to 11 go into his son's account at L&N credit; cutting off the power 12 and so forth to his house; systematically going from gun store 13 to gun store to make sure he didn't go to the same gun store 14 to pick up and purchase weapons; not liking his first AK-47 15 and getting a different AK-47; recognizing that the AK-47 he 16 used to kill these people had been corroded by Chinese 17 ammunition and now needed to get it repaired; taking that in 18 to get it repaired; going back to pick it up; having the 19 little slip necessary to pick up the weapon. These kinds of 20 little intense detail that we see in the pattern of Joseph 21 Wesbecker is not impulsive; it's well planned, well thought 22 out and very precise thinking. 23 Q. Doctor Granacher, with regard to the financial 24 planning that you mentioned, would you detail for us any 25 specific items that indicate to you a plan with regard to his 30 1 money or his property? 2 A. Yes, sir. Joseph Wesbecker, as I read all the 3 information, throughout his life prided himself on having 4 great facility and use of money. He prided himself on being 5 able to make wise investments and make his money grow. He was 6 not someone that just pitched his money to the wind and bought 7 fast cars and went to the horse races. He, first of all, 8 obviously to me as a psychiatrist, understood the nature of 9 deeding his house to Brenda. Now, I consider that to be 10 money, assets; it has value, it's worth value. His statement 11 was something about he didn't want two or three others 12 quibbling or fighting over it. So that's one element. 13 He had complex and multiple conversations with 14 his son James about James's future. How much was it going to 15 cost to go to graduate school, exactly what was the figure. 16 As James put it, it came in at about 50 or 60 thousand dollars 17 was what James thought this was going to take. The amount of 18 money that Joseph Wesbecker wrote on Libery Bank on September 19 12th, 1989, and deposited into L&N Credit Union that same day 20 was more than enough to meet the needs of what James told him 21 it was going to be. But Wesbecker had a good understanding of 22 these kinds of things. He had a discussion with his son James 23 about going to North Carolina to set up residency because it 24 would be cheaper and he would be able to get his tuition at 25 North Carolina State as a resident of North Carolina, rather 31 1 than have to pay out-of-state rates. 2 Joseph Wesbecker was frugal in the weapons he 3 purchased. He didn't go out and buy a $3,000 308 sniper 4 rifle; he purchased weapons that would do the job that were of 5 reasonable cost. 6 So there were multiple elements to me that show 7 that Joseph Wesbecker had a clear understanding of money, how 8 it's to be spent, how to get rid of his assets, frugal about 9 his own demise, frugal about how he was going to have his 10 ashes taken care of. He didn't go out and order a $5,000 11 prepaid funeral. I think it was six hundred and some dollars 12 to have himself cremated and get rid of the ashes, didn't want 13 anybody to have them. That later was -- Brenda didn't like 14 that, but that was how he initially wanted to set that up with 15 Mr. Addams. 16 So Joseph Wesbecker had very clear 17 understandings about money. To me, he had clear intent of 18 divesting himself of all of his assets before he killed the 19 people at Standard Gravure, and he had put that plan into 20 place and had fully finalized that plan. 21 Q. Doctor Granacher, with regard to the diagnosis 22 or psychiatric diagnoses of Joseph Wesbecker, were they always 23 consistent? Were they always the same throughout his years of 24 treatment? 25 A. Yes, two elements of them were consistent. 32 1 There were different diagnoses, many different diagnoses, but 2 there were two elements in all the diagnoses I saw that were 3 always consistent. One element was depression and the second 4 element was personality disorder. Some people called it 5 schizoid, some people called it paranoid, but those two 6 elements were always there even though the kind of depression 7 appeared to be of different opinions by different doctors: 8 depressive neurosis, dysthymia, major affective disorder, 9 atypical bipolar disorder, schizoaffective depression. But 10 those are all still depressive disorders. 11 Q. Doctor Granacher, you mentioned schizoaffective 12 disorder. What is schizoaffective disorder? 13 A. Well, sir, it is a disorder that lies on the one 14 hand between an illness called schizophrenia, and on the other 15 hand between an illness called depression. Depressions are 16 affective disorders. So it lies somewhere in between. It has 17 elements of schizoid, such as Doctor Buchholz found, the 18 psychologist, which describes a person who is -- doesn't make 19 friends easily, somewhat of a loner, difficulty with 20 interpersonal relationships, seclusive, has sometimes obscure 21 or bizarre thoughts, and on the other hand is depressed, and 22 that type of individual would be called a schizoaffective 23 person. 24 Q. In connection with the elements of this schizoid 25 half of that diagnosis, is that a personality disorder or is 33 1 that a mental illness? 2 A. In Joseph Wesbecker's case, sir, in my opinion 3 it was a personality disorder, a schizoid-type personality 4 disorder with paranoid features. To be a mental illness, it 5 would have to be the schizophrenia-type illness. And I'm not 6 demeaning anybody, but those kinds of illnesses someone would 7 be crazy or psychotic, unable to know what was real from what 8 wasn't real. 9 Q. Can you clear me up at least, sir, what's the 10 difference between a mental illness and a personality 11 disorder? 12 A. Well, there are two very different conditions. 13 A mental illness, for the most part, is a disease of the 14 brain, depression, panic disorder, anxiety, schizophrenia; 15 that's why we use medicines to treat them. There's something 16 chemically wrong in the brain. A personality disorder, on the 17 other hand, is where our normal -- all of us have a 18 personality. It's God given, everybody is born with a 19 personality. It's there. It's pretty much formed by the time 20 we're a late teenager or young adult, and it stays basically 21 the same the rest of our life if we don't have a stroke or get 22 Alzeimer's disease or something that affects our brain tissue. 23 It becomes a disorder when certain personality traits become 24 so exaggerated that they interfere with one of three things; 25 your ability to run your life, how you get along with other 34 1 people, and how you do your job. 2 Q. In Joseph Wesbecker's case, did he have a 3 personality disorder that affected those items? 4 A. Yes, sir; he did. There was an MMPI test, a 5 Minnesota personality test administered to Mr. Wesbecker in 6 1983, that documents personality disorder. There was one in 7 1987, by Doctor Buchholz, that documents personality disorder. 8 And, then, in my opinion as a psychiatrist, his life pattern 9 is consistent with an individual who has a personality 10 disorder. 11 Q. Now, Doctor Granacher, I thought on Thursday you 12 said that in your opinion the psychiatric diagnosis of Joseph 13 Wesbecker is not particularly relevant to the cause for what 14 he did on September 14, 1989. Did I -- 15 A. I did say that; yes, sir. 16 Q. Would you explain that to us, please, sir? 17 A. Yes, sir. The diagnosis, any mental diagnosis 18 given to a person does not tell you what's in the person's 19 mind. The cause of a person's behavior, such as the acts 20 Joseph Wesbecker committed, are related to what's in his mind, 21 not his medical diagnosis. 22 Q. Doctor Granacher, going back then to the 23 discussion about schizoaffective disorder, is Prozac used from 24 time to time to treat schizoaffective disorders or -- 25 schizoaffective disorders? 35 1 A. Yes, sir; it is, if the person is depressed. I 2 use it for that if a person is depressed. Psychiatrists 3 across the country use it for those kinds of disorders if the 4 person is depressed. 5 Q. And have you used Prozac over the course of the 6 last approximately six years in connection with 7 schizoaffective disorder patients who are depressed? 8 A. Oh, yes. I've used Prozac for that, as well as 9 other types of disorders. 10 Q. Does it in those patients cause violence or loss 11 of impulse control? 12 A. No, it does not. Antidepressants uniformly 13 reduce violence; they don't increase violence. 14 Q. Doctor Granacher, in connection with Prozac, do 15 you have an opinion based on your clinical experience as to 16 whether or not Prozac causes or induces violent or homicidal 17 behavior in people that take it? 18 A. I do have an opinion. That opinion is it does 19 not. My basis for that opinion is there is not a single 20 medical article in all the world literature of the advanced 21 nations that do this kind of research: Europe, Soviet Union, 22 Japan, United States, Australia, New Zealand, South America, 23 that shows any antidepressant has ever caused homicides in any 24 human being on this planet, not a single medical article 25 stating that. That's one basis. 36 1 Second basis is in the medical textbooks -- I'm 2 going to give you a big word here -- on the psychopharmacology 3 of aggression, the pharmacology that deals with drugs that 4 affect behavior, there's one finding that we know about 5 antidepressants. Every antidepressant ever developed to be 6 used in a human being uniformly reduces aggression, and in 7 particular, predatory aggression, going after someone. 8 Q. What is, first of all, predatory aggression, 9 sir? 10 A. Predatory aggression is -- it's easier for me to 11 explain this to you with things we all are familiar with, 12 animals. Predatory aggression is what my cat does if it sees 13 a mouse. It will see that mouse and then it goes into a 14 particular type of behavior, lowers its body, lowers its 15 silhouette, forms the intent to get that mouse, and then 16 stalks it and proceeds systematically to go after that mouse 17 very quietly, stealthily, without warning, and gets the mouse. 18 That's predatory aggression. 19 Predatory aggression is what a coyote does to 20 get a rabbit. Predatory aggression is what a -- any 21 meat-eating animal does to get its food. It has a specific 22 goal and the goal is to get that creature, take it out and 23 kill it. Predatory aggression is what Joseph Wesbecker did. 24 Human beings are not natural predators, except after each 25 other and to hunt animals. 37 1 Q. Are there other types of aggression other than 2 predatory aggression? 3 A. Oh, yes. The simplest other type, simple 4 explanation of another type would be affective aggression. 5 Affective has to do with emotional. Again I can use my big 6 cat to describe this. If I -- my cat has urinary tract 7 infection presently, so the cat went to the vet, and I had to 8 get some antibiotic for the cat. Trying to give an 18-pound 9 tomcat an antibiotic with a baby dropper is a real problem, 10 and he now knows that when I -- even if I hide this, that I've 11 got this thing. He backs into a corner or gets under the 12 couch, opens his mouth, hisses, swipes at me. He's not trying 13 to hurt me; he's not coming after me; he's not a predator 14 towards me, but he's saying get out of my space, stay away 15 from me or I'm going to scratch you or bite you. That is 16 affective aggression. That is a recoiling back, getting away 17 from someone, yelling, screaming, making some sort of display 18 and saying stay out of my space. That's a different kind of 19 aggression than predatory aggression. 20 Q. Doctor Granacher, in connection with these 21 topics, have you from time to time researched these items? 22 A. Yes, sir; I have. 23 Q. Prior to being employed by me in this case, had 24 you researched the subject of violence or prescription drugs 25 in connection with violence? 38 1 A. I had, sir. No one who lives in Kentucky could 2 not know about this case, so in late 1980, I undertook to try 3 to look at the world literature to see what was out there in 4 terms of drugs that caused aggression or drugs that reduced 5 aggression. It had to do with the -- what's called the 6 biochemistry of aggression; what's going on in the brain in 7 terms of chemicals that regulate aggression. And I did do a 8 number of computer searches through various computer methods 9 to see what kind of literature was out there, yes. 10 Q. And at the time that you did that research, how 11 mechanically or through computers did you do that kind of 12 research? 13 A. Well, it's very simple that if your computer has 14 a modem, you know, an electronic device that lets you go into 15 a telephone line, you can dial up a database like the National 16 Library of Medicine and through your computer put in headings. 17 You know, you could put in aggression, dash, predatory, dash, 18 affective, dash, biochemistry, dash, psychopharmacology, and 19 the computer will search all the medical articles and research 20 articles that are listed in the big computer collection in the 21 National Library of Medicine. It will then pull those out and 22 ask you if you want to print them in your office, and if you 23 do, you can print them on your printer and it will print out 24 an abstract or a little summary of each article for you. 25 Q. Is that something that only you can do, sir? 39 1 A. Oh, no. It can be done by virtually anyone who 2 has a computer and knows how to do a computer search. In 3 fact, I don't do them myself at all; I have skilled employees 4 that do that for me. 5 Q. At the time that I contacted you about appearing 6 here as an expert witness, had you completed that computer 7 search? 8 A. No, I had not. 9 Q. Did you tell me or tell anyone with Lilly that 10 you had done that in the past or had printouts of abstracts? 11 A. I did not, sir. I had an ethical problem at 12 that point. You asked me if I would get involved in this case 13 and I told Mr. Stopher I would. At that point I destroyed the 14 information. 15 Q. And why did you destroy those computer 16 printouts? 17 A. Ethically, it would have been -- first of all, 18 in my judgment and the ethics of this in forensic psychiatry, 19 it would have been very unethical for me to write an article 20 either way; either for Prozac causing aggression or Prozac not 21 causing aggression and publish that with my name on it in the 22 midst of the investigation, discovery of this case, and then 23 come into trial as an expert witness having written such an 24 article. That's unethical if you know you're going to be a 25 witness. To keep the playing field level, I didn't tell 40 1 anybody about it. Now, it was discovered later, but I didn't 2 tell Mr. Stopher, I didn't tell Mr. Smith, I didn't tell 3 anybody. We just wiped it -- or I wiped it. 4 Q. Can that research be duplicated at any time? 5 MR. SMITH: Objection, leading, your Honor. 6 JUDGE POTTER: Overruled. 7 A. It can, sir. Most of it has been done. I have 8 information that was compiled by Doctor Fuller, and virtually 9 every usable thing that I found was in Doctor Fuller's 10 information. I don't know Doctor Fuller, but I noticed that 11 Doctor Fuller had testified and I had information that he had, 12 all the same articles are in there. There isn't anything 13 magic about it. These articles are out there. Anybody that 14 knows how to do the search can do it. The University of 15 Louisville can do it. Any hospital in this city can do it; 16 any hospital in my city can do it; any medical practitioner 17 who knows how to do databases; any Ph.D. psychologist; any 18 pharmacologist; any Ph.D. scientist; Mr. Stopher's law firm 19 can do it; Mr. Smith's law firm can do it. Anybody can do 20 anything with database, it's open to any citizen -- well, you 21 don't even have to be a citizen. It's open to anybody in the 22 United States that wants to tap into it with a computer. 23 Q. Doctor Granacher, let me switch topics with you 24 to another subject matter. Is Prozac a stimulant like an 25 amphetamine? 41 1 A. No, sir. Prozac is absolutely not a stimulant. 2 Stimulants are a special group of compounds that are in a 3 different class than antidepressants. If you take the very 4 large medical book used virtually in every medical school in 5 the United States by pharmacology written by Goodman and 6 Gilman, G-I-L-M-A-N, in Goodman and Gilman's Textbook of 7 Pharmacology, the stimulants will be listed in one chapter, 8 the antidepressant medications will be listed in a different 9 chapter. 10 Stimulants are related to something that you-all 11 know about, and that is adrenaline. Adrenaline is a 12 stimulant, and virtually any drug that works in the human body 13 as a stimulant has some properties that are somewhat like 14 adrenaline. Amphetamines are listed in the same category with 15 adrenaline. They are stimulant-like drugs. Antidepressants 16 are over here in a different category, things like tricyclics, 17 and serotonin reuptake inhibitors and propionic acid 18 derivatives and monoamine oxidase inhibitors, and they have no 19 relation to stimulants. 20 Q. Doctor Granacher, do you have an opinion as to 21 whether or not Prozac acted on Joseph Wesbecker like a 22 stimulant and caused him to commit these murders and these 23 assaults on September 14, 1989? 24 A. I do have an opinion, sir. That opinion is no, 25 it did not. I've already told you a little bit about the 42 1 basis for that. It's very simple. In 1972, Wesbecker took a 2 stimulant, Presate. He didn't do anything unusual. In the 3 1980s, he took drugs that can cause akathisia; he didn't get 4 akathisia. June of 1988, he took Prozac; it made him drowsy. 5 There's no evidence that Joseph Wesbecker has the tendency to 6 be stimulated by drugs in the first place, and Prozac did not 7 cause stimulation in Joseph Wesbecker, in my opinion. 8 Q. Doctor Granacher, let me change the topic with 9 you again. With regard to agitation, first of all, in 10 depressed patients, would you tell us what agitation is and 11 the cause or the etiology of agitation in depressed people? 12 A. Yes, sir. Agitation is being stirred up, being 13 jumpy, being -- pacing, hyperactive, move too much, irritable, 14 unable to deal with information, out of sorts. I mean, I 15 could give adjective after adjective for agitation. The cause 16 of agitation in depressed people -- and, by the way, not all 17 depressed people get agitated but many do. The cause of 18 agitation has to do with chemical changes in the brain and 19 alterations in the sleep system. The chemical alterations 20 cause the brain to not work well and the person can't process 21 information properly and they get a very uneasy feeling. 22 Different individuals display agitation in different ways. 23 Some pace; some rock; some say things they shouldn't say; some 24 get irritable. The sleep part is because persons who have 25 depression have chemical problems in their brain and your 43 1 sleep is chemically regulated, just like your mood is, and 2 they go hand in hand. In fact, if we can't regulate the sleep 3 cycle, we can't help someone with depression. So they get 4 sleep deprived, they have fragmented sleep, they don't sleep 5 well and they get agitated. 6 Q. Doctor Granacher, in Joseph Wesbecker's case, do 7 you have an opinion as to whether or not he was agitated on 8 September 14, 1989, and whether or not that agitation caused 9 him to commit these acts of murder and assault at Standard 10 Gravure? 11 A. I do have an opinion, and that opinion is, first 12 of all, he was not agitated, and since he wasn't agitated, it 13 didn't cause him to do what he did. My basis for saying he's 14 not agitated is reviewing the descriptions of people who 15 watched his behavior during those heinous intentful murders he 16 committed. He had a goal, was goal directed. He was on a 17 vision, a tunnel vision to do what he intended to do as he 18 weaved his way through that plant going from specific goal to 19 specific goal in an effort to find specific individuals that 20 he intended to kill. Most of them were not there, thank God, 21 but he intended to do that. He was not a deranged Rambo wild 22 man, screaming and yelling, running through the plant spraying 23 rounds everywhere. When I went through that plant, there were 24 very few rounds that missed a target. An agitated man has an 25 extremely difficult time being a marksman. Having been a 44 1 marksman myself in the army and having been a hunter, an 2 agitated man cannot line up a rifle on a target well and hit 3 that target. If you're agitated, highly agitated, the bullets 4 are going to spray everywhere and you're not going to hit what 5 you intend to shoot. Mr. Wesbecker was not agitated on 6 September 14th, 1989, when he killed those people in Standard 7 Gravure. 8 Q. Doctor Granacher, let me show you a document 9 that has been marked previously as Defendant's Exhibit 411. 10 A. Yes, sir. 11 Q. Would you just briefly tell us what that is so 12 we're all looking at the same thing, sir. 13 A. Defendant's Exhibit 411 is a photocopy of the 14 face sheet for the Physicians' Desk Reference, Edition 43, 15 published in 1989, and also contains product literature on 16 Prozac. 17 Q. Doctor, what -- what is this document and what 18 is its significance, if any, in the clinical practice of 19 psychiatrists such as yourself? 20 A. The document is best described as like your 21 Chevrolet manual for your car. This is the doctors' manual on 22 how to use drugs that are prescribed. It is not a textbook of 23 pharmacology. It's not used in any medical school in the 24 United States as an expert text or to teach medical students 25 pharmacology. It is the product information necessary to know 45 1 about a medicine, and it's compiled by a publishing company 2 that takes this information, this FDA-approved information, 3 Food and Drug Administration approved information and puts it 4 into this big manual to make it easy for medical practitioners 5 to look up various products that they use in the treatment of 6 their patients. And the purpose is to enlighten physicians 7 about various elements of the products, to give the 8 indications for using the drug; to give the contraindications 9 for using the drug, in other words, indications where you 10 wouldn't want to use it; to tell you the kinds of side effects 11 that you can expect; to discuss possible drug interactions if 12 you're using this product with another drug; how to dose it; 13 how many milligrams would be in the normal range; whether you 14 have to give it by injection; whether you have to give it by 15 tablet; whether it comes in a capsule or a tablet; whether you 16 can break the tablet; the various milligrams and pills, you 17 know; is it a 20-milligrams capsule; is it a 10-milligram 18 capsule; does it come in a liquid form; can you use it in 19 babies; can you use it in pregnant women, et cetera. So it's 20 product literature on all of the medications that are marketed 21 and are FDA approved in the United States. 22 Q. Now, sir, is this a document that you rely on in 23 your practice? 24 A. Yes, sir. 25 Q. Is it a document that you rely upon in 46 1 prescribing Prozac for your patients? 2 A. Yes. 3 Q. Would you take a look, sir, at Page 895 of this 4 document. It should be up in the top right-hand corner. 5 A. I found it; yes, sir. 6 Q. All right. And do you see in the center column, 7 the one in the middle, the caption Indications and Usage? 8 A. Yes, sir. 9 Q. Would you read that paragraph out loud to us, 10 please, sir? 11 A. Yes. "Prozac is indicated for the treatment of 12 depression. The efficacy of Prozac was established in five- 13 and six-week trials with depressed outpatients whose diagnoses 14 corresponded most closely to the DSM-III category of major 15 depressive disorder. A major depressive episode implies a 16 prominent and relatively persistent depressed or dysphoric 17 mood -- dysphoric means bad mood -- that usually interferes 18 with daily functioning, parentheses, nearly every day for at 19 least two weeks, close parentheses. It should include at 20 least four of the following eight symptoms: change in 21 appetite, change in sleep, psychomotor agitation or 22 retardation, loss of interest in usual activities or decrease 23 in sexual drive, increased fatigue, feelings of guilt or 24 worthlessness, slowed thinking or impaired concentration, and 25 a suicide attempt or suicidal ideation." Ideation means 47 1 having ideas about suicide. "The antidepressant action of 2 Prozac in hospitalized depressed patients has not been 3 adequately studied. The effectiveness of Prozac in long-term 4 use, that is, for more than five to six weeks, has not been 5 systematically evaluated in controlled trials; therefore, the 6 physician who elects to use Prozac for extended periods should 7 periodically reevaluate the long-term usefulness of the drug 8 for the individual patient." 9 Q. Doctor, having read that, what is the indication 10 and use of Prozac from your point of view as a clinical 11 psychiatrist, given that language, sir? 12 A. For depressive disorders, sir. 13 Q. And what about schizoaffective disorders? 14 A. Yes. Schizoaffective disorder would be included 15 in that; yes, sir. 16 Q. Doctor Granacher, take a look at the caption 17 Contraindications, and I'm not going to ask you to read all of 18 that. I see under that caption -- well, excuse me. I 19 misspoke. Contraindications, what is the wordage or the 20 language underneath that particular caption, sir? 21 A. It says, "None known." That means there's no 22 known reason you could not use Prozac. 23 Q. In what types of patients? 24 A. Well, that would be actually in anyone. 25 Q. Under the caption Warnings, I'm not going to ask 48 1 you to read all of that, sir, but under the caption I see two 2 headings; one is Monoamine Oxidase Inhibitors; correct? 3 A. Yes, sir. 4 Q. The other is Rash and Accompanying Events; 5 correct? 6 A. Yes, sir. 7 Q. What is meant by the caption Warnings, and in 8 particular with regard to the warnings here, to you as a 9 clinical psychiatrist prescribing Prozac for your patients, 10 sir? 11 A. Well, the warning is to give the physician or 12 the psychiatrist notice that there's two areas that you need 13 to be careful if you choose to use Prozac, and one area is if 14 that patient is on a type of antidepressant known as a 15 monoamine oxidase inhibitor. The second warning is, is that 16 some patients get a serious skin problem from Prozac, and the 17 physician should be aware of that. 18 Q. Doctor Granacher, based on what you are aware of 19 concerning the history of Joseph Wesbecker, was he on a 20 monoamine oxidase at the time that he was prescribed or using 21 Prozac? 22 A. He was not, sir, and in the medical records I 23 reviewed to the best of my knowledge Joseph Wesbecker was 24 never, ever given a monoamine oxidase inhibitor. 25 Q. Take a look, sir, at the final caption in that 49 1 middle column, that center column where it says Precautions. 2 Do you see that, sir? 3 A. Yes, sir. 4 Q. Would you read the next or the first paragraph 5 under that, which begins with the word General? 6 A. Yes, sir. Under General, it says -- there's a 7 dash and then anxiety and insomnia, both are -- all three 8 words are underlined, anxiety and insomnia, and then another 9 dash. "Anxiety, nervousness, and insomnia were reported by 10 10 to 15 percent of patients treated with Prozac. These symptoms 11 led to drug discontinuation in 5 percent of patients treated 12 with Prozac." 13 Q. Now, Doctor Granacher, let me ask you in 14 connection with that warning, are you familiar with Restoril? 15 A. Oh, yes. Remember, when I gave my 16 qualifications, I told the jury I was involved in sleep 17 medicine and Restoril is a sleeping medicine, it's a 18 benzodiazepine like Valium and we use that; yes, sir. 19 Q. And in connection with this particular 20 precaution, it mentions anxiety, nervousness and insomnia; 21 correct? 22 A. Yes, it does. 23 Q. In your patients, sir, if the patient develops 24 anxiety, nervousness or insomnia while taking Prozac, from 25 your clinical experience, what do you do, sir? 50 1 A. Usually one of three things, sir. You could 2 prescribe a medicine called trazodone, which is another kind 3 of antidepressant, at bedtime for the insomnia. If the person 4 is nervous, medical doctors and psychiatrists tend to use 5 benzodiazepines, that's that class of drugs like Xanax and 6 Ativan and Valium, or benzodiazepine sleeping medicines, like 7 Dalmane, Halcion or Restoril. The way you make the decision 8 is as follows: If your patient has insomnia but also seems 9 highly anxious in the daytime, it's best to use a 10 benzodiazepine at night that has some carryover effect the 11 next day, so that not only will you help with the insomnia but 12 the next day that benzodiazepine will also help the person 13 with their nervousness. The two most likely drugs used for 14 that would be Restoril or Dalmane. If insomnia is not much of 15 a problem but it's just daytime anxiety, then you would use 16 something like at Ativan, Valium, or Xanax during the day only 17 and not use anything at night. 18 Q. In this case, sir, based upon your review of the 19 records of Joseph Wesbecker, which course of treatment was 20 given by Doctor Coleman? 21 A. Doctor Coleman first chose a medication called 22 Halcion, and Mr. Wesbecker asked that that be discontinued. 23 He had heard some unpleasant things about Halcion and didn't 24 want to take it, but he did take it for a significant period 25 of time. After Halcion was stopped, Doctor Coleman prescribed 51 1 another sleeping medicine called Restoril that, in fact, was 2 found in the blood products of Mr. Wesbecker at autopsy. 3 Q. And with regard to that particular medication, 4 what is it again designed to do, and particularly with regard 5 to Joseph Wesbecker in this case? 6 A. Well, it's designed to help you go to sleep, but 7 a secondary use of it is for anxiety. 8 Q. Let me show you, sir, a copy of a document -- 9 let me see if I can get it right here. 10 MR. SMITH: May we approach, Your Honor? 11 (BENCH DISCUSSION) 12 MR. SMITH: Are we getting anywhere close to 13 break time? 14 MR. STOPHER: Oh, sure. We can take a break 15 here. 16 JUDGE POTTER: How much more have you got, Mr. 17 Stopher? 18 MR. STOPHER: About 30 minutes. 19 MR. SMITH: I can wait. 20 (BENCH DISCUSSION CONCLUDED) 21 JUDGE POTTER: Ladies and gentlemen, we're going 22 to take a brief recess. As I've mentioned to you-all before, 23 do not permit anybody to talk to you about this case; don't 24 discuss it among yourselves. We'll take a 10-minute recess. 25 (RECESS; BENCH DISCUSSION) 52 1 MR. STOPHER: Judge, it was reported to me by 2 somebody who's in the courtroom that Mr. Scherer was overheard 3 saying to Mr. Pointer that he wanted to borrow his cane so 4 that he could use it on somebody in the courtroom. I'd assume 5 that that was a joke, but I would like to request one more 6 time that people be warned not to say those kinds of things in 7 the courtroom, even in the audience out of the presence of, 8 obviously, the jury. But those kinds of things in this case 9 can be taken the wrong way. 10 JUDGE POTTER: Mr. Smith, without getting into 11 whether it happened or didn't happen or who said it, could you 12 at the next break have your paralegals chat with your people? 13 MR. SMITH: Okay. 14 (BENCH DISCUSSION CONCLUDED) 15 SHERIFF CECIL: The jury is now entering. All 16 jurors are present. Court is back in session. 17 JUDGE POTTER: Please be seated. 18 Doctor, I'll remind you you're still under oath. 19 Mr. Stopher. 20 Q. Doctor Granacher, let me show you a document 21 that's been previously marked and filed as Plaintiffs' Exhibit 22 103. Would you hang onto that PDR, the Defendant's Exhibit 23 411, for just a moment, sir? With regard, sir, to what's been 24 marked and filed as Plaintiffs' Exhibit 103, let me refer you, 25 sir, to the page that is numbered 2 up in the top right-hand 53 1 corner. And at the top of that page, it says Pregnancy. Do 2 you see that page, sir? 3 A. Yes, sir. 4 Q. And about halfway down the page, it says Risk 5 Patients. Do you see that, sir? 6 A. Yes, sir. 7 Q. And about halfway down below that caption under 8 Risk Patients, do you see the caption that says Risk of 9 Suicide? 10 A. Yes, sir. 11 Q. It then goes on to read "Fluctin," which I will 12 represent to you is Prozac or fluoxetine, "does not have a 13 general sedative effect on the central nervous system; 14 therefore, for his/her own safety, the patient must be 15 sufficiently observed until the antidepressive effect of 16 Fluctin sets in. Taking an additional sedative may be 17 necessary. This also applies in cases of extreme sleep 18 disturbances or excitability." Do you see that phrase, sir? 19 A. Yes, sir. 20 Q. Doctor Granacher, based on your experience in 21 use or prescribing Prozac for your patients, should this 22 language be contained in the PDR? 23 A. Not necessarily, no. 24 Q. Would you explain why not, sir? 25 A. Well, it's information that's already known by 54 1 physicians. It's common information that family doctors and 2 psychiatrists and internal medicine doctors are aware of. 3 Q. In cases of extreme disturbances or 4 excitability, what are doctors in the United States aware of, 5 sir? 6 MR. SMITH: Your Honor, we'd object to that. 7 There's no testimony that he's taken a poll to determine the 8 knowledge of doctors throughout the United States. 9 Q. What is your basis for that opinion, if you 10 would, please, sir, and tell us what it is? 11 A. Well, agitation, nervousness, anxiety is the 12 commonest symptom -- psychiatric symptom treated by family 13 doctors, not by psychiatrists, by family doctors. Family 14 doctors prescribe most of the anxiety agents in the United 15 States, not psychiatrists. 16 MR. SMITH: Again, Your Honor, there's no 17 predicate for this opinion. 18 JUDGE POTTER: Objection is overruled. I think 19 he can talk on this general topic. 20 Q. Have you finished your answer, sir? 21 A. Yes, sir. 22 Q. In the case of Joseph Wesbecker, if this 23 language had been included in the PDR, should anything else 24 have been done for him in the treatment of his depression in 25 August or September of 1989? 55 1 A. No, sir. Doctor Coleman was already doing what 2 was necessary. He was meeting with Mr. Wesbecker on a regular 3 basis. He had first prescribed Halcion and then Restoril and 4 based on the signs and symptoms as Mr. Wesbecker presented 5 them to Doctor Coleman, Doctor Coleman was doing what was 6 necessary. 7 Q. Doctor Granacher, let me show you another 8 document that has been marked as Plaintiffs' Exhibit -- I 9 think it's 161. 161, sir. The first page of this document is 10 captioned Cabinet for Human Resources Toxicology Laboratory, 11 275 East Main Street, Frankfort, Kentucky, Request for 12 Toxicology Analysis; correct, sir? 13 A. Yes, sir. 14 Q. And in connection with this document, sir, can 15 you tell us what medications were found in Joseph Wesbecker at 16 the time of autopsy at a therapeutic level, sir? 17 A. Yes, sir. My reading of this is four 18 medications were searched for. They are listed on the bottom 19 of the first page: temazepam, T-E-M-A-Z-E-P-A-M, that is 20 Restoril; salicylates, which would be substances like ordinary 21 aspirin that you would buy at the drugstore; lithium, which is 22 a commonly used psychiatric medication; and then the last line 23 says, "Test not available for Prozac from this lab." That 24 test was sent out to what's called a reference laboratory. 25 But they did find in Frankfort three drugs in Joseph 56 1 Wesbecker. They found a trace level of Restoril; 1.4 2 milligrams percent of the aspirin-like compound; and 1.0 3 milliequivalents per liter of lithium. That's a normal level 4 of lithium and the salicylates are not at toxic levels. 5 Q. Now, look, if you would, sir, at actually the 6 third page of that document, which is captioned SmithKline 7 Bioscience Laboratories. Do you see that, sir? 8 A. Yes, sir. 9 Q. Would you tell us based upon this -- and my copy 10 is poor, I hope yours is legible -- with regard to this 11 document, what prescription medications were found in Joseph 12 Wesbecker from this laboratory in his blood taken at the time 13 of autopsy? 14 A. Well, from this laboratory, sir, none were 15 found. The Prozac test had to be referred out to another 16 laboratory in New Brighton, Minnesota, called MedTox 17 Laboratories. They did the Prozac test. 18 Q. All right. And what does it show about Prozac? 19 A. It shows that there were 1,092 nanograms per 20 milliliter of Prozac, which is in the normal range. Now, let 21 me explain what all that jargon means. Nanograms are 22 billionths of a gram. You see why they had to send it out. 23 It's like measuring something so small that we can't even -- 24 we can hardly talk about it. So they sent it to this 25 laboratory that specializes in that. They measured the Prozac 57 1 level. They reported it back as within normal limits. The 2 therapeutic range is on the right side of that document, 300 3 to 1150, so 1,092 is in the therapeutic range. They did test 4 in Atlanta at SmithKline, which is where this was sent, for 5 four drugs. My understanding of why they did that is because 6 drug bottles were found in his home of these substances. They 7 measured trazodone, imipramine, desipramine and nortriptyline; 8 all four of those compounds are antidepressants. The results, 9 as I interpret them, are basically they didn't find any of the 10 four. And the reason I say that, if you look in the Results 11 column, it says, "Less than 25 micrograms per liter." That is 12 the threshold of the test. In other words, the test is -- the 13 lowest the test can go down and find something is 25. So if 14 there's anything in his bloodstream, it's below 25 or it's not 15 there at all. It's undetectable. They did find one drug in 16 Atlanta, though, Restoril. And you will see Restoril was 17 reported at 240 nanograms per milliliter. That's billionths 18 of a gram per milliliter, and the therapeutic range is 50 to 19 1,000, so we know he's taking the medicine, he's not on a 20 toxic amount. So, in summary, of all the drugs measured, not 21 a single one was at toxic levels or above the therapeutic 22 range. 23 Q. And based on this composite of information here, 24 which drugs were in his blood at a therapeutic level, sir? 25 A. Well, there were four drugs detected at 58 1 therapeutic levels: Restoril, aspirin, lithium and Prozac. 2 Q. Doctor Granacher, in connection with the level 3 of Restoril in his blood, 240 nanograms per milliliter, was 4 that in the therapeutic range, according to this document? 5 A. Yes, sir. Fifty to a thousand is the range and 6 clearly two-forty lies between fifty and a thousand. 7 Q. At that level, sir, what would be the effect on 8 a patient at that level of Restoril? 9 A. It would have a calming effect. Restoril is a 10 benzodiazepine like Valium or like Ativan or like Xanax. It 11 has essentially the same half-life as Ativan. The reported 12 half-life of Restoril -- and I'll explain these complicated 13 terms -- is 10 to 17 hours. That means that if I give you a 14 dose of Restoril, one-half of the dose will be out of your 15 body somewhere between 10 and 17 hours. Now, there's a rule 16 in pharmacology. It takes five half-lives to get a drug out 17 of your body. So if you have this level of Restoril in your 18 bloodstream, it would take between 50 and 85 hours to get that 19 out of your body, 10 times 5 is 50; 17 times 5 is 85. So if 20 you take Restoril, have 240 nanograms per ML in your body, it 21 will take somewhere between 50 and 85 hours for that to clear 22 your body. 23 Q. Doctor Granacher, if a patient like Joseph 24 Wesbecker took Restoril for several months, does the effect of 25 it wear off or go away? 59 1 A. The calming effect does not wear off, sir, the 2 side effects tend to wear off. 3 Q. Doctor Granacher, going back, sir, again, to the 4 PDR, which is Defendant's Exhibit 411, would you take a look 5 at the page that is numbered 896, and it's up in the top 6 left-hand corner, but it's basically just the next page, sir. 7 A. Yes, sir. 8 Q. Do you have it? 9 A. I do. 10 Q. And let me again direct your attention to the 11 middle column on that page, sir. Do you see the caption 12 Adverse Reactions? 13 A. I do. 14 Q. Do you see the caption under that, Commonly 15 Observed? 16 A. Yes, sir. 17 Q. Would you read that paragraph out loud, sir? 18 A. "The most commonly observed adverse events 19 associated with the use of Prozac and not seen at an 20 equivalent incidence among placebo-treated patients were: 21 nervous system complaints, including anxiety, nervousness, and 22 insomnia, drowsiness and fatigue or asthenia..." -- asthenia 23 is a reduction of motor movement activity -- "...tremor, 24 sweating, gastrointestinal complaints, including anorexia..." 25 -- which means loss of appetite -- "...nausea and diarrhea and 60 1 dizziness or lightheadedness." 2 Q. Doctor Granacher, in connection with your 3 practice, sir, over the years since 19 -- late 1987, early 4 1988, have you had occasion to prescribe Prozac for patients 5 under your care? 6 A. Yes, I have. I prescribe almost all of the 7 available antidepressants, but Prozac is one of the 8 antidepressants I use; yes, sir. 9 Q. In connection with your experience, sir, could 10 you give us some idea of the number of patients or the number 11 of prescriptions that you have written for Prozac over the 12 past approximately six years, sir? 13 MR. SMITH: Object to that as immaterial, Your 14 Honor. 15 JUDGE POTTER: Let me see you-all up here. 16 (BENCH DISCUSSION) 17 JUDGE POTTER: What are we doing, Mr. Stopher? 18 MR. STOPHER: Your Honor, his clinical 19 experience with the drug with regard to the warning and the 20 safety and the efficacy of the drug is the basis for parts of 21 his opinions, and I would like for the jury to understand why 22 and how extensive that basis is. 23 MR. SMITH: Again, I think the motion is in 24 limine and that there wasn't going to be any numbers on how 25 many people were being officially treated. 61 1 MR. STOPHER: This is not going to the global 2 issue. It is the basis of his opinions that the patients that 3 he's had. Doctor Coleman was permitted to testify about that, 4 Doctor Greist was permitted to testify about that, and even 5 Doctor Breggin was asked about that and whether or not he'd 6 continue patients on -- 7 JUDGE POTTER: What is this guy doing? He's 8 just going to say he's treated a lot of people and that's it 9 or he's going to go into all the -- 10 MR. STOPHER: No. No. No. He's not going into 11 case histories and that sort of thing, but I think it is a 12 basis for his opinions about the basis for a warning and about 13 the safety and the efficacy of the drug. He can't give those 14 opinions if he doesn't have some basis for -- 15 MR. SMITH: How many patients he's treated with 16 Prozac is immaterial. 17 MR. STOPHER: Clearly it's material to the 18 issue. 19 JUDGE POTTER: If he just wants to name the 20 number of patients he's treated, I'm going to overrule the 21 objection. 22 (BENCH DISCUSSION CONCLUDED) 23 Q. Doctor Granacher, again, would you tell us 24 approximately how many patients you've treated with Prozac or 25 prescribed Prozac for over the past six years or so, sir? 62 1 A. I can't give you the exact figure, Mr. Stopher, 2 but it would be in the hundreds. 3 Q. Doctor Granacher, in connection with that 4 experience, do you have an opinion as to whether or not the 5 language contained in the Physicians' Desk Reference, and the 6 1989 edition in particular, is adequate to give the treating 7 physicians information about Prozac? 8 MR. SMITH: May we approach, Your Honor? 9 (BENCH DISCUSSION) 10 MR. SMITH: I'm sorry, but he's not been 11 designated as an expert. 12 MR. STOPHER: Your Honor, he has. 13 JUDGE POTTER: He's already answered that 14 question, hasn't he? 15 MR. STOPHER: Right. 16 JUDGE POTTER: I think he's already answered 17 that question. 18 MR. STOPHER: This is a follow-up now that I've 19 had him read the language that he's referring to. That's all 20 it does. 21 JUDGE POTTER: Okay. Objection is overruled. 22 (BENCH DISCUSSION CONCLUDED) 23 Q. Would you answer the question, please, sir? 24 A. Yes, sir. It's adequate. There's sufficient 25 information in the Physicians' Desk Reference, information to 63 1 help me understand what I need to know about using Prozac. 2 Q. Doctor Granacher, in connection with your 3 prescribing Prozac for patients, do you have an opinion as to 4 whether or not it is safe in the treatment of depression? 5 A. I do have an opinion, and it's very safe in the 6 treatment of depression. The reasons it's safe is it has 7 almost no toxic effects with other medications that might be 8 used in patients who are depressed, like heart medicines and 9 the kinds of medicines where you could get into real trouble 10 with; that is a difficulty for us with using the older 11 antidepressants. It's essentially overdose proof. One of the 12 great risks of treating a depressed patient is risk of taking 13 the medicine in an effort to kill themselves, and the older 14 antidepressants are very lethal, even in relatively small 15 amounts. That's not to say that you possibly couldn't kill 16 someone with Prozac, but you'd have to take it by the handfuls 17 to do so. So its safety with other medications, safety with 18 suicidal patients makes it an excellent drug. It doesn't work 19 for everybody, though. It works for 70 or 80 percent of 20 patients you give it to, and 20 or 30 percent of the patients 21 you prescribe it to won't respond to it and you'll have to use 22 something else. 23 Q. Doctor Granacher, based again on your clinical 24 experience in treating patients with depression with Prozac, 25 is it effective or efficacious? 64 1 A. Yes, sir. It's as good as any other 2 antidepressant. There is not a single antidepressant on the 3 market in the United States that we can say is the best 4 antidepressant of all. All antidepressants that are used in 5 the United States have basically the same response rates, in 6 other words, the same number of people will respond. There's 7 no one product that's superior to another in the treatment of 8 depression. 9 Q. May we approach the bench for just a moment, 10 Your Honor? 11 JUDGE POTTER: Uh-huh. 12 (BENCH DISCUSSION) 13 MR. STOPHER: I appreciate your coughing in 14 another direction. Judge, those are all the questions I have 15 of Doctor Granacher, but before we get into the 16 cross-examination, I do want to make a motion in limine. I've 17 heard that Mr. Smith wants to ask Doctor Granacher about some 18 perceived Medicare or Social Security problem. If that's not 19 true then it's not necessary, but if he is going to attempt to 20 do that, we object to it and move that the question itself be 21 excluded on the grounds that no such item has ever occurred. 22 JUDGE POTTER: Do you know what he's talking 23 about, Mr. Smith? 24 MR. SMITH: Yes. He's been charged with 25 Medicare and Social Security fraud. 65 1 MR. STOPHER: That is absolutely false, and I 2 don't know where that information came from. 3 MR. SMITH: We can go ahead and I'll just defer 4 asking him that until after lunch. 5 (BENCH DISCUSSION CONCLUDED) 6 MR. STOPHER: Those are all the questions I have 7 of Doctor Granacher, Your Honor. 8 JUDGE POTTER: Mr. Smith. 9 MR. SMITH: Leave that there, please, Ed. 10 JUDGE POTTER: Mr. Smith, you know, if your 11 voice or something begins to give out and you want to go to 12 lunch early, just let us know. 13 14 EXAMINATION ___________ 15 16 BY_MR._SMITH:. __ ___ ______ 17 Q. Doctor Granacher, I'm sure you and the jury 18 probably also will be pleased that I'm going to lose my voice, 19 and I don't know how long I'll be able to question you. I'll 20 try to make my questions as understandable as possible, in 21 light of my duty to represent my clients, sir. 22 A. Yes, sir. 23 Q. As I understand it, you have charged Eli Lilly 24 and Company forty to fifty thousand dollars for your time in 25 this case; is that right? 66 1 A. Yes. That's about right. 2 Q. Which is it, sir? 3 A. The exact amount, it was forty or fifty thousand 4 dollars. 5 Q. Is it 40 or 50? That's a 20-percent difference. 6 A. I don't know. It could be 50. Assume it's 50 7 for the sake of the question. I'll assume that. 8 Q. Well, have you received $50,000? 9 A. I don't know how much I've received exactly. 10 Q. Have you billed them 50,000? 11 A. I think so, yes. 12 Q. It's your practice, is it not, Doctor, to get 13 your money up front for your testimony in these cases? 14 A. It depends on the person who hires me and it 15 depends on the case. In this case, I didn't get it up front. 16 It was billed as I went along. 17 Q. Well, what makes the distinction as to whether 18 or not you get your money up front? 19 A. Part of it has to do with the reputation of the 20 person who hires me and whether I've worked with them before. 21 Q. Do you recall speaking -- actually, I guess it 22 was shortly after Mr. Stopher contacted you in connection with 23 this case, down in Texas in San Antonio in October of 1993, 24 giving a workshop for other psychiatrists that were going to 25 testify in litigation? 67 1 A. I do. And I told them to get the retainer up 2 front. I didn't have a retainer in this case, sir. 3 Q. You said, "To stabilize your cash flow, do not 4 take cases for which you do not have a retainer. If you can't 5 get a retainer, don't take the case. Now, this is my rule, as 6 I told you before we started. This isn't necessarily the way 7 you have to practice. This is one man's way of doing it. 8 Prepayment for all discovery or cross-examination 9 depositions." 10 A. That's true. I agree with that. 11 Q. "If someone who did not hire you wants to take 12 your deposition, you have to have them send you your fee or 13 bring it with them. Many of you probably do this. Prepayment 14 for all court appearances"? 15 A. Yes. 16 Q. Have you been prepaid for your appearance here, 17 sir? 18 A. I don't know. We have prebilled. You'd have to 19 ask my billing person if I've been prepaid. I don't handle 20 that. 21 Q. "Prepayment for all court appearances. Things 22 may not go well in the courtroom and you may never see your 23 money." Correct, sir? 24 A. That's correct. That happens, unfortunately. 25 Q. Did you charge Lilly based on the time that you 68 1 were spending in this case? 2 A. I did. 3 Q. And did you charge that on an hourly basis, sir? 4 A. I did. 5 Q. And what did you charge Lilly per hour for your 6 time? 7 A. Same amount I would charge you, $350 an hour. 8 Q. $350 an hour? 9 A. That goes to the corporation, it doesn't go to 10 me. 11 Q. The bill goes to Lilly as a corporation? 12 A. Sir, 350. I'm sorry. No. The bill didn't go 13 to Lilly, the bill went to Boehl, Stopher. 14 Q. All right. You said something about a 15 corporation? 16 A. The money doesn't go to me; it goes to my 17 corporation. It pays 16 people. 18 Q. You own your corporation, though, don't you? 19 A. I and 15 others are paid out of that. 20 Q. $350. What is the name of your corporation? 21 A. Robert P. Granacher, Jr., M.D., P.S.C. 22 Q. That's what I thought. And you're charging 350 23 per hour for your testimony and you've charged them 50 -- 24 A. No, sir, I didn't charge that for my testimony; 25 I charged that -- you asked me about reviewing records. 69 1 Q. Your time? 2 A. That's correct. 3 Q. When I say testimony, I'm talking about your 4 testimony, your time, but basically the time you've spent. 5 A. Well, I understand that, sir, but I distinguish 6 them. Reviewing records I don't consider to be testimony. 7 Q. All right. How much do you charge for reviewing 8 records? 9 A. $350 per hour. 10 Q. What do you charge for testimony? 11 A. Depends on the time. The base rate is $4200 per 12 day, which would be prorated. That would go to the 13 corporation. 14 Q. You charge $4,200 per day? 15 A. Yes, sir. I have to shut down my practice. I 16 have 15 people to pay. That's in line with other forensic 17 psychiatrists across the country. 18 Q. The 268 of you in North America? 19 A. 263. 20 Q. I'm sorry. You say you've given a deposition in 21 this case? 22 A. Yes, sir. As you know, you sent someone to take 23 my discovery deposition. 24 Q. Mr. Dobiesz from here in Louisville came over. 25 Mark Dobiesz? 70 1 A. I forgot his name. Yes, sir. That's correct. 2 Q. And how much did you charge for that time, sir? 3 A. The base rate for oral depositions is -- to the 4 corporation is $475 per hour. 5 Q. $475 per hour for deposition? 6 A. Yes, sir. 7 Q. That deposition, what, that took a day, five 8 hours? 9 A. Didn't take a day. I don't remember exactly, 10 but five or six hours sounds about right. It did not take all 11 day. He had a 4:00 appointment or something, if I recall, a 12 5:00 appointment. 13 Q. What do you -- have you ever figured up how 14 many -- of course, to give a deposition you've got to review 15 records and you've got to meet with the attorneys beforehand 16 for whoever you're giving your opinion and then you -- 17 A. Not in discovery, sir. As you know, I did not 18 meet with Mr. Dobiesz. 19 Q. I'm talking about Mr. Stopher. I'm sure you met 20 with Mr. Stopher before you gave your deposition briefly. 21 A. Not that day; no, sir. 22 Q. In preparation for your deposition, didn't you 23 talk to Mr. Stopher about what you were going to say? 24 A. No, sir. 25 Q. Didn't need to do that? 71 1 A. I talked to Mr. Stopher but not about that 2 deposition. 3 Q. How many hours on an average do you spend in 4 giving deposition testimony, per deposition? 5 A. Most of them are very quick because they're 6 workers' compensation depositions and they take about a half 7 an hour. These kinds of depositions are very uncommon. I 8 don't do many of these. This is an uncommon case. This isn't 9 the ordinary case. 10 Q. You've got to review records? 11 A. Yes. 12 Q. And you've got to consult with an attorney? 13 A. Well, I would have done -- 14 Q. Let me finish my question, okay? 15 A. I'm sorry. Yes, sir. 16 Q. You've got to consult with an attorney to some 17 extent about a case, don't you? 18 A. Yes. But, you see, that's already been done. 19 Because if I examined someone I have written a report, I have 20 reviewed the records and I did all that in the examination, so 21 there's no point in doing that again. 22 Q. How many forensic autopsy cases have you given 23 testimony in? 24 A. In my career, it's not a very common occurrence, 25 probably 25 to 50. 72 1 Q. Okay. 2 A. Never one as extensive as this. 3 Q. You do brain injury cases, you do workers' 4 compensation cases, you do maybe sleep disorder cases; is that 5 right? 6 A. Well, I do sleep disorder cases as a treating 7 doctor, but occasionally I do a sleep disorder forensic case, 8 yes. 9 Q. So I'm just trying to get an average of how much 10 time you spend per deposition, per case. 11 A. If you'll ask me specifically the type of 12 deposition, I'll be glad to answer. It depends on the type. 13 Q. All right. Brain injury case. 14 A. How much time for a deposition? 15 Q. And for preparation. 16 A. Preparation can be done during the examination, 17 sir. The time for the deposition, most brain injuries are 18 done by video, and they'll take an hour and a half. 19 Q. Okay. How about workers' comp? 20 A. The average Kentucky workers' compensation case 21 takes about a half an hour. 22 Q. All right. How about -- what other types of 23 cases do you testify in? 24 A. Product liability, personal injury. 25 A. Okay. What's the average product liability 73 1 deposition? How long does it take? 2 A. Well, it could be like this, it could take two, 3 three, four, five hours, depending on the complexity of the 4 case. 5 Q. Okay. Believe me, if I had come over to talk to 6 you and take your deposition, you wouldn't have gotten by with 7 five hours; I would have taken two or three days. But you say 8 five hours is about the time that you average spending on a 9 products liability depo. 10 A. Yes. Because most product liability cases are 11 not this complex, sir. This would be at the upper echelon of 12 complexity. 13 Q. You've probably testified in medical malpractice 14 cases? 15 A. Yes, I have. 16 Q. What is the average time you spend on that? 17 A. That depends on the nature of the case. It 18 could be anywhere from an hour to three or four hours. 19 Q. Can we say -- 20 A. Most probably average -- are you talking about 21 the discovery or evidentiary party? 22 Q. Either one. Total, discovery and evidentiary. 23 A. Depends on the complexity of the case. There 24 might not be much to discover or it could take all day. 25 That's a rare occurrence. Very rare occurrence it would take 74 1 that long. 2 Q. Would you say four hours? 3 A. No. Average on medical negligence discovery is 4 two hours. 5 Q. Two hours. All right. What other kind of cases 6 do you testify in? 7 A. Let's see. We've got product liability, brain 8 injury, workers' comp, medical negligence. 9 Q. Automobile accident? 10 A. Well, any kind of tort where a person's mental 11 state would be in issue. 12 Q. General tort cases? 13 A. Yes, sir. If it's not a brain injury, it 14 doesn't take very long, probably an hour; if it's a brain 15 injury, one and a half hours, two hours. 16 Q. Any other type of cases? 17 A. Yeah. There's all kinds of different cases. 18 There are very few things you can mention in forensic 19 psychiatry that I wouldn't be involved in. 20 Q. Criminal cases. Do you give depositions in 21 criminal cases? 22 A. I can't recall ever doing that in a criminal 23 case; no, sir. 24 Q. All right. What are some other types of cases 25 you have given depositions in? 75 1 A. Civil rights. 2 Q. All right. How long does it take to give a 3 civil rights deposition? 4 A. In complex litigation it might take two or three 5 days, but I've only done maybe seven or eight of those in my 6 life so... But those did take a day or more in many cases. 7 Q. Okay. So we say eight hours there. Okay. What 8 other types of cases have you given your deposition in? 9 A. I'm sure I'm leaving some out. 10 Q. Aviation cases? 11 A. I did one case for the army on a helicopter 12 crash at Fort Campbell. That would be an aviation case. 13 Q. Was that a lengthy deposition? 14 A. I don't think it was. Hour and a half, hour. 15 Issues were fairly straightforward. 16 Q. I can't think of anything else, can you? 17 A. In the back of my mind, I feel like I'm leaving 18 some things out, but in 20-some years I'm sure I'll leave 19 something out. 20 Q. All right. So, would it be reasonable to say 21 that you spend maybe three hours per deposition on an average? 22 A. Oh, no. Gosh, no. Average we schedule 23 depositions at my office would be one to one and a half hours. 24 It would be extraordinary that we would have a three-hour 25 deposition. I mean, those do come up in the course of a year, 76 1 of course, but they're rare. 2 Q. So will you give me two? 3 A. Two for what? 4 Q. Two hours as an average. I'm trying to take 5 into consideration -- 6 A. The average deposition in my office would be 7 about an hour and 15 minutes. It would be somewhere between 8 one to one and a half hours, if you want the average. 9 Q. You've given 4,000 depositions; is that what you 10 said? 11 A. In 22 years roughly, yes. 12 Q. Okay. If you multiply that times -- if it's 13 just an hour, $350 an hour, I think is what you charge for 14 giving a deposition, how much is that? 15 A. Oh, Mr. Smith, I didn't make that kind of money 16 when I started out. Nobody knew who I was. You'll have to 17 average it down for -- no, that's an incorrect figure. 18 Q. That's 1.4 million. 19 A. I didn't make 1.4 million. When I started out 20 as a young, poor doctor with bills to pay, I got maybe $100, 21 $80. Your 350 is misleading; that's not accurate. That's 22 what I charge now. 23 Q. How long have you been charging $350 an hour? 24 A. About three years. 25 Q. Three years? Okay. And what was your charge 77 1 before you jacked it up to $350 an hour? 2 A. Two hundred and something. I don't remember 3 exactly what. Before that it would be in the hundreds, and 4 when I started out it was probably about seventy-five dollars. 5 Q. Let's work back. Okay? 6 A. All right. However you want to do it. 7 Q. You said you've had three years at 350. And 8 you've had how many years at -- what was your last charge 9 before you jacked it up to $350 an hour? 10 A. I think it was about $275. 11 Q. Two seventy-five. How long was it at that 12 level? 13 A. Well, I'll try to answer your question, but 14 these are going to be guesses. 15 Q. I understand. 16 A. Let's see. Probably three or four years. 17 Q. Okay. All right. Before you jacked it up to 18 275, what was it? 19 A. About 200. 20 Q. How long was it at 200? 21 A. Probably about three years. 22 Q. And before it was $200 an hour, what was it? 23 A. About 150, for about 3 years. 24 Q. How many? 25 A. About 3 years. 78 1 Q. Okay. Well, let's see, we've got seven -- 2 A. I think we've got about 12 years. 3 A. I think we've got about 12 years there. 4 Q. We've got 18 years. 5 A. No, sir. About 12 years. 6 Q. Three and four are seven and three are ten. 7 A. No, sir. Three to four. Three, hyphen, four. 8 You can't add the three and the four. Pick one of them, 9 either three or four. 10 Q. We've got three at 150, three at 200. That's 11 six. 12 A. Six. Uh-huh. 13 Q. Four at two seventy-five; that's ten. Three at 14 three-fifty. That's 12, or 13. 15 A. Yeah. Thirteen, not twelve. 16 Q. If I could add and subtract, I'd be a doctor. 17 You've been giving depositions since you've been in private 18 practice? 19 A. Oh, even before that when I was an institutional 20 psychiatrist. 21 Q. Okay. But 99.9 percent of the depositions 22 you've given have been since you've been in private practice? 23 A. Oh, I don't know that it's 99.9 percent. I 24 mean, how would you determine that? 25 Q. By looking back, photogenic memory, and telling 79 1 me. 2 A. My answer is no, then. 3 Q. How many depositions did you give before you 4 started your private practice in 1978, Doctor? 5 A. Quite a few. At that time, if you'll notice 6 from my CV, I was working a lot with the federal government 7 with the Department of Justice. 8 Q. The question is how many, sir. 9 A. Probably one or two a month, maybe more. 10 Q. All right. So that would be 12 a year? 11 A. Well, 1 or 2 I think would be 12 to 24 a year. 12 Q. Okay. Give me an average then. 13 A. Let's take 18. How's that? 14 Q. All right. And you got out of medical school in 15 '72? 16 A. Yes, sir. 17 Q. And you got out of residency when? 18 A. '75. 19 Q. All right. Did you give any depositions before 20 you got out of residency? 21 A. I gave testimony. I don't consider it 22 depositions. It would have been testimony for civil 23 commitment. 24 Q. I'm talking about depositions where you charged 25 money for your time. 80 1 A. I don't recall. It's possible, but I don't 2 think I gave depositions before I was -- finished my 3 residency. 4 Q. Okay. So you say you've been giving depositions 5 in the last 20 years? 6 A. Since '75, yeah. It will be 20 years next year. 7 Q. Almost '95. Give you the benefit of the doubt. 8 A. Yeah. That's true. 9 Q. So you divide 20 into $4,000, what would that 10 be, 200 depositions a year? 11 A. That would be an average; yes, sir. 12 Q. Of course, there's been more in the last few 13 years, less earlier, I guess; right? 14 A. I didn't understand that, sir. 15 Q. Probably gave less earlier in your career? 16 A. Oh, yeah. 17 Q. And more recently? 18 A. That's true. Yeah. Sure. 19 Q. But on an average if you just added it out 20 straight, it looks like you'd be giving 200 depositions a 21 year? 22 A. Yeah. That's true. About 70 percent of those 23 would be workers' compensation and the remainder would be the 24 other things we talked about. That's true. 25 Q. What is there, 250 working days in a year, 5 81 1 times 52? Five times fifty if you take vacations, don't you? 2 A. Yeah. Sure. 3 Q. So -- 4 A. I'll agree to it. That's fine. As a forensic 5 psychiatrist, that's not unusual. 6 Q. You've got 15 people working for you? 7 A. Yes. Nurses -- 8 Q. You've even got paralegals, don't you? 9 A. Yes. Psychiatrists. 10 Q. Do you know that's illegal in some states for a 11 doctor to have a paralegal in their office? 12 A. I think it is in Illinois. 13 Q. Huh? 14 A. I think it is in Illinois. 15 Q. It's illegal in some other states, too, sir. 16 A. It's not in Kentucky. 17 Q. Your wife work for you? 18 A. Yes, she does. 19 Q. Tell the jury what she does. 20 A. She's a therapist. She helps treat patients. 21 Q. Is she a psychiatrist? 22 A. No. She's a licensed clinical social worker. 23 Q. Have you ever charged her time as a 24 psychiatrist? 25 A. No. 82 1 Q. Are you sure about that? 2 A. Sure. Her fees are very different than mine. 3 MR. STOPHER: May we approach the bench, Your 4 Honor? 5 (BENCH DISCUSSION) 6 MR. STOPHER: Number One, his wife is not 7 testifying here and what she does or doesn't do is immaterial 8 and irrelevant. Number Two, this is the issue or relates to 9 the issue that he says he was not going to ask about until we 10 dealt with it at lunch hour. Any alleged impropriety on his 11 or his wife's part is total... 12 JUDGE POTTER: Mr. Smith, weren't we going to 13 wait till lunchtime? 14 MR. SMITH: This was all I was going to ask him. 15 JUDGE POTTER: Okay. 16 (BENCH DISCUSSION CONCLUDED) 17 Q. In the speech that you gave, you had a handout, 18 did you not? 19 A. I usually -- I'm sure I did. I usually do have 20 handouts; yes, sir. 21 Q. Does that look like the handout you gave at the 22 October meeting? 23 A. Now, where was this given, sir? 24 Q. San Antonio, Texas, October 1993. 25 A. Yeah. I believe that it was the handout. 83 1 Q. There you had a topic, did you not, under 2 products liability? 3 A. I can't see it, sir. 4 Q. Psychotropics inducing violence and suicide? 5 A. I did have a topic. 6 Q. You also mentioned this case, didn't you? 7 A. Yes, I did. 8 Q. You said, "Product liability is becoming an 9 emerging area. This is a very complicated area. I'm 10 currently involved in the Wesbecker case, the man who shot 20 11 people at the printing plant in Louisville, killed 8, and that 12 is a products liability suit against Eli Lilly and Prozac. 13 It's about 120 million dollars in damages and will be tried in 14 March of this year." Do you recall that, sir? 15 A. I recall that. 16 Q. Now, when Mr. Stopher came to see you in 17 September of 1993, did he leave you any material? 18 A. He probably did. The materials have come in, 19 you know, over time, so many different time periods. I mean, 20 I'm sure he probably left me something. It's been a 21 continuous stream of materials. 22 Q. As I understand it, that you gave the jury a 23 description of what you reviewed and you start off, you said 24 you received 150 depositions in connection with this case? 25 A. Roughly that; yes, sir. 84 1 Q. Did you yourself read those, sir? 2 A. Almost, yeah, I think so. 3 Q. Didn't Mr. Stopher provide you with summaries of 4 those depositions? 5 A. In some cases he did, but I have summaries of 6 depositions that I didn't have. I have depositions without 7 summaries and I have depositions with summaries. 8 Q. Would it be accurate to state that you read some 9 and didn't read others of those 150? 10 A. Some of those I read directly and it's accurate 11 to say some I read only the summary. 12 Q. And that summary would have been provided by 13 Mr. Stopher's office? 14 A. That's correct. Yes, sir. 15 Q. In those depositions, did you read any of the 16 depositions of any of the Lilly employees who were deposed in 17 this case? 18 A. Can you give me the names, sir? 19 Q. Okay. Doctor Beasley? 20 A. Any others? 21 Q. Let's just take them one at a time. Did you 22 read Doctor Beasley's deposition? 23 A. I don't recall. It's possible, but it didn't 24 factor into anything I've done, so if I did, I've forgotten 25 it. 85 1 Q. Do you remember who Doctor Beasley is? 2 A. No, sir; I can't tell you. 3 Q. He's a Lilly psychiatrist who's primarily been 4 in charge of the science on this drug since 1990. Do you 5 remember reading his deposition? 6 A. Possibly, but since I didn't deal with the 7 science, I mean, I don't recall who I read in that area 8 because that's not an area that I focused on. It's not an 9 area I had anything to do with. 10 Q. You didn't focus on the science; is that what 11 you're saying? 12 A. Yes. In other words, how the drug -- 13 Q. You performed a psychiatric autopsy and didn't 14 focus on the science of the drug that was found on the 15 physiological autopsy? 16 A. If I could finish my answer, please. What I -- 17 no, I did not focus on how the drug was developed, how the 18 studies were done, where they were done, whether they were 19 proper science, whether the FDA agreed with them, what kind of 20 conflicts there may have been in the development of the drug, 21 who the scientists were. That was not my area and I'm not an 22 expert in drug development. 23 Q. Well, you're a psychopharmacologist, aren't you? 24 A. Clinical, yes, but not a research, wet lab, drug 25 development type. 86 1 Q. As I understand it, you've not been provided 2 with Lilly's in-house data on how Lilly did their clinical 3 trials? 4 A. I've seen some data, not comprehensive; no, sir. 5 Q. You didn't want to see it, either, did you? 6 A. Since I wasn't going to be an expert in that 7 area; that's right. 8 Q. You did not -- you have not seen any 9 descriptions of what studies -- I mean, what subjects were 10 used in the clinic -- Lilly clinical trials, have you? 11 A. No. I've seen some, but not all. 12 Q. What have you seen? 13 A. Well, there's a study -- I may be -- I'm 14 forgetting the name, but there was a study -- I'm sure you'll 15 recall it -- where Prozac was compared with imipramine to 16 determine whether it could be used in persons who were 17 agitated versus persons who aren't agitated and whether it's 18 efficacious for those two groups, a comparison of dropout 19 rates and that sort of thing. I did see that, but I don't 20 remember the author. It was a Lilly -- Lilly investigator. 21 It was, I think, a six -- it was a pooled study from six 22 sites, if I'm not mistaken. 23 Q. Are you talking about Doctor Beasley's meta 24 analysis on suicide? 25 A. Without showing it to me, I don't know. No, it 87 1 wasn't on suicide. 2 Q. I think I've got the book that you gave Mr. 3 Dobiesz when you gave your deposition that was described as 4 your trial book. 5 A. Okay. Well, if it's in there, then I saw that. 6 The one Doctor Cooley gave me? Yes, I have that. My 7 colleague gave me that article. 8 Q. Well, I don't know. 9 A. Well, I know, and that's where I got it. 10 Q. Is this your trial book? 11 A. Yeah. 12 Q. Okay. Look in there and tell the jury what 13 articles you have been provided. 14 A. Let me look at the index. It hasn't been moved, 15 has it? 16 Q. No. I just looked under Prozac and looked under 17 Tab 19. 18 A. That's got Wesbecker's use of Prozac. It 19 doesn't have any -- 20 Q. Well, there's an article behind it. 21 A. I apologize. 22 Q. This is a Lilly stamped document. It's got a PZ 23 number stamped on it. 24 A. Doctor Heiligenstein. 25 Q. Heiligenstein. 88 1 A. Yes, sir. 2 Q. He's a Lilly psychiatrist that's not appeared 3 here to testify? 4 A. I saw that article. Doctor Cooley gave me that. 5 Q. Okay. You didn't get that. Doctor Cooley gave 6 you that? 7 A. Yes, sir. He's a colleague of mine. 8 Q. You know why it's got a Lilly PZ number on it? 9 Do you know how Doctor Cooley got the number? 10 A. He may have gotten it from the articles that 11 came in from Mr. Stopher. He works with me, so he could have 12 gotten that. 13 Q. You're not talking about Doctor Denton Cooley, 14 the famous heart surgeon? 15 A. No, I'm talking about another Doctor Cooley, 16 psychiatrist from Arkansas, different person. 17 Q. All right. Okay. You've got Doctor 18 Heiligenstein's article. 19 A. Yes, sir. 20 Q. You read that? 21 A. I did in the past. 22 Q. Okay. 23 A. I haven't read it in the last few months. 24 Q. Let's look through here and see what else. 25 You've got his article. And then we got highlights of Doctor 89 1 Breggin's book on Talking Back to Prozac? 2 A. Yes, sir. 3 Q. There's an abstract of that. 4 A. Yes, sir. 5 Q. I didn't see any other scientific articles on 6 Prozac other than these two in your trial workbook. 7 A. No. They are not in there. If you'll recall, 8 though, I gave your colleague a computer printout on a MedLine 9 search that was done on various articles and abstracts. 10 Q. Okay. As I understand it, that MedLine search 11 you did was simply to see -- you punched up to see whether or 12 not Prozac kills? 13 A. Yes, I did. Didn't find anything. 14 Q. You didn't find a report in the medical 15 literature of Prozac killing somebody? 16 A. Well, it's a medical drug; that's where I would 17 expect to find it and I didn't find it there. 18 Q. Yeah. And that's all the medical research you 19 did for this case was punch up a MedLine article or make a 20 MedLine search to see whether or not Prozac caused, in 21 addition to these two articles, one by Doctor Heiligenstein 22 and one abstract of Doctor Breggin's book? 23 A. No, that's not all I've done. That's all that's 24 in that workbook. That's not all I've done; no, sir. Just 25 because it's not in the workbook doesn't mean I didn't do it. 90 1 Q. Well, you said you also punched up to see if 2 Prozac kills? 3 A. Yes, sir. 4 Q. What else did you do as far as medical research? 5 A. Well, I consulted standard psychopharmacology 6 books, Goodman and Gilman, Psychopharmacology, A Generation of 7 Progress by Metzner. Slater's book on the Psychopharmacology 8 of Aggression. I even went through a legal text, the 9 Courtroom Toxicology, published by Bender, to see if I could 10 find anything from the legal side in terms of Prozac making 11 people kill, and there wasn't anything in there. I had Doctor 12 Fuller's aggression work on animal studies. 13 Q. The one where he was -- well, I'm sorry. I 14 didn't mean to interrupt you. Go ahead and finish what you 15 did. 16 A. Doctor Fuller's work on aggression. Then I have 17 a number of, you know, my personal library on aggression in my 18 office. I have books I have ever since I left Harvard, 19 various books I've kept ever since, Biochemistry and 20 Pharmacology of Aggression. It's always been an interest of 21 mine. Some of those deal with those books. 22 Q. But the only thing that you included in your 23 trial workbook, which is what you're going to refer to at 24 trial, is these two articles; one by Doctor Heiligenstein and 25 Doctor -- an abstract of Doctor Breggin's book on Prozac? 91 1 A. If that's all that's in that trial book, the 2 answer to that question is yes, that's all that's in the book. 3 Q. All right. So you didn't read all the 4 depositions? 5 A. No, I didn't. Of course not. I was told, I 6 don't know this, but I was told there was 400 depositions, and 7 surely I didn't read all those. 8 Q. That brings me back to where we started, and I 9 was asking you whether you had read the depositions of any of 10 the other Lilly scientists, I mentioned Doctor Beasley. 11 A. I understand that, sir. And you have me at a 12 disadvantage. I don't know the Lilly scientists by name. 13 I've never met them and I don't know these people. I'll have 14 to take your word that they're scientists. 15 Q. I'll give you their names. If you remember 16 reading their deposition -- I'm sure you would have remembered 17 it, wouldn't you? 18 A. Possibly, but since I'm not in the science part 19 of the case, I may not remember it. 20 Q. How can you testify here if you're not in the 21 science part of the case? 22 A. Because I'm testifying as a forensic expert 23 about the intent Mr. Wesbecker had to go in and murder all 24 these people. 25 Q. Doesn't that involve science? 92 1 A. Yes. Psychiatric science. 2 Q. Isn't that what -- doesn't Prozac affect the 3 brain? 4 A. Sure it does. I use Prozac every day, sir, I 5 know a lot about it. I don't have to go back and look at how 6 the drug was developed. That's for an expert that I'm not 7 expert in. 8 Q. Well, I'm talking about how Prozac works. Isn't 9 that interesting to you, of interest to you? 10 A. Well, I know that. 11 Q. You know that? 12 A. Yes. 13 Q. Okay. How does it work? 14 A. It's a serotonin reuptake inhibitor that works 15 by down regulating auto receptors on the presynaptic membrane, 16 probably serotonin receptors 1A and 1D, increasing the amount 17 of serotonin in the synaptic cleft to activate serotonin 5-HTP 18 receptors. 19 Q. Did you say presynaptic membrane? 20 A. Yes. 21 Q. That's not what Doctor Fuller said, who is the 22 inventor of this drug. 23 A. That it doesn't affect auto receptors on the 24 presynaptic terminal? Sir, that's where serotonin is 25 reuptaken. It's not reuptaken postsynaptically. 93 1 Q. The effect is on the postsynaptic receptors. 2 A. No. No. No. You misunderstood me, sir. It 3 down regulates both. You asked me where Prozac works. 4 Q. Oh, Prozac. You're right. Prozac works on 5 the -- 6 A. Then serotonin down regulates postsynaptic 7 receptors. That's different. 8 Q. All right. Okay. But it wasn't interesting to 9 you as to who was used in the clinical trials, what group of 10 patients were used? 11 A. No, sir. It's an FDA-approved drug. I don't 12 need to know that. 13 Q. You base your blind faith on the FDA? 14 A. They've forgotten more about approving drugs 15 than I ever knew, sir. 16 Q. And your blind faith in Lilly's character and 17 reputation in reporting the accuracy of their trials to the 18 FDA? 19 A. I don't have any opinion about Lilly. I have 20 opinion about what the FDA said about Lilly's product and 21 whether or not it was acceptable to use in humans. And if the 22 FDA approved it, that's good enough for me. 23 Q. Okay. Any other articles about Prozac? 24 A. Well, some of the popular things. For instance, 25 I discovered that Princess Di is on Prozac and that Rod McKuen 94 1 is on Prozac and some of the other people that have come out 2 recently admitted that they're taking Prozac, that sort of 3 stuff. Time Magazine article on it. 4 Q. All right. I'm talking about scientific 5 articles. 6 A. You didn't ask for specific, you said any other 7 articles. 8 Q. I assume since you're a psychiatrist and 9 testifying here as a scientist, you would understand that 10 that's what this jury is interested in, sir, is some 11 scientific information, not some pop science. All right? 12 A. Mr. Smith, I can't speak for the jury. I can 13 only answer what you ask me. Okay? 14 Q. Any other scientific -- I'll try to be more 15 careful. I've forgot you've given 4,000 at $350 an hour -- 16 A. That's not accurate, sir. 17 Q. -- and that you charge $4,200 a day for doing 18 what you're doing. Any other scientific articles on Prozac 19 that you've reviewed? 20 A. Various -- I did look at the Journal of Clinical 21 Psychopharmacology for the last few years to see what was in 22 there on Prozac and reviewed a number of articles. I can't 23 cite them for you author and verse and volume, but I did 24 review that -- I normally subscribe to that journal, so I did 25 review that. American Journal of Psychiatry for the last few 95 1 years, I've reviewed. 2 Q. Would you go back and review that or are you 3 talking about just your normal reading? 4 A. Oh, no. No. I made an effort to do that. 5 Q. Beg your pardon? 6 A. I made an effort to do that. 7 Q. Looked through two years' worth of back issues 8 of American Journal of Psychiatry? 9 A. I don't think I said two. I said a few. I 10 don't remember exactly how many. Probably four or five years. 11 Q. You keep them stacked? 12 A. Well, the case -- I mean, to me the relevant 13 issue was the case -- this case is in 1989, so I went back to 14 see what was new since '89. 15 Q. Okay. So you could charge $350 an hour for 16 going back through scientific publications, so you went back 17 through five years of this; is that right? 18 A. In the overall scheme of putting the case 19 together; yes, that's correct. 20 Q. Let me see if I can get back on track here. 21 Would it be accurate to say that you were not provided with 22 any of Lilly's in-house data on how Lilly did the original 23 studies, what subjects were in the studies, how they chose 24 their subjects and what the outcome of the studies were? 25 A. No. That's not accurate. I did see a 96 1 deposition of one of the experts in this case, and I'm 2 blocking on the name who testified on the science about this. 3 The articles that supported that testimony I have not seen. 4 Q. Well, your deposition was given on September 6. 5 A. I have it, sir. Just if you'll cite me the 6 page. 7 Q. Good. You better let me stay away from you. 8 You don't want to get my cold. 9 A. Thank you. What page, sir? 10 Q. Turn to Page 90. Start at Line 16, the question 11 is: "I'm doing my best to get through this deposition, sir. 12 Have you since the time that you've been retained on this 13 particular case been provided any information by Lilly on the 14 drug Prozac?" 15 Your answer was: "I may have. God only knows. 16 It could be buried over there somewhere. I cannot remember. 17 I can tell you, though, I have not been provided with their 18 in-house data on how they did the original studies, what 19 subjects were in these studies -- those studies, how they 20 chose the subjects, what the outcome of the studies were. I 21 have not seen any FDA material. I am not privy to any of the 22 decisions on how Prozac was approved by the FDA, how it was 23 picked for marketing, what marketing decisions were made about 24 it, what materials would be --" 25 Well -- the question was: "Well --" 97 1 Then you said, "Let me finish my answer so we're 2 clear on this. I have no idea what decisions were made about 3 putting stuff in the PDR, what disclaimers would be for the 4 PDR, what the disclaimers would be about side effects. I have 5 none of that data. I have never seen it. I don't want to see 6 it." 7 Correct, sir? 8 A. Yes, sir. 9 Q. So it is accurate that you have not seen any of 10 this data that we mentioned? Or at least had not as of 11 September -- 12 A. When you say any, I haven't seen any significant 13 data. I may have seen something. I don't know. The answer 14 to what's in there is yes. I mean, I stand by what I said. I 15 don't have any idea how this drug was developed, marketed, 16 figured out what would go in the PDR, I don't know that. 17 Q. And you didn't want to see it. 18 A. It wasn't my part of the case. No, I didn't 19 want to see it. It would just encumber me and drag me down. 20 Q. What? 21 A. It would just drag me down. I wouldn't be able 22 to focus on what I was supposed to do. 23 Q. What do you mean it wasn't your part of the 24 case? 25 A. Forensically, sir, I wanted to know about the 98 1 mind of Joseph Wesbecker, not how Prozac was developed. 2 Q. Wouldn't you think that that would be valid to 3 know how Prozac was developed, know what subjects were 4 included in the clinical trials, how the clinical trials were 5 done, how this drug got to the market and what effects and 6 side effects were found during the clinical trial process? 7 A. No, not unless Joseph Wesbecker was one of the 8 test subjects. 9 Q. You said that Prozac didn't cause agitation or 10 things of that nature, didn't you? 11 A. Oh, I don't think I said that. 12 Q. Are you saying that now, Prozac causes 13 agitation? 14 A. It's a known side effect. Sure. It is with 15 many antidepressants. 16 Q. Would you be interested in knowing that in 1984, 17 the BGA had reservations regarding the CNS side effects of 18 Prozac, there had been patients complaining of psychosis and 19 hallucinations? 20 MR. STOPHER: May we approach the bench, Your 21 Honor? 22 (BENCH DISCUSSION) 23 MR. STOPHER: Your Honor, this material is 24 clearly outside of anything that he has testified about, and 25 to cross-examine this man about documents that he hasn't seen, 99 1 and we've now been over this for some period of time in which 2 he's clearly established what he has not seen, and he has not 3 seen these documents. It's immaterial to be asking this man 4 about something that he doesn't know anything at all about. 5 JUDGE POTTER: He says this is a great drug. 6 Mr. Smith, are we at a point where we can take a break for 7 lunch and get these things straightened out? 8 MR. SMITH: Yes. 9 (BENCH DISCUSSION CONCLUDED) 10 JUDGE POTTER: Ladies and gentlemen, I'm going 11 to take the lunch recess at this time. As I mentioned to 12 you-all before, do not permit anybody to talk to you about 13 this case; do not discuss it among yourselves and do not form 14 or express opinions about it. We'll stand in recess till 15 2:00. 16 (JURORS EXCUSED; BENCH DISCUSSION) 17 MR. STOPHER: I would prefer that this hearing 18 on these matters be held in chambers. I don't see any reason 19 to do this for the press. It is not a matter that should be 20 in the press. 21 JUDGE POTTER: Okay. All right. We'll do this 22 in chambers. 23 (HEARING IN CHAMBERS) 24 JUDGE POTTER: Doctor Granacher, I'll remind you 25 you're still under oath. Mr. Smith, you were going to ask him 100 1 some questions. 2 3 VOIR_DIRE_EXAMINATION ____ ____ ___________ 4 5 BY_MR._SMITH: __ ___ ______ 6 Q. Doctor Granacher, as I understand it, you've 7 been charged, investigated or convicted of some type of 8 Medicare, Medicaid fraud in connection with your medical 9 practice? 10 A. Never charged. Never investigated. Never 11 convicted for that. 12 Q. Has there been some type of claim, some type of 13 newspaper article? 14 A. Yeah, but not about Medicare and Medicaid fraud. 15 Q. Okay. What's it about? Don't play games with 16 us. Tell me what it's about. 17 MR. STOPHER: I object to his saying that he's 18 playing games with you. 19 JUDGE POTTER: Okay. All right. No. Just ask 20 the question, Mr. Smith, and answer the question, Doctor. 21 A. Do you have a specific question, Mr. Smith? 22 Q. Read it back. 23 (REPORTER READS THE RECORD) 24 A. Yes. There was a newspaper article I think in 25 1991, a very sick alcoholic patient filed a complaint with the 101 1 medical licensure board that my treatment of her was not -- 2 well, let's see, how did she put it, was not adequate and that 3 I didn't treat her for the things I said I treated her for, 4 and she alleged that the things I told Blue Cross I treated 5 her for didn't occur. That was thoroughly investigated by the 6 Kentucky Medical Licensure Board, and they dismissed it July 7 1992. 8 Q. Any other investigations by the Kentucky medical 9 board? 10 A. No, sir. 11 Q. Any other investigations by any governmental 12 agency whatsoever? 13 A. I've never been investigated by a governmental 14 agency. I don't understand where you come from on Medicaid or 15 Medicare. Federal government has never investigated. State 16 of Kentucky has never investigated. 17 Q. How about the Social Security Administration? 18 A. Never. 19 Q. Health and Human Resources? 20 A. No, sir. I've worked for them. No. They've 21 never investigated me; no, sir. I used to do Medicare surveys 22 for Medicare. 23 Q. Have you ever been the subject of any kind of 24 investigation concerning the appropriateness of your charges 25 or whether or not those charges were rendered by you? 102 1 A. Other than what occurred that I just told you 2 about, never, no. 3 MR. SMITH: Okay. That's all I have. 4 MR. STOPHER: We renew our motion, Your Honor, 5 to strike those questions for obvious reasons. 6 JUDGE POTTER: Okay. I'm going to grant the 7 motion. Mr. Smith, I don't think there's a basis for you to 8 ask him those questions on the stand. 9 MR. SMITH: Okay. 10 JUDGE POTTER: Do we need him any more till 11 2:00? 12 MR. SMITH: I don't. 13 MR. STOPHER: I don't think so. 14 JUDGE POTTER: Thank you very much, sir. 15 DOCTOR GRANACHER: You're welcome. 16 (VOIR DIRE EXAMINATION CONCLUDED; DOCTOR 17 GRANACHER LEAVES CHAMBERS) 18 JUDGE POTTER: Mr. Stopher, you had an objection 19 that had to do with taking him over a lot of documents that he 20 says he's never seen. 21 MR. STOPHER: Yes, sir, Your Honor. The 22 objection is that now it's been established very clearly what 23 he has seen and what he has not seen, and we object to going 24 over documents -- documents have been gone over many, many 25 times in this case regarding the BGA in Germany or Lilly's 103 1 internal documents or documents at hearings before the FDA. 2 He has clearly now said that he has not reviewed those matters 3 and has no opinions about those matters and is not qualified 4 to do it, and the only purpose of asking those things would be 5 to ask the question not to get an answer because we all know 6 that the answer is he has not done that and doesn't have those 7 opinions, so we move to exclude those questions because they 8 are not calculated to elicit testimony but are only calculated 9 to ask the question. 10 JUDGE POTTER: What do you say to that, Mr. 11 Smith? 12 MR. SMITH: He's testified that Prozac does not 13 cause violence. He's testified that Prozac is absolutely safe 14 in the treatment of depression. He's testified that Prozac is 15 a good and effective antidepressant. That's absolutely 16 100-percent critical to cross-examination of this witness. 17 What information he has and what he doesn't have and, you 18 know, if there are other facts that he's not looked at, the 19 jury's entitled to know what he hasn't looked at. 20 MR. STOPHER: Your Honor, he has testified based 21 upon his clinical experience with regard to this drug. He can 22 be cross-examined as he has now already been as to what he has 23 seen and what he has not seen. The jury now clearly knows 24 that he has not seen any of the documents that Mr. Smith wants 25 to parade out. That's already been established. That's in 104 1 the record. It's undisputed, and now the purpose of this is 2 not to get information from him because it's already been 3 established that he has not seen these documents. The purpose 4 is to ask questions knowing in advance what the answer is, and 5 that is inappropriate. 6 MR. SMITH: If we -- if they could cross-examine 7 Doctor Peter Breggin with an article published in Penthouse on 8 the psychiatric holocaust, I damn sure ought to be able to 9 cross-examine this witness concerning what he knows and what 10 he doesn't concerning scientific studies on this drug. He 11 says the drug is safe. I'm entitled to establish that there 12 was other governmental agencies and bodies and Lilly itself 13 that recognized problems with the drug. 14 JUDGE POTTER: Mr. Stopher, what time -- we're 15 just dealing in taking him through the BGA; is that what we're 16 dealing with, Mr. Smith? I mean, what are your plans, 17 because... 18 MR. SMITH: Not much past the BGA. 19 JUDGE POTTER: I do think he can take him 20 through the BGA, if he wants to. This gentleman explained 21 rather sweeping conclusions. He didn't come in and say, you 22 know, "I've never seen a problem in my practice." He came in 23 and gave a rather sweeping conclusion. He also, if I remember 24 correctly, had the BGA insert read to him and said that 25 doesn't make any difference because in America we all assume 105 1 that stuff to be -- that's just kind of our base knowledge, 2 you don't have to put it on the label, if that's the way I 3 heard him say it. You know, provided this doesn't get 4 unbelievably repetitive and unbelievably detailed, I think Mr. 5 Smith has a right to establish that he may not have, from Mr. 6 Smith's point of view, all the facts, that he did say, "If 7 it's good enough for the FDA, it's good enough for me." 8 MR. STOPHER: That's because Mr. Smith asked him 9 that. And his total opinion is based on his experience. And 10 to ask him about documents that he -- it's already now 11 established that he has not seen these documents. We've been 12 over and over that. Every conceivable angle of that has been 13 established. And to ask him about items that are obvious is 14 inconsistent with the Court's rulings that I can't ask him 15 whether or not these actions were intentional because it is 16 obvious to everybody that they were. 17 JUDGE POTTER: No. Well, I don't see those two 18 rulings as inconsistent. One of them is I don't think it's an 19 appropriate subject for expert testimony. I think the jury 20 can sort out whether he shot Mr. Barger intentionally or by 21 mistake and whether he -- how long he had been planning this. 22 I think Mr. Smith is entitled to show him some facts. I mean, 23 in the perfect world, the gentleman could say, "Ah-ha, if I 24 had known that, I would have changed my mind." 25 MR. STOPHER: I think, Your Honor, we're just 106 1 going to draw this out, going over it. 2 JUDGE POTTER: We are drawing this out. 3 MR. STOPHER: And the purpose, again, is not to 4 get information from the witness; the purpose is to ask the 5 questions, and that is inappropriate. Questions should not be 6 evidence. They are not evidence. And that's my objection and 7 I -- you know, to ask him about things that he clearly has not 8 seen on items that he is not an expert here to testify about. 9 JUDGE POTTER: Well, he did -- you know, got a 10 lot broader than I thought he was going to get. And he 11 expressed opinions that Prozac is perfectly safe, that the 12 warning was perfectly adequate, that the German thing wouldn't 13 have affected anything. Well... 14 MR. SMITH: Let me give you one other food for 15 thought for the lunch hour in addition to the food that you're 16 going to consume. I'm going to take the position after lunch 17 he's opened the door to Oraflex. He said, "If it's good 18 enough for the FDA, it's good enough for me." And I intend to 19 stick that right in front of him concerning, Number One, he 20 said the FDA doesn't make any mistakes. Number Two, he says 21 that Lilly does good testing of their drugs. So I think 22 really this is the time that I should use the Oraflex. 23 JUDGE POTTER: Well, I don't -- what is it, this 24 afternoon or tomorrow morning we're going to decide what 25 happens to the Oraflex, and you can put his testimony in a 107 1 pile that is on your side that you ought to be able to 2 introduce it, but I'm going to rule on this witness he has not 3 said anything that would allow you to ask him about whether or 4 not another drug at a different time was withdrawn from the 5 market. 6 MR. SMITH: I'm talking about the fact that this 7 house subcommittee criticized the Food and Drug Administration 8 for their oversight of the pharmaceutical manufacturers. 9 JUDGE POTTER: Okay. Well, you may get that in, 10 but you'll get it in after I hear argument. 11 MR. SMITH: So you don't have to worry about it 12 at lunch. 13 (HEARING IN CHAMBERS CONCLUDED; LUNCH RECESS) 14 SHERIFF CECIL: The jury is now entering. All 15 jurors are present. Court is back in session. 16 JUDGE POTTER: Please be seated. Doctor, I'll 17 remind you you're still under oath. 18 Mr. Smith. 19 Q. Doctor Granacher, this morning you made the 20 statement in connection with the drug approval process, "If 21 it's good enough for the FDA, it's good enough for me; is that 22 right? 23 A. I did say that. 24 Q. Have you ever seen an exhibit -- I believe we've 25 authenticated this, but I don't think we've given it to the 108 1 jury -- Plaintiffs' Exhibit 259. It says, "When a drug goes 2 to market, we know everything about its safety. Wrong." And 3 then it says call 1-800-FDA-1088. It's FDA MedWatch. "If 4 it's serious, we need to know." Have you seen this in any of 5 the journals that you review in connection with your practice, 6 sir? 7 A. Yes, sir. 8 MR. SMITH: We would offer at this time, Your 9 Honor, Plaintiffs' Exhibit 259. 10 JUDGE POTTER: Be admitted. 11 SHERIFF CECIL: (Hands document to jurors). 12 Q. As I understand it, Doctor Granacher, you 13 testified that half of your practice consists of forensic 14 psychiatry, testifying in trial, giving depositions and things 15 of a medical/legal nature, and that the other half of your 16 practice consisted of a clinical practice; is that right, sir? 17 A. Yes, sir, basically. 18 Q. Do I understand that you testified in your 19 deposition that you currently maintain over 2,000 patients? 20 A. Yes, sir. 21 Q. Now, are you saying that you're now treating 22 2,000 patients? 23 A. Yes. 24 Q. And how often are you seeing those patients? 25 A. Almost every day. 109 1 Q. Per patient, how often will you see them? 2 A. Well, these are established patients that I was 3 referring to, sir, which means that they've been in my 4 practice for some time. Average patient we would see between 5 one and four times a year. 6 Q. All right. So if you've got 2,000 patients, you 7 say one to four times a year -- why don't we use two, all 8 right, as an average -- so that means you're going to have 9 4,000 office visits; is that right? 10 A. Well, I don't know the number of office visits. 11 A lot of office visits, yes. 12 Q. So 4,000 depositions, and you're having -- 13 A. Four thousand depositions in my lifetime, sir. 14 Q. Right. I understand that. But you're also 15 seeing patients on 4,000 occasions; is that right? 16 A. Yes. That's actually small compared to many 17 physicians, but that's right. 18 Q. Okay. What's the average amount of time that 19 you spend with those patients? 20 A. Not very long. 21 Q. How long? 22 A. Ten, fifteen minutes. 23 Q. What are you doing for those patients if you see 24 them for 10 or 15 minutes? 25 A. These are patients that are psychopharmacology 110 1 patients that are generally depressed patients or have some 2 other biochemical problems associated with causing a mental 3 disorder. And once they've been well established on the 4 medication, most of these are medication follow-up visits. 5 Q. So you don't do psychotherapy? 6 A. No, sir; I don't. I used to years ago, but I 7 don't anymore. 8 Q. Have you reviewed any of the trial testimony in 9 this case? 10 A. Yes. Yes, sir. 11 Q. I mean, transcripts of testimony given at this 12 trial? 13 A. Yes, sir. Doctor Greist and Doctor Coleman, son 14 James -- James Wesbecker, Brenda Camp -- Brenda Wesbecker 15 Camp. 16 Q. Anybody else? You listed four witnesses; we've 17 had over seventy, sir. 18 A. I have not seen all 70; no, sir. 19 Q. Well, did you read any of those individuals' 20 complete trial testimony or did you just read summaries of 21 their testimony? 22 A. No. I didn't have summaries; I had the trial 23 depositions. 24 Q. And did you read all of it? 25 A. Yes, sir. 111 1 Q. I'm not talking about depositions taken prior to 2 trial; I'm talking about these witnesses' testimony when they 3 sat where you sit. 4 A. Right. That's correct. Yes, sir. 5 Q. I assume then that you heard Brenda testify that 6 in July of 1989, Mr. Wesbecker was a great comfort to her 7 following the death of her husband -- of her father. 8 A. I do recall that. 9 Q. And that for some period of time, Mr. Joe 10 Wesbecker had been assisting her in her care of her father. 11 A. I recall that. I don't recall the details of 12 what he did, but I do recall the testimony. 13 Q. And that he was kind and helpful, too, and a 14 friend to her father. 15 A. That's the way she portrayed it. 16 Q. And do you recall her testimony that in July 17 1989, before Mr. Wesbecker was put on Prozac, he and Brenda 18 went to Gatlinburg, Tennessee, for a visit -- for a vacation? 19 A. I recall that; yes, sir. 20 Q. And that that vacation went pleasantly? 21 A. That was her description, yes. 22 Q. Did you review the photographs that were taken 23 in this case of Mr. Wesbecker and his family? 24 A. No, sir. I don't think I've ever seen those. 25 Q. This is a photograph of Mr. Wesbecker. I 112 1 believe, and I don't want to -- of course, I'm not under oath 2 so I don't have to swear, but it's my understanding that that 3 picture of Mr. Wesbecker was taken in July of 1989 in 4 Gatlingburg, Tennessee. You've never seen that photograph? 5 A. No, sir. 6 Q. That's just a Xerox copy of it. 7 A. It's fairly clear. I think I can see it, but I 8 haven't seen it. 9 Q. Have you seen any photographs of Mr. Wesbecker? 10 A. Only police photographs. 11 Q. The police photographs? 12 A. At the scene. 13 Q. At the scene. But you've not seen any 14 photographs of Mr. Wesbecker in life? 15 A. I don't think so; no, sir. 16 MR. SMITH: Could we get this marked so we can 17 introduce it as an exhibit. 18 Here's another photograph, Doctor Granacher. 19 I'll represent to you that this is a photograph taken several 20 years earlier and is a photograph of Mr. Joe Wesbecker, his 21 son Jimmy, his stepdaughter, Melissa, to whom you've referred 22 to, who he's got his arm around, and Ms. Camp's son, Chris. 23 A. Is this Chris to his right? 24 Q. Yes, the younger, preteen. 25 A. And the little boy is Jimmy? 113 1 Q. No. This is Jimmy, this is Chris, and this is 2 Melissa. 3 A. All right, sir. No. I haven't seen that. 4 Q. And that's Mr. Wesbecker in the background. 5 A. I hadn't seen that. 6 Q. Is that of any significance to you? 7 A. No. 8 Q. Certainly that looks like a happy group of 9 people, doesn't it? 10 A. Not necessarily. I've learned in psychiatry 11 that when you look at pictures of families you generally don't 12 know much about what's behind the picture. It looks like 13 they're on some outing of a sort, but it doesn't tell you if 14 somebody is depressed or an alcoholic or if they beat their 15 wife or if they have thoughts of -- 16 Q. People there have a smile on their face? 17 A. Yes. 18 Q. Mr. Wesbecker has a smile on his face? 19 A. Yes. 20 Q. Beasley has a smile on her face? 21 A. Well, I don't know if it's a smile or a scowl, 22 but she has an expression. I agree. Some have smiles; one 23 maybe has a scowl. 24 Q. That's a photograph that just if laypeople were 25 looking at it, I know we're not psychiatrists, would appear to 114 1 be a pretty happy family, wouldn't it? 2 A. Doesn't tell you a thing. If Doctor Coleman can 3 look Joe Wesbecker in the eye and not know what he thinks, how 4 can I look at that and know? 5 Q. You don't believe that a picture says a thousand 6 words, I guess? 7 A. Pictures are not used for psychiatric diagnosis, 8 sir. 9 Q. And you didn't feel it would be useful just to 10 see what the man looked like in life? 11 A. I'd like to know. Whether it's useful to a 12 forensic analysis, not necessarily. 13 Q. Here's another photograph of Chris, Jimmy, 14 Melissa and Joe Wesbecker. There's mountains behind there, or 15 trees behind there. It looks like a festive occasion. 16 A. Well, it's a picture standing in front of trees 17 maybe on mountains with buildings behind it; whether it's 18 festive, I don't know. 19 Q. It looks like a vacation-type photograph, 20 doesn't it? 21 A. Probably so. It doesn't look like anything I 22 would expect to see in somebody's yard. It's clearly some 23 geographic area probably different than where they live. 24 Q. And, finally, here's a picture of Mr. Wesbecker 25 in life with Jimmy and Kevin, his two sons. I assume you 115 1 hadn't seen that picture, either? 2 A. No, sir; have not. 3 Q. Appears to be a man with two children that bear 4 a resemblance to him; the boys certainly have smiles on their 5 face, don't they? 6 A. Yes, they do. Mr. Wesbecker doesn't, but they 7 do. 8 Q. Joe Wesbecker was proud of his children, wasn't 9 he? 10 A. One of them. 11 Q. He wasn't proud of Kevin or wasn't proud of 12 Jimmy? 13 A. I think he enjoyed Jimmy very much and felt very 14 close to Jimmy. There were parts of Jimmy I don't think he 15 was proud of. Kevin, hard for me to tell. I mean, a child 16 you don't talk to for five, six, seven years and cut out of 17 your will, I don't know. 18 Q. Well, Kevin -- did you read Kevin's testimony? 19 A. Not trial testimony, no. I haven't seen that. 20 Q. He testified there and told the jury he loved 21 his dad and felt like his dad loved him and at the time of 22 this they had for the last few weeks or months even been 23 getting back together and trying to reestablish that riff that 24 had come between them. 25 A. James had urged his dad to do that for years. 116 1 I'm aware of that. 2 Q. And were you aware that in fact that they were 3 taking some steps to do that? 4 A. I was aware of that. That's not what you asked 5 me, though. 6 Q. We would offer Exhibits 263, 262, 261 and 260, 7 Your Honor, and request we either make copies or obtain the 8 originals from Mr. Stopher for publication to the jury. 9 MR. STOPHER: Your Honor, may we approach the 10 bench for just a minute? 11 (BENCH DISCUSSION) 12 MR. STOPHER: Can I see those? The one that was 13 taken in Gatlingburg, which one is that? 14 MR. SMITH: Again, as I told the Witness, I'm 15 not positive. 16 MR. STOPHER: Your Honor, this was not taken in 17 Gatlinburg. I gave this photograph to Mr. Smith, and that is 18 not where it came from, and I move to strike the 19 representation that it came from there. And I accordingly 20 will object to the introduction of these until some witness 21 can identify and testify to these. 22 JUDGE POTTER: I'm going to sustain the 23 objection. 24 (BENCH DISCUSSION CONCLUDED) 25 Q. Do you recall Ms. Brenda Camp testifying that 117 1 Joseph Wesbecker was a friend and confidant of hers to the 2 very end? 3 A. I do recall that, and I think he felt that way 4 about her. 5 Q. Do you remember -- you indicated that 6 Mr. Wesbecker had divested himself of this property. Do you 7 recall that in fact Mr. Wesbecker deeded the house on Nottoway 8 because Ms. Camp had wanted some type of settlement and that 9 it was at her insistence that Mr. Wesbecker deed the property 10 to her? 11 A. I recall -- 12 Q. Or at least make an account for that? 13 A. I recall that, yes. 14 Q. Do you have any reason not to believe that? 15 A. I have no reason not to believe it. 16 Q. Do you remember that the -- Ms. Camp had 17 testified that it was her urging that the utilities be cut off 18 at the Nottoway? 19 A. I was aware of that. 20 Q. You didn't mean to leave the impression that 21 Mr. Wesbecker had had this cut off because he wanted to become 22 some recluse, did you? 23 A. Yeah, I did mean that. Even though the impetus 24 was Ms. Camp, it doesn't seem normal for me for a man to live 25 in that kind of environment. He could have found a different 118 1 environment. 2 Q. Did you know that in fact he was spending his 3 nights at the Blevins Gap property? 4 MR. STOPHER: Objection, Your Honor. That's not 5 the evidence. 6 JUDGE POTTER: I'll do the same thing I did 7 before. Ladies and gentlemen of the jury, you-all know what 8 the evidence is and Mr. Smith is just asking this gentleman 9 about what he assumed and putting his facts in. 10 Go ahead, Mr. Smith. 11 A. I do recall reading that, yes. 12 Q. And, in fact, Lieutenant Burbrink testified 13 yesterday that his investigation revealed that for some time 14 Mr. Wesbecker had maintained a dual residence at Nottoway and 15 in Blevins Gap? 16 A. I understand that, but there was also testimony 17 about urinating in cans and going places to defecate, and in 18 my standard or my statement that's not normal behavior. 19 Q. Were you aware that the electricity and the 20 water was turned back on in April? 21 A. Yes, I was aware of that, but for a couple 22 months there it was off. 23 Q. But it was back on in April. 24 A. What do you do for two months? 25 Q. Probably spend a lot of time at Blevins Gap with 119 1 Brenda helping her take care of her sick dad. Is that 2 reasonable? 3 A. Possibly. But when Mr. Henry was over there he 4 thought it was an unpleasant place. 5 Q. No. He didn't say that when he testified here. 6 He said it was a neat house. He was impressed with how neat 7 it was. Did you read his testimony? 8 A. I read his testimony. That's apparently not 9 what he said he told his wife. 10 Q. The jury will recall what he said. It wasn't 11 something that he was being critical of the house, because it 12 was neat. He said it was neat and tidy. Is that indicative 13 to you of some abnormality, character defect? 14 A. I would never make a diagnosis based on 15 somebody's house, but what Mr. Henry had to say about 16 Mr. Wesbecker, as I recall, was he found him to be spooky. 17 Q. Spooky? 18 A. Yes, if I recall the testimony correctly. 19 Q. Are you going to plug that into your opinion 20 here, spooky? 21 A. In the overall picture I would, yes. 22 Q. But you're not going to consider the science on 23 Prozac? 24 A. Sure. I'll consider the science on Prozac, but 25 I'll leave that science to persons far more qualified to 120 1 discuss that than I, and have been here to talk to the jury. 2 Q. Well, let me show you Plaintiffs' Exhibit -- 3 have you been provided with any of the exhibits that have been 4 introduced into evidence at the trial of this case, Doctor 5 Granacher? I know you didn't get into the Lilly data on the 6 clinical trials, but have you been provided with copies of the 7 exhibits that have been introduced that this jury has seen? 8 A. I have seen a few exhibits. Exactly which ones, 9 unless you ask me a question that triggers it, I couldn't 10 answer it. I have not seen this one. 11 Q. This is Exhibit 78. It is the review by the 12 Lilly psychiatrists, Doctor Charles Beasley, John 13 Heiligenstein and Doctor Dan Masica, take a look, where 14 they're reporting to Doctor Leigh Thompson. 15 MR. STOPHER: May we approach the bench on this, 16 Judge? 17 MR. SMITH: Why don't you read that. 18 (BENCH DISCUSSION) 19 MR. STOPHER: I object on the ground that this 20 is an internal E-mail message at Lilly. There is no way that 21 he could have any possible knowledge of this, and the only 22 purpose of this is just to talk about this document and to ask 23 a question. There will be no competent evidence from him. 24 JUDGE POTTER: What is the question, Mr. Smith? 25 MR. SMITH: He said I believe that Prozac is 121 1 safe but I will leave that to the people more knowledgeable 2 than me, the science on this. Here's the people more 3 knowledgeable. This is cross-examination. This is a 4 Defendant document. This is the Defendant's expert. 5 MR. STOPHER: This is not an exhibit from the 6 Defendant; it is a Plaintiffs' exhibit. It's already been 7 introduced and questioned about to the people that wrote it 8 and received it and the other people at Lilly. To ask this 9 man a question about an internal document at Lilly that was 10 never distributed or never meant to be distributed is 11 inappropriate. 12 JUDGE POTTER: Is this where Mr. Thompson gets 13 mad at them because they changed the numbers right before his 14 presentation? 15 MR. SMITH: Yes. We feel that caution should be 16 exercised... 17 JUDGE POTTER: If he keeps it short I'm going to 18 let him say would he change his opinion if he knew all this 19 stuff. 20 (BENCH DISCUSSION CONCLUDED) 21 Q. Look with me -- this is the September 14th, 22 1990, curiously enough, just a year to the day after this 23 tragedy occurred. Look at the bottom section of the page 24 where it says Verbatim. This is a Lilly internal memorandum. 25 It says, "We feel that caution should be exercised in a 122 1 statement that suicidality and hostile acts in patients taking 2 Prozac reflects the patient's disorder and not a causal 3 relationship to Prozac. Postmarketing reports are 4 increasingly fuzzy, and we have assigned 'yes, reasonably 5 related,' on several reports," reports meaning reports of 6 hostility and suicidality. Did Mr. Stopher give you that in 7 the materials he asked you to review? 8 A. No, sir. I don't think I've seen this. 9 Q. All right. Look at Plaintiffs' Exhibit 65. 10 This is a document that goes back to February 1985. This has 11 to do with the BGA's review of Prozac and its application for 12 marketing in Germany. It says for the drugs concerned -- down 13 at Point 2, "For the drugs concerned, there is, according to 14 their specific profile of adverse events, the justified 15 suspicion that they have unacceptable damaging effects. The 16 use of the preparation seems objectionable, as the increase in 17 agitating effect occurs earlier than the mood-elevating effect 18 and, therefore, an increased risk of suicide exists." Do you 19 see that? 20 A. Where are you, sir, which page? 21 Q. .2 and 2.1 on the first page. I'm sorry. It's 22 on the next-to-the-last page. 23 A. I wasn't with you there. 24 Q. I'm sorry. 25 A. Starting with Ladies and Gentlemen? 123 1 Q. Uh-huh. This is a report from the BGA reviewer, 2 Section .2, 2.1: "The use of the preparation seems 3 objectionable, as the increase in agitating effect occurs 4 earlier than the mood-elevating effect and, therefore, an 5 increased risk of suicide exists." 2.2 is, "During treatment 6 with the drug, some symptoms of the underlying disease: 7 anxiety, insomnia, agitation, increase which as an adverse 8 effect exceed those which are considered acceptable by medical 9 standards." Are you aware of that? 10 A. I can't give you an opinion. You would have to 11 show me all of the German data on which this letter is based. 12 How do I know it's not out of context? Plus, I know very 13 little about German psychiatry, if anything. I don't know how 14 they do things in Germany. 15 Q. It's the same data, Doctor Granacher, that Lilly 16 submitted to the United States Food and Drug Administration. 17 A. Well, you're testifying to me about that, but I 18 can't tell by reading this letter that that's the case. 19 Q. It's been established. Doctor Thompson, Doctor 20 Wernicke, Doctor Fuller, all of the Lilly scientists have 21 testified that the same data that was submitted to the BGA was 22 the same data that was submitted to the FDA. 23 A. Then I think the jury should consider those 24 doctors. I don't have an opinion. I'm not expert in German 25 psychiatry or German studies. 124 1 Q. Mr. Stopher didn't give you this document to 2 review in your psychiatric autopsy, where you're trying to 3 pick up all the pieces of the puzzle and get every bread crumb 4 in connection with what occurred? 5 A. I don't consider this part of a psychiatric 6 autopsy, and I've got a lot of bread crumbs, but I didn't have 7 this. 8 Q. You wouldn't find this is an important bread 9 crumb or an important piece of the puzzle if a regulatory body 10 found this drug to be objectionable? 11 A. Not unless they acted upon it. They didn't act 12 upon it. 13 Q. Yes, they did. They required for a different 14 package insert than was required in the United States. 15 A. I read that package insert. I don't see it as 16 any significant difference than our own. 17 Q. Is there any problem with having that package 18 insert in the United States? 19 A. Germany? 20 Q. Yeah. 21 A. Sure. What do you do about the other 73 22 countries' package inserts? Do we distribute them, too? 23 Q. No. I'm talking about the recommendation that 24 in patients who present a suicidal risk. 25 A. Yes. 125 1 Q. Patients who have extreme excitability, that 2 consideration be given for the concomitant use of 3 tranquilizers when patients are given Prozac. 4 A. See, that's my point, Mr. Smith. I don't know 5 much about German psychiatry. In the United States, we know 6 that already. 7 Q. You think you know that already? 8 A. I think most physicians in the United States 9 know that. I think most physicians in the United States 10 practice that way. 11 Q. Then what would be the problem with putting that 12 in the United States package insert? 13 A. You ought to ask the FDA that. That's not for 14 me to say. 15 Q. Well, Lilly submits this to the FDA for 16 approval. 17 A. I understand that. And I assume those reasoned 18 and talented scientists looked at the data and drew a 19 conclusion. They are far more expert in that than I. I am 20 not a statistician; I'm not a drug design expert; I don't hold 21 myself out to be that kind of person. And I would defer that 22 to the other people that have testified before this jury. 23 Q. Okay. Well, we could go through a few more 24 exhibits. 25 A. Would you like this one back, sir, so I don't 126 1 lose it? Thank you. 2 Q. Did Mr. Stopher make you aware that Doctor 3 Cohen -- 4 A. Doctor who, sir? 5 Q. Doctor Marlene L. Cohen, one of their imminent 6 scientists at Lilly, in her review of the safety update to the 7 United States Food and Drug Administration found that, "CNS 8 stimulation, agitation and insomnia from the data taken in 9 concert, it might appear there is a greater incidence of CNS 10 stimulation with fluoxetine as compared to placebo; for 11 example, a greater instance of insomnia and anxiety was 12 reported, agitation seemed pronounced, a decrease in REM sleep 13 was reported, and there may be a suggestion of manic 14 psychosis. As with other antidepressant agents used in the 15 depressed population, mania or CNS stimulation may be a 16 component of the action of fluoxetine." 17 A. What CNS stimulant did they test it against? 18 Q. What CNS stimulant did they test it against? 19 A. Yes, sir. 20 Q. This is the Lilly scientists in reviewing the 21 Prozac. 22 A. I understand that. What CNS stimulant did they 23 test it against? 24 Q. What CNS stimulant? Well, they didn't test it 25 with any CNS stimulant. 127 1 A. Then you don't have an answer. 2 Q. She did. She said it was a stimulant. 3 A. What did she test it against? 4 Q. I'll let you look at it, if you want to argue 5 with it. 6 A. I'm not arguing; I just want to know what 7 stimulant it was tested against. 8 MR. STOPHER: What is this? 9 MR. SMITH: Exhibit 71. 10 A. (Reviews document) Well, first of all, sir, all 11 antidepressants reduce REM sleep with the exception of 12 trazodone and, secondly, she didn't compare it against a 13 stimulant. There's no stimulant mentioned. 14 Q. It says, "CNS stimulation, agitation and 15 insomnia from the data taken in concert, it might appear there 16 is somewhat greater incidence of CNS stimulation with 17 fluoxetine as compared to placebo." 18 A. I see that. 19 Q. What she compared it with was she was looking at 20 the Lilly data comparing Prozac with an inactive drug, 21 placebo; right? 22 A. Compared it to a sugar pill, sir. 23 Q. Right. 24 A. If she didn't compare it to a stimulant, you 25 have no answer. 128 1 Q. Is that right? 2 A. That's correct. 3 Q. Can't you say it's more stimulating than 4 nothing? 5 A. Well, everything is more stimulating than 6 nothing. You have to compare it to a stimulant, Mr. Smith. 7 Q. Would you then say that in order to determine 8 whether or not Prozac is a stimulant, you've got to run a 9 clinical trial and compare Prozac with some amphetamine? 10 A. Yes. 11 Q. I thought you said you weren't a clinical trial 12 specialist. 13 A. I'm not. I'm a clinical psychopharmacologist. 14 Q. I don't know how useful it is to go over all 15 this with you, Doctor, but were you shown Plaintiffs' Exhibit 16 63, when you were asked to render your expert opinion here? 17 A. Now, Bad Hamburg refers to the German? 18 Q. Yeah. This is the comment from the BGA on the 19 medical review of Prozac. Page 4, Plaintiffs' Exhibit 63, it 20 says, Point 2, "Considering the benefit and the risk, we think 21 this preparation totally -- 22 A. Sir, I'm lost again. Please show me where. 23 Q. Last page. Last page, Point 2. 24 A. All right, sir. I'm with you. 25 Q. You see there where it says, "Considering the 129 1 benefit and the risk, we think this preparation totally 2 unsuitable for the treatment of depression"? 3 A. Yeah. I see it says that; yes, sir. 4 Q. Were you aware that the BGA, in their review had 5 found that Prozac was totally unsuitable for the treatment of 6 depression? 7 A. I wasn't aware of that. Why did they approve 8 it? 9 Q. Well, they didn't approve it except with a 10 warning. 11 A. What warning? There's no warning. 12 Q. Yeah, there's a warning. It says if you give 13 Prozac in patients who are excitable or patients who are 14 suicidal risk, you better consider giving concomitant 15 tranquilizing medications. 16 A. If it were a warning, sir, it would say you do 17 give it, not consider it. 18 Q. It says risk patients, that -- 19 A. I didn't read it as a warning, sir. I disagree 20 with that. That's not a warning. Tell me where it says 21 Warning. I'm missing that. 22 Q. It says Risk Patients. If you saw something 23 that said Risk Patients, as a physician wouldn't you consider 24 that something that would be a warning to you in consideration 25 with giving that drug to that particular patient? 130 1 A. Not the way I read this. It says, "taking an 2 additional sedative may be necessary." That's not a mandatory 3 requirement. 4 Q. So you don't have any problem -- you wouldn't 5 see any problem with having that in the U. S. package insert? 6 A. I'm not going to speak for our FDA, sir. 7 Q. Thank goodness. 8 A. Thank goodness is right. Those people are more 9 expert than I. 10 Q. Do I understand your testimony here, sir, that 11 Joseph Wesbecker developed the specific intent to kill in 12 1983? 13 A. He did not have the specific intent at that 14 date. That's when he began to formulate the intent; yes, sir. 15 Q. And when did he come to get this specific intent 16 to kill? 17 A. I know when he had it; I can't tell you exactly 18 when before then he had it. He had it when he sat in Doctor 19 Coleman's office on September 11th, 1989. 20 Q. Is that the first time that you can pinpoint 21 that Joseph Wesbecker had the specific intent to kill? 22 A. No. No. You see, intent, sir, in forensic 23 psychiatry, you don't do things you don't think of. You don't 24 pull them out of -- let me finish my answer, please. You 25 don't do things you don't think of. And we know that Joseph 131 1 Wesbecker had been thinking of killing people at least since 2 1983. Well, you have to think of it first. When you begin to 3 think of it, then you begin to formulate intent. I know in 4 Doctor Coleman's office on the 11th, he had the intent to do 5 it, and that's why he was so upset and said all those crazy 6 things. The reason I know that is the same day he tells 7 James, "Don't worry, I've got the plan." The same day he saw 8 Doctor Wesbecker (sic) he did that. "I've got the plan, 9 James. Quit worrying about it. Everything's going to be 10 okay." And then he starts rolling on the plan. 11 Q. Are you saying that he was saying crazy things 12 in Doctor Coleman's office on September 11th? You said that's 13 why he said all those crazy things. 14 A. I think that's a distinct possibility, yes. And 15 Doctor Coleman said that himself here in front of the jury 16 that that was a possibility. 17 Q. You said you view his statements about this sex 18 incident as being a delusion? 19 A. You could take it that way. 20 Q. That's what you testified it is, haven't you? 21 A. In discovery. 22 Q. Yes. 23 A. I didn't have James's deposition and I didn't 24 have Doctor Coleman's testimony at trial in that discovery, 25 sir. What they said in front of the jury very clearly now 132 1 leads me to the conclusion that on the 11th of September, 2 1989, in the presence of Doctor Coleman, Joseph Wesbecker knew 3 he was going to kill those people at Standard Gravure. And he 4 was so upset having to sit in front of his psychiatrist and 5 think of that, it was all he could do to maintain his 6 composure. Then he gets all calm, the plan is in place. I 7 don't have to worry about this. He tells James about it. 8 Then the next thing it's the $70,000. The next thing he's 9 having a great time with Brenda. The next thing he's calling 10 people and trying to make amends. This man knew he was going 11 to do that. 12 Q. Let's go back and talk about September 11th in 13 Doctor Coleman's office. Okay? 14 A. All right. 15 Q. Now, he relates this incident of remembering and 16 Prozac causing him to remember this sexual incident at work; 17 right? 18 A. I recall it, yes. That's not what the original 19 note says. The original note says "Nervous." 20 Q. I know that. Answer my question, would you, 21 Doctor, please? 22 A. Which note are you talking about? 23 Q. I'm talking about the typewritten note, where it 24 says, "Remembers sexual incident at work." Right? 25 A. Yes. I remember that. 133 1 Q. When we took your deposition, you said that was 2 clearly a delusion, didn't you? 3 A. I did say that. 4 Q. And you said, "I don't see how Doctor Coleman 5 missed it as a delusion." Right? 6 A. I did say that. 7 Q. Now, just a few minutes ago you said he was 8 saying those crazy things in Doctor Coleman's office; right, 9 sir? 10 A. Yes. 11 Q. Now, is that what you're referring to in 12 delusions? 13 A. That's what I'm referring to. 14 Q. All right. Now, is it your opinion as you sit 15 here today that Joseph Wesbecker was experiencing a delusion 16 in Doctor Coleman's office on September 11th, 1989? 17 A. No. 18 Q. Again, what was that that he was expressing when 19 he said Prozac helped him remember that he had been required 20 to give oral sex to a supervisor in front of co-workers? What 21 was that? From a psychiatric -- give me the psychiatric 22 definition of that. 23 A. All right, sir. It was Joseph Wesbecker's 24 stress response of realizing what he was going to do, sitting 25 there in his psychiatrist's office. And it also would be 134 1 consistent, sir, with a man who wants to leave a trail in case 2 he needs an insanity defense. 3 Q. I thought you said that he had all this 4 ammunition and he wasn't going to come out of there. You're 5 not telling this jury that Joseph Wesbecker intended to come 6 out of Standard Gravure on September 14th, 1989, alive and 7 stand trial, are you? 8 A. I don't think he did, but that's a possibility. 9 Q. Okay. Now, let's get with one story. Okay? On 10 September 11th, 1989, when Mr. Wesbecker was in Doctor 11 Coleman's office and reported this fact that allegedly Prozac 12 had caused him to remember an incident where he was forced to 13 perform oral sex in front of his co-workers on his supervisor, 14 that what Mr. Wesbecker was really experiencing was a stress 15 response? 16 A. Probably so, sir. And the reason I say that, 17 you can't find a single instance, ever, back in all of the 18 records to 1972, that any person, in any deposition or summary 19 or whatever that I ever saw, ever once said that Joseph 20 Wesbecker had a delusion like that. Moreover, after he left 21 Doctor Coleman's office, he had intimate contact with Brenda; 22 he had intimate contact with James. We never heard anything 23 about that again. Now, if he was that crazy, sir, somebody 24 would have seen it. 25 Q. Well, haven't you testified he was delusional 135 1 when he was in the plant? 2 A. No. I think I said half delusional. That is 3 not a delusion. 4 Q. Okay. Half delusional. Not any of these people 5 here are half dead or half injured. 6 A. No. 7 Q. Angela Bowman isn't half crippled. What do you 8 mean half delusional? 9 A. You're either delusional or you're not. It's 10 like being pregnant. 11 Q. Okay. So how can you be half delusional? 12 A. Well, it was a term of art, sir. It wasn't -- 13 Q. How artful was that term? 14 A. Pretty poor. 15 Q. Beg your pardon? 16 A. I said pretty poor on my part. 17 Q. You said -- in your deposition you said he was 18 delusional when he was in Doctor Coleman's office on September 19 11th, and you said in your deposition he was half delusional 20 when he was in that plant -- 21 A. I did, Mr. Smith, but I -- 22 Q. Let me finish my question. 23 A. I'm sorry. 24 Q. -- shooting those people. That's the only time 25 you ever put any delusions on Joseph Wesbecker, isn't it? 136 1 A. That's correct. 2 Q. And both occasions he was under the influence of 3 Prozac, wasn't he? 4 A. Both occasions. 5 Q. On September 11th and September 14th, 1989. 6 A. No. I didn't say he was delusional September 7 14th. 8 Q. You said he was half delusional. 9 A. That's not delusional. Sir, what I meant, and 10 I said it inartfully and I apologize, in the throes of the 11 discovery deposition I did say he was half delusional. Let me 12 finish, sir. That is not a delusion. That is a man with a 13 paranoid personality who goes around spouting things off and 14 misperceives the intentions of others, and that's what I 15 meant. I said it very poorly. I'm sorry. 16 Q. You can't be half pregnant, but you can be half 17 delusional; is that your testimony? 18 A. No. My testimony is if I say a person is half 19 delusional, they can't be delusional. They either are or they 20 aren't. 21 Q. You have to set aside your bias and your 22 prejudice and be analytical and thorough to make sure you 23 hadn't missed something in coming up with the psychiatric 24 autopsy; correct, sir? 25 A. I have to try, to the best of my ability. 137 1 Q. I think you've testified, otherwise, you're not 2 a good forensic psychologist; is that right? 3 A. Say that again. 4 Q. I think you've testified in your deposition that 5 unless you're thorough and analytical and set aside your bias, 6 you're not making a good forensic evaluation; is that right, 7 sir? 8 A. That's correct. 9 Q. You said that on Page 67 and 68 of your 10 deposition. 11 A. Yes, sir. 12 Q. Do you stand by that? 13 A. Yes, sir. 14 Q. Now, in that connection, isn't it true, Doctor 15 Granacher, that you've been doing research on violence and 16 have been interested in violence for quite some time? 17 A. Yes, that is true, probably since about 1974. 18 Q. And you were doing research and were interested 19 in violence before Prozac ever even came on the market, 20 weren't you? 21 A. Personal research, sir. Let's make sure we 22 understand that. I am not a violence researcher and I don't 23 publish in the literature about violence and I don't work with 24 rats and cats and stuff. My own personal interest and 25 personal research, the answer is yes. 138 1 Q. You've lectured on violence. 2 A. I have. 3 Q. You've been doing your own personal research and 4 lecturing on violence since 1977? 5 A. Yes, sir. 6 Q. You continue to research violence in connection 7 with chemicals? 8 A. Yes. 9 Q. You've researched violence in biochemistry, the 10 biochemistry of drug-induced violence, haven't you? 11 A. I have looked into that; yes, sir. 12 Q. You ran across Prozac in your research on the 13 biochemistry of violence, didn't you, sir? 14 A. Fluoxetine; yes, sir. 15 Q. The biochemistry of violence is what this 16 lawsuit's about, isn't it, sir? 17 A. No. Unless you want to talk about Joseph 18 Wesbecker's brain biochemistry starting in the 1970s, it's 19 not. You asked me what it's about, it's about the mind of 20 Joseph Wesbecker. It's about his intent. You see, it's 21 because of all those studies, Mr. Smith, that I'm able to know 22 that this man intended to do this crime. It's because of my 23 4,000 depositions, it's because of years of experience in 24 forensic psychiatry that I can put all this together and see 25 that this man intended to do this. 139 1 Q. Let's talk about your specific research on the 2 biochemistry of violence. 3 A. All right. 4 Q. Drug-induced biochemistry of violence. 5 A. All right, sir. 6 Q. Because Joseph Wesbecker was under the influence 7 of Prozac at the time, wasn't he? 8 A. No question about that. He had Prozac in his 9 bloodstream. 10 Q. This research began back in 1977, didn't it? 11 A. My personal research; yes, sir. '74, actually. 12 Q. Let me finish. 13 A. '74. 14 Q. You ran across specific research, did the 15 specific research on serotonin-specific reuptake inhibitors 16 when they came on board in the 1980s; right? 17 A. Yes, sir. 18 Q. Of which Prozac is a class? 19 A. Yes, sir. Is a member of the class, yes. 20 Q. And you had this research collected? 21 A. No. 22 Q. You had it in your computer? 23 A. No. Only pieces. You've got a lot more in this 24 case than I had. You people have pulled out things that I 25 never saw. 140 1 Q. You've been doing this research, though, since 2 1974? 3 A. It was out there for anybody to do. 4 Q. You had the computer database on it, didn't you? 5 A. Yes, sir. You could do the same thing. Sure. 6 It's there. 7 Q. You chose to stop your research when you were 8 hired by Mr. Stopher in this case, didn't you? 9 A. I did. It was unethical for me to continue. 10 Q. This research does not now exist, does it? 11 A. Oh, yes, it does. 12 Q. It doesn't exist that you could produce it for 13 us, does it? 14 A. It would take me no more than two or three 15 hours. 16 Q. When Mr. Dobiesz was there, you told him that 17 the research doesn't exist, because he asked you for it. 18 A. I told him what I had produced didn't; that's 19 correct. 20 Q. All right. And that there is no research file 21 now, there is no database on the computer and that nothing has 22 been maintained? 23 A. That's correct. 24 Q. Since you stopped your research; right? 25 A. Yes. But as you'll recall at that deposition, I 141 1 redid it that morning and gave Mr. Dobiesz a search. He 2 attached it to my deposition. 3 Q. You said, "I knew you would ask me about it, so 4 I purged it." 5 A. I did say that. I knew Mr. Stopher would ask me 6 about it. 7 Q. Whenever you agreed to be an expert witness and 8 evaluate this case, you said you stopped and desisted from 9 this and wiped out the data, didn't you? 10 A. Wiped out the references. 11 Q. Isn't that what you said? 12 A. Yes, because I hadn't drawn any conclusions. 13 Q. You said most of the data was supportive of 14 Prozac but -- let me get you and read to you exactly what you 15 said. Turn to Page 77 of your deposition, the question 16 beginning on Page 9 (sic). Mr. Dobiesz asked you, "What would 17 have been contained in whatever database that you had on the 18 biochemistry of neuropharmacology of violence that would have 19 created any type of ethical or other kind of problem with 20 testifying in this case." Right, sir? 21 A. Nothing ethical about testifying. 22 Q. Is that what the question was? 23 A. Yes. 24 Q. Did I read that question correctly? 25 A. About testifying, sir. 142 1 Q. Huh? 2 A. The question was about testifying. 3 Q. The question was, "What would have been 4 contained in whatever database that you had on the 5 biochemistry of neuropharmacology on violence that would have 6 created any type of ethical or other kind of problem with 7 testifying in this case." Right? 8 A. That's right. 9 Q. Your answer was, "Well, nothing ethically. The 10 data was all supportive of Prozac, actually, or fluoxetine, 11 but there's no point in stringing things out. I've learned 12 from past experience that that just leads to trouble, and if I 13 had that for you today, it would clearly be trouble. You 14 would pounce on it -- on that like a cat on a mouse. So it's 15 just better to get rid of it, and then you don't have anything 16 to work with, and I don't, either." Isn't that what you said, 17 sir? 18 A. That's right. I started over. I said that. 19 Q. So you wiped it out because it would have been 20 trouble and we would have pounced on it like a cat on a mouse. 21 A. Well, it wouldn't have been trouble. It 22 would -- 23 Q. That's what you said. 24 A. Trouble for what? 25 Q. Trouble for you, trouble for Prozac, because it 143 1 causes violence, doesn't it? 2 A. No, sir. Not a single piece of literature shows 3 that. 4 Q. Well, your literature, your research showed it, 5 didn't it? 6 A. Mine didn't show it did; neither did anyone 7 else. In fact, sir, I couldn't find a single article that 8 supported that Prozac caused any kind of violence. It 9 suppresses violence. 10 Q. Turn to Page 71, question, Line 18: "All right. 11 So you had looked directly -- at Prozac directly prior to this 12 case?" 13 Your answer was, "No. No. Don't 14 mischaracterize what I'm saying. I've not done a direct look 15 at Prozac. It came up within the context of looking at 16 drug-induced violence models; amphetamines did, serotonin 17 reuptake inhibitors did, of which Prozac is in that class, 18 norepinephrine drugs did. It was not directed at Prozac. 19 Don't mischaracterize me and then try to whip that back out at 20 trial. That's not what I said." Right, sir? Is that your 21 answer? 22 A. Yeah. I stand by that. It did not come up. 23 All of those things came up. When I did the search they all 24 showed up. 25 Q. That amphetamines did induce violence, serotonin 144 1 reuptake inhibitors did induce violence? 2 A. No, Mr. Smith. No, Mr. Smith. Go back and read 3 the sentence. Please slow down. I had not done a direct look 4 at Prozac. It came up. But I'm talking about all those 5 issues came up, not that they caused violence. 6 Q. That's just what you said there. Go back to 7 Line 3 on that page: "All right. Well, sir, the basis of my 8 question is about your research into Prozac. All right? 9 "Answer: My research wasn't into Prozac. 10 Prozac was something I ran across researching drug-induced 11 violence. 12 "Question: I asked you whether or not you had 13 done any research on Prozac prior to the time you were 14 retained in this case, and you answered yes, you had run a 15 search -- 16 "Answer: Uh-huh. 17 "Question: -- which included Prozac. Did I 18 misunderstand that? 19 "Answer: No, you didn't misunderstand it. 20 "Question: All right. So you had looked at 21 Prozac directly prior to that? 22 "No. No. Don't mischaracterize what I'm 23 saying, sir. I had not done a direct look at Prozac. It came 24 up within the context of looking at drug-induced violence 25 models; amphetamines did, serotonin reuptake inhibitors did, 145 1 of which Prozac is in that class, norepinephrine drugs did. 2 It was not directed at Prozac. Don't mischaracterize me and 3 then try to whip that back out at trial. That's not what I 4 said." Right, sir? 5 A. Yes. You know why it came up? It came up 6 because it suppresses predatory violence. And when I did the 7 search on predatory violence, lo and behold, there came 8 Prozac. It's useful treatment for predatory violence. 9 Q. We're not through. 72, we're going to continue 10 reading, Line 6: "What was the purpose of the research that 11 you were doing? Was that to publish an article? 12 "Answer: Yes, on violence. 13 "Question: Who did you work with to do that 14 research? 15 "Answer: Nobody. 16 "Question. Okay. What initiated the research 17 into drug-induced violence on this particular search for this 18 particular article that we are talking about? 19 "Answer: What particular article? 20 "Question: That you were researching to 21 publish. 22 "Answer: Violence, sir. Human violence. 23 "Question. Would that have been -- 24 "Answer: The biochemistry of violence. 25 "Question. All right. So you were working on 146 1 research to possibly publish an article titled the 2 Biochemistry of -- 3 "Answer: I didn't say that was the title. I 4 didn't give it a title; it was never published. 5 "Question. So that was the topic? 6 "Answer: Yes, sir. 7 "Question: All right. And what -- would you 8 repeat again what the topic of your research was? 9 "Answer: The biochemistry and neuropharmacology 10 of violence. 11 "Question: Of neuropharmacology? 12 "Answer: Yes, sir, of violence. 13 "Question: Of violence? All right. When did 14 the research -- when did that research project for that 15 particular topic begin? 16 "Answer: In the 1980s, probably 1986, '87. 17 "Question: And that was something that you -- 18 "Answer: Actually, it goes all the way back to 19 when I was in Boston. I have some books that I got. I think 20 my first book in that area was probably 1977. 21 "Question. The biochemistry of 22 neuropharmacology of violence -- violence as it is related to 23 coming across information on Prozac or serotonin uptake 24 inhibitors, when did that take place? 25 "Answer: In the 1980s. 147 1 "Question: Did I understand you to say that you 2 had to stop your research? 3 "Answer. I didn't have to stop. I chose to 4 stop. 5 "Question: Let me do this. Let me finish my 6 question." 7 You said, "Answer: I'm sorry. 8 "Question: You can criticize it, comment on it, 9 throw it back at me any way you want, but let's make the 10 deposition where I ask the question, you wait until I'm done 11 and you can give your answer, and we've all put it on the 12 record. How about that? Did you not say that when you were 13 retained to get involved in this case, you ceased the research 14 that you were involved in at the time related to the 15 biochemistry and neuropharmacology of violence? 16 "Answer: I did. Do you characterize that is I 17 had to stop? 18 "Question: I understand you to say that 19 ethically it wouldn't have been appropriate for you. 20 "Answer: Absolutely not. 21 "Question: All right. So I assume, and I'm 22 making an assumption, that you act ethically and that's why 23 you would have stopped? 24 "Answer: I try to act ethically. I don't walk 25 on water. I probably have lapses like anybody else. 148 1 "Question: All right. And I'm giving you the 2 benefit of the doubt. On this particular research that was 3 done as it relates to Prozac, was any working document ever 4 produced? Was any hard copy kept on that? 5 "Answer: No." 6 MR. STOPHER: Your Honor, may we approach the 7 bench? Let's approach the bench. 8 (BENCH DISCUSSION) 9 MR. STOPHER: Your Honor, we've now been over 10 about eight pages of this deposition. Some parts of it have 11 been read twice. I think the point's gotten across. 12 MR. SMITH: It's to impeach him further. 13 MR. STOPHER: It's not impeaching him at all. I 14 think just reading this deposition wholesale -- 15 MR. SMITH: I've got two pages left. 16 MR. STOPHER: We've read eight. 17 JUDGE POTTER: Mr. Smith, I take it your 18 position is his deposition is contrary to what he's saying 19 today? 20 MR. STOPHER: We've been over and over and over 21 it, Judge. 22 JUDGE POTTER: What is he saying today? 23 MR. SMITH: He's saying I stopped but then I 24 started back again. He said I stopped because of problems. 25 JUDGE POTTER: Finish the two pages. 149 1 (BENCH DISCUSSION CONCLUDED) 2 Q. Question beginning at Line 18: "It's not as we 3 sit here today, it doesn't exist anymore? 4 "Answer: No. It's not something that I would 5 be able to rapidly whip together and publish after this trial. 6 "Question. Whether or not you'll publish it, 7 I'm asking you, sir. 8 "Answer: The answer is no. 9 "Question: Let me finish my question. Are you 10 saying that all of the research that you've done, which 11 started at least in the 1980s, that you were working on up 12 until the time that you were contacted by the attorneys for 13 Lilly, that there's no research file, no database on computer, 14 nothing that has been maintained about that? 15 "Answer: No, because I knew you would ask me 16 about it, so I purged it. 17 "Question: Okay. When did you purge that, sir? 18 "Answer: Probably 19 -- whenever I got into 19 this case. 20 "Question: So you were not able to give an 21 exact date, but going by what you said, roughly in September 22 of 1993, sometime after that point? 23 "Answer: After whenever -- it may have been 24 before September 1993. Whenever I agreed to be an expert 25 witness and evaluate the Wesbecker case, I stopped and 150 1 desisted from then on and wiped out the data. 2 "Question: Why would it have been or why did 3 you make a determination, sir, that the data that you had 4 accumulated would need to be purged because you were becoming 5 involved in this case? 6 "Answer: The same way I don't speak publicly 7 about the case when asked repeatedly on TV and radio. It's 8 not ethical. It's not consistent with good principles of 9 jurisprudence. 10 "Question: What would have been contained in 11 whatever database that you had on the biochemistry of 12 neuropharmacology of violence that would create -- have 13 created any type of ethical or other kind of problem with 14 testifying in this case? 15 "Answer: Well, nothing ethically. The data was 16 all supportive of Prozac, actually, for fluoxetine, but there 17 was just no point in stringing things out. I've learned from 18 past experience that that just leads to trouble. And if I had 19 that for you today, it would clearly be trouble. You would 20 just pounce on that like a cat on a mouse. So it's better to 21 just get rid of it, and then you don't have anything to work 22 with, and I don't, either." Is that what you testified to, 23 Doctor? 24 A. Yes, sir. 25 Q. That's all the questions I've got of you, sir. 151 1 JUDGE POTTER: Mr. Stopher? 2 MR. STOPHER: Your Honor, may we take a short 3 break? 4 JUDGE POTTER: We'll take the afternoon recess. 5 Ladies and gentlemen, as I've mentioned to 6 you-all before, do not permit anybody to talk to or 7 communicate with you on any topic connected with this trial. 8 Do not discuss it or form or express any opinions about it. 9 We'll stand in recess for 15 minutes. 10 (RECESS) 11 SHERIFF CECIL: The jury is entering. All 12 jurors are present. Court is back in session. 13 JUDGE POTTER: Please be seated. Doctor, I'll 14 remind you you're still under oath. 15 Mr. Stopher. You may want to wait for it to 16 quiet down. 17 MR. STOPHER: That's all right. Nothing further 18 of this witness, Your Honor, and that is the case for the 19 Defendant, Eli Lilly and Company. 20 MR. SMITH: I have one other question that I'd 21 like to ask, Your Honor. 22 MR. STOPHER: Well, we object, Your Honor. 23 (BENCH DISCUSSION) 24 JUDGE POTTER: What is it, Mr. Smith? 25 MR. SMITH: He said that the death of the 152 1 grandmother was the triggering event or one of the last 2 factors that caused the agitation that he saw that caused him 3 to get Prozac and that he wouldn't do this while his 4 grandmother was still alive. She had organic brain damage and 5 had organic brain damage for two years, and I want to ask him 6 if he knew that. 7 JUDGE POTTER: Okay. I'm going to sustain the 8 objection. We've come to the end. That's not significant 9 enough to open it again. 10 (BENCH DISCUSSION CONCLUDED) 11 JUDGE POTTER: Ladies and gentlemen -- I take it 12 you have some rebuttal evidence, Mr. Smith. I mean, maybe not 13 today, but you're planning some rebuttal evidence? 14 MR. SMITH: Yes, Your Honor. A little bit. 15 Very briefly. Very briefly. 16 JUDGE POTTER: Ladies and gentlemen, what I'm 17 going to do is -- what this means is -- I think I went over 18 this in the beginning, is one side puts on -- the Plaintiffs 19 put on -- they can call any witnesses they want to call, and 20 then the Defendant calls any witnesses it wants to call. And 21 I cautioned you that some of the witnesses the Plaintiff 22 called, the Defendant would have called anyway, and the 23 Plaintiff may have waited till the Defendant's part of the 24 case to put in some evidence through witnesses that it knew 25 the Defendant was going to call. Okay? So it's not one side 153 1 and then the other side; it's people getting a chance to call 2 people. 3 Now it goes back to Mr. Smith, and if there's 4 any additional witnesses he wants to call on something that 5 was brought up during the witnesses that Mr. Stopher called, 6 he'll get an opportunity. It's called rebuttal evidence. 7 Mr. Smith has told me ahead of time it will be not long. 8 So rather than start with an hour and a half, 9 I'm going to take this break, take the evening recess. I 10 think the current plan is that the case will probably be 11 submitted to you maybe on Friday. Okay? Mr. Smith's evidence 12 might take longer than two days, but it might be done in two 13 days and the case argued to you on Friday. It may not be till 14 next Monday, but you can definitely see the end of the 15 evidence and the argument part of it. 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 on this topic or any topic connected with 19 this case. And, again, I emphasize that includes people 20 trying to communicate with you inadvertently by publishing 21 something in the newspaper or on the radio or in a magazine or 22 something like that and giving it to you or you picking it up. 23 Don't discuss it among yourselves and do not form or express 24 opinions about it. We'll stand in recess till 9:00 tomorrow 25 morning. 154 1 (JURORS EXCUSED; HEARING IN CHAMBERS) 2 JUDGE POTTER: Let me... I have thought about 3 this morning's proceedings, and what I'm going to do is have 4 the Court Reporter not transcribe the testimony of 5 Mr. Stanford. It's clear enough to where your Ms. Tilton 6 knows exactly what he said; it's not going to do her any good 7 to have a transcript. And that way we don't have a transcript 8 floating around forever and a day. It's there if anybody 9 needs it for an appellate thing. Have her go ahead and make 10 up her list of questions, but does anybody have any real 11 objection to not having that testimony transcribed? I mean, 12 she was here, she understood it. 13 MR. SMITH: I wouldn't have any problem at all, 14 Your Honor, unless she came back and said, "I was unclear on a 15 certain point." I certainly would accommodate Lilly on that 16 and, you know, subject to her coming back to me saying -- 17 JUDGE POTTER: Well, subject to you telling me 18 you want it transcribed, let's not transcribe it at this 19 point. If it becomes an issue at some point that she isn't 20 clear on... 21 All right. Let's turn to the matter at hand. 22 As I understand it, the only -- there are two things 23 outstanding at the current time, one is some objections to a 24 deposition that were taken in Georgia. 25 MR. MYERS: Yes, sir. 155 1 JUDGE POTTER: And we'll put that off until 7:30 2 tomorrow morning. 3 MS. ZETTLER: Judge, we'll agree to put in that 4 stuff. I was teasing you this afternoon. 5 JUDGE POTTER: All right. So we don't have that 6 in the fire. What we've got is a motion in limine -- or, 7 cross motions in limine that the Plaintiff either be allowed 8 to put into evidence or not put into evidence all or part of 9 certain exhibits or examine a witness from Lilly about these 10 things. The first one is a report done by Congress in 1983; 11 the second is a plea agreement by Lilly; next is a judgment 12 against Lilly; then there is an indictment or an information, 13 rather, to go with the charges against Lilly; then there's a 14 document called Factual Basis for the Pleas, plural, which 15 leads -- goes to Lilly and Mr. Shedden. And they have the 16 same plea agreement, judgment, indictment as Mr. Shedden's. 17 And then there's something called a motion or Government's 18 Response to a Motion to Amend the Judgment. All right. And 19 then there's another batch of things that have to do with the 20 talk paper. 21 All right. So, basically, as I see it, you have 22 four things: One is the Congressional report, one is a group 23 of papers dealing with Lilly and a conviction, one is a group 24 of papers dealing with Shedden and a conviction, and then one 25 is the 1994 FDA talk paper. Who wants to go first and say... 156 1 MS. ZETTLER: I suppose it's my motion. 2 JUDGE POTTER: Well, it's really cross motions. 3 Ms. Zettler, in your thing you say following are some 4 examples. Is this all there is or are there others? 5 MS. ZETTLER: I believe there are others. I 6 know Doctor Tollefson. Well, other than Doctor Granacher's 7 testimony today, Judge, Doctor Tollefson I believe in his 8 testimony says -- 9 JUDGE POTTER: But this is all -- you ran the 10 word search on Leigh Thompson and Fuller and Wernicke? 11 MS. ZETTLER: Yeah. I did as many as I could 12 think of. And what I had to do was instead of reading all the 13 way through it is come up with the searches from the ones I 14 remembered, you know, from my notes and things. 15 JUDGE POTTER: Okay. 16 MS. ZETTLER: Doctor Tollefson also said 17 something to the effect of he has no reason to doubt the 18 integrity of the Lilly researchers. 19 JUDGE POTTER: You don't mean Tollefson, you 20 mean Granacher? 21 MS. ZETTLER: No, Tollefson. And Granacher 22 today was talking about the FDA is top notch, et cetera, 23 et cetera. 24 JUDGE POTTER: I don't know if he went that far, 25 but... Okay. What is your analysis of why you ought to be 157 1 able to put this in? 2 MS. ZETTLER: Well, for two reasons, Judge. 3 One, clearly, Lilly has opened the door for this evidence. 4 Its purpose is to rebut their constant, with just about every 5 witness they've put on who's not a layperson, injection of 6 testimony as to Lilly's glowing reputation within the 7 scientific community as well as with the FDA; such things as 8 Doctor Tollefson saying that the FDA says they have the most 9 sensitive and elegant system of collecting adverse events; 10 they continue to report adverse events of the drug the way the 11 FDA asks. They've injected not only testimony regarding 12 Prozac but also other drugs, some at the direct questioning of 13 Mr. McGoldrick and Mr. Freeman, some of it being injected 14 during cross-examination. 15 The other purpose for the Oraflex evidence in 16 particular -- actually, both the Oraflex and the FIAU 17 evidence, is that it demonstrates that the FDA is not the 18 be-all and end-all of determining a drug's safety and 19 efficacy. In both occasions, the regulations were enacted or 20 proposed to tighten up the reporting requirements, and the 21 requirements made of the FDA to review the data that's 22 submitted to the FDA, both because of deficiencies in the 23 FDA's being able to ferret out problems with these drugs 24 because of problems in the FDA itself and also because of 25 problems in the reporting made by the sponsor of the drug, in 158 1 both cases, Lilly. 2 So I think it's relevant to rebut two lines of 3 evidence that Lilly has injected into this case. Their major 4 defense in this case is that the FDA approved this drug. Both 5 of these pieces of information and all of these documents 6 refute the fact that the FDA is not the final arbiter of 7 safety and efficacy of drugs here in the United States. 8 As far as the talk paper is concerned and the 9 FIAU, Lilly's introduced their own talk papers regarding the 10 FDA's pronouncements on the safety and efficacy of Prozac. 11 JUDGE POTTER: Tell me what you think the talk 12 paper says. 13 MS. ZETTLER: Which one, the one attached? 14 JUDGE POTTER: The one that you want to get into 15 evidence. October 27th, 1994. 16 MS. ZETTLER: Okay. Right. Judge, this is a 17 talk paper that was, as you say, dated October 27th, 1994. 18 It's regarding suggested or proposed regulation changes to 19 tighten up the reporting and the review of data by the FDA on 20 safety of drugs in general and in some medical devices 21 prompted by five deaths during clinical trials of a drug named 22 fialuridine, or FIAU, which is a drug that is, we believe, 23 Lilly's drug which they intend to manufacture or intended to 24 manufacture for the treatment of hepatitis B. As you can see 25 from the talk paper at Page 2, the FDA is proposing changes 159 1 pertaining to products undergoing clinical trials, including 2 requiring the sponsors to develop and provide to the FDA 3 written description of a specific safety monitoring. 4 JUDGE POTTER: Is there any change in here that 5 in any way you think would have impacted the reporting here, 6 if followed honestly? 7 MS. ZETTLER: Sure. It reenforces and actually 8 makes stricter requirements of -- 9 JUDGE POTTER: What page? 10 MS. ZETTLER: Let's see. Hold on. 11 JUDGE POTTER: They're in the upper right-hand 12 corner, the page numbers are. 13 MS. ZETTLER: Right. I'm trying to find the 14 specific one. 15 JUDGE POTTER: You don't suppose T94-50 means 16 they put out 50 of these things a year, do you? 17 MS. ZETTLER: Could be. On Page 2, the second 18 bullet point down, "Investigators and sponsors would be 19 required to evaluate each adverse event to establish as 20 clearly as possible whether the event was attributable to the 21 product under trial or to other causes." Lilly's consistently 22 injected evidence in this case that the FDA has not required 23 them to make a causal connection. We've seen, with the 24 document we're commonly referring to as the fuzzy memo, that 25 Lilly's own employees have on some occasions found that 160 1 instances of suicide and violent-aggressive behavior have been 2 reasonably causally related to the drug. We believe that that 3 was not reported to the FDA by virtue of the fact that the FDA 4 didn't specifically require them to go through that motion 5 like they're proposing to do now. They're going to ask them 6 to submit reports, the next bullet point, more frequently than 7 annual reports under the INDs. 8 JUDGE POTTER: Okay. Mr. Stopher, let's look at 9 the talk paper. Assuming that if I were going to let it in I 10 were going to have them black out the reason for it, okay, 11 black out "the proposed rule stems in part from," blank, you 12 know, take out that part, why is this objectionable? It's 13 just his way of showing that the FDA's system is a system in 14 progress, that it's evolving and it could be improved. I 15 mean, it's no different than what was the advertisement he put 16 in today that says do we know everything about a drug once it 17 goes on the market; no, call First Alert or whatever that 18 thing is. 19 MR. STOPHER: Well, several points I'd like to 20 make, Judge. One is that these have not been adopted. These 21 are not the rules of the FDA. The rules have not been 22 changed. The issue in this case is, did we follow the rules 23 that were in effect. 24 JUDGE POTTER: No. No. That isn't the issue in 25 this case. 161 1 MR. STOPHER: It isn't? 2 JUDGE POTTER: My tendered instructions don't 3 show anything that says did Lilly follow the rules. That may 4 be part of the proof in your case but that's not the issue in 5 the case. The issue in the case is, is Prozac dangerous or 6 defective, unreasonably dangerous. And so part of your way of 7 proving that is to say we followed the rules and came up with 8 this result. Go ahead. I didn't mean to -- I don't think you 9 really meant to say that. 10 MR. STOPHER: My problem with introducing this 11 is that, Number One, it's never been adopted. This is not the 12 set of rules of the FDA; clearly, it was not the set of rules 13 during the time that we did the reporting that's at issue in 14 this case. If I understand this correctly, Judge, this would 15 require a different sort of a reporting procedure. And if we 16 had followed this reporting procedure, we may well have been 17 in violation of the other reporting procedure. The other 18 reporting procedure was to submit every adverse event, whether 19 it was causally related or not. And if we had made a causally 20 related determination and had submitted only those that we 21 thought were causally related, we would arguably be in 22 violation of the old rules. So to introduce this would put us 23 in a Catch-22 situation. It would require us, I suppose, by 24 argument to follow a set of rules that didn't exist and that 25 have not been adopted and, at the same time, if we followed 162 1 those, to be at risk of violating the rules that were in 2 effect. 3 So, I've never been in a case, Your Honor, in 4 which it has ever been introduced into evidence that an agency 5 was thinking about changing its rules. And that's what this 6 amounts to, and I don't believe that's relevant or material. 7 It may well be that the FDA in fact considers this and 8 declines to change it. And to allow it in is to seriously 9 cloud the issue that what the rules were at the time that this 10 was done is pretty clear and what they weren't is pretty 11 clear, and each side can make his arguments. 12 MS. ZETTLER: Can I point out a couple things 13 here, Judge? 14 JUDGE POTTER: Uh-huh. 15 MS. ZETTLER: First of all, if you look at the 16 last page of the talk paper it says, "The FDA Center for 17 Biologics Evaluation and Research will publish a guidance 18 document" -- 19 JUDGE POTTER: You've got a different last page 20 than I do, and maybe mine fell off. It's fat with weak 21 staples. 22 MS. ZETTLER: If you look at that there, it 23 says, "The FDA Center for Biologics Evaluation and Research 24 has published a guidance document for industry on meeting 25 requirements of the new rule." What they're doing here is 163 1 saying these are the rules that we propose and these are the 2 rules that we are going to enact. They believe that they have 3 to give people a chance to maybe make suggestions as to 4 differences in the rules, et cetera, et cetera, but without 5 any differences in the rules suggested or any consideration of 6 those differences, these are the rules that were going to be 7 enacted. I think they're required under some sort of 8 regulation that they give everybody notice of this for a 9 90-day period or something. 10 As far as the requirement that Mr. Stopher was 11 talking about a causal connection, nowhere in here does it say 12 that if a causal connection is not determined they don't have 13 to report the adverse event. They're just saying they have to 14 go through the motions at this point to determine whether or 15 not an adverse event is causally connected to the use of the 16 drug on all adverse events. It doesn't say they only have to 17 report the ones that are determined to be causally connected. 18 JUDGE POTTER: Well, as I see this, it would 19 have very minor probative value. It would be just like a 20 statement that, yes, the system can be improved and we try and 21 improve it when we think of a better way to do it. And I 22 think it's going to cause a lot of confusion with the jury 23 about what these rules mean, what they would have affected, 24 what they would have required. And so I'm going to not -- I 25 guess, reaffirm my ruling that the Plaintiffs cannot introduce 164 1 the 1994 talk paper on changing the rules, T94-50. What it 2 says is unclear. It just seems to be an evolving way to make 3 the rules better, and so I think it will create more confusion 4 than it would help the jury. 5 Now, as to the two plea agreements, let's talk 6 about them together, and then if Mr. Stopher doesn't convince 7 me they both go out, we can talk about them separately because 8 there may be some differences in the two of them. 9 Mr. Stopher, she's laid out in her brief pretty 10 clearly what she says, and probably if they made a motion in 11 limine in the very beginning that no witness for Lilly be 12 allowed to express an opinion as to the efficacy of the Lilly 13 system, I probably would have sustained that, but they didn't. 14 And an awful lot of testimony has come in that says this 15 system is crackerjack. Shouldn't they be allowed to introduce 16 evidence that at least the system is capable of failing? 17 MR. STOPHER: Well, first of all, Judge, let me 18 try to deal with this in a way that at least I understand. 19 They began by attacking the reporting and trial procedures -- 20 maybe I've got that stated the wrong way, the trial and 21 reporting procedures of Lilly. And in a few isolated 22 incidents here -- instances here over the course of a 23 nine-week trial, the sum total of that evidence amounts to 24 less than 25 lines in response or in rebuttal, most of which 25 was just kind of gratuitous-type statements on the part of a 165 1 witness. And then what they want to do now is to introduce 2 evidence of a -- for impeachment purposes, both as to the 3 corporation and as to an individual, the individual being 4 Doctor Shedden, who was not involved here, has not testified 5 here, and I cannot imagine that impeaching Doctor Shedden is 6 relevant or material. 7 But suffice it to say, Judge, that I think that 8 the answer to this -- these plea agreements is clearly 9 contained in the Kentucky Rules of Evidence, specifically Rule 10 609. And Rule 609 -- 11 JUDGE POTTER: Where are we reading, what page? 12 MR. STOPHER: Page 20, Judge, of our brief. 13 Rule 609 clearly says, "For the purposes of reflecting upon 14 the credibility of a witness, evidence that the witness has 15 been convicted of a crime shall be admitted if elicited from 16 the witness or established by public record if denied by the 17 witness, but only if the crime was punishable by death or 18 imprisonment for one year or more under the law which the 19 witness -- under which the witness was convicted." 20 JUDGE POTTER: I agree with you on that. I 21 don't think she's going to try and cite 609 because we haven't 22 got a witness. 23 MR. STOPHER: To me, Your Honor, I went back and 24 researched the history of this rule, which is probably much 25 more familiar to you than it is to any of the rest of us in 166 1 the room. But this rule has been in force and in effect in 2 Kentucky long before the adoption of the Rules of Evidence. 3 And specifically, Judge, I know that maybe you're familiar 4 with these cases, but I would like to mention for this record, 5 particularly, there's a long line of cases going back in 6 criminal cases, but there's one in particular that is a civil 7 case, Your Honor. It was a false arrest case. It's Daugherty 8 versus Kuhn's Big K Store. And it's a 663 Southwestern 2nd 9 748. This is a 1983 case. And in this case, the defendant -- 10 JUDGE POTTER: Let me read it and then I'll give 11 it to her. 12 MR. STOPHER: Sure. Could I just cite this one 13 little quote and then I'll hand it over to you? 14 JUDGE POTTER: Oh, yeah. Sure. 15 MR. STOPHER: Just let me get this in the record 16 before I give it to you. The plaintiff in this case, Judge, 17 was alleging that she had been improperly arrested and 18 imprisoned, and the defendant retailer wanted to introduce 19 evidence of a customer's prior guilty plea to a misdemeanor. 20 The Court said, and this is the Court of Appeals of Kentucky 21 in 1983, the only issue here -- this is on Page 749. "The 22 only issue here is whether the trial court erred by allowing 23 the appellees to introduce evidence of the appellant's prior 24 guilty plea to a misdemeanor." And then they go on to say, 25 "It is our opinion that, standing alone, the clerk's testimony 167 1 of the appellant's prior guilty plea had no probative value on 2 the issue of mitigation of damages. Under the well-settled 3 case law of this state, it could not properly have been 4 admitted for any other reason." 5 Now, this case, Your Honor, is preceded by a 6 long line of criminal cases. And I recognize that this is not 7 a criminal case, but I believe that the law which has been 8 applied in criminal cases going back all the way to 1927, has 9 been adopted in civil cases. 10 JUDGE POTTER: Uh-huh. 11 MR. STOPHER: And this case is a civil case in 12 which it was adopted, and let me hand this over to you. 13 JUDGE POTTER: I agree with you that if Mr. 14 Shedden had taken -- actually, I'm not sure I do. Because 15 when I read the new rule it says a year or more. It used to 16 be it had to be a felony, and I'm sure that's what they still 17 mean. 18 MR. STOPHER: I think so, too, Judge. 19 JUDGE POTTER: But, you know, you read the plea 20 agreement and it says the maximum sentence is a year. But, 21 anyway, I agree with you that if Mr. Shedden had taken the 22 stand and was testifying about -- in an automobile accident or 23 something, you couldn't say, "Mr. Shedden, isn't it true that 24 you've been convicted of" -- crime doesn't even have a name; 25 it's just a violation of some statute, because it's not a 168 1 felony, and I agree with that. 2 MR. STOPHER: And accordingly, Judge, the high 3 prejudicial value to us in introducing this material is 4 extraordinary. To introduce this in this trial in violation 5 of what I consider to be the long line of cases on this, the 6 rule itself, and in light of the fact that the judge who 7 accepted these pleas said, "I am satisfied that these things 8 were totally and completely inadvertent but, nevertheless, a 9 violation of the regulations," and then fined both the 10 Defendant Lilly and the Defendant Shedden -- I believe the 11 total, Judge, was $25,000 each, with no imprisonment. The 12 rule specifically says, "Imprisonment for one year or more 13 under the law under which the witness was convicted." 14 Now, I don't want to get tangled up in the 15 implications of a nolo contendre plea, but the fact of the 16 matter is, Your Honor, that these are not felony convictions, 17 these are not convictions of one year or more, and to 18 introduce this now at this stage of this trial is highly 19 prejudicial to us. I don't need to explain the prejudicial 20 value of it; that's why they want it in and that's why we 21 think it should not be in. 22 And I must confess to Your Honor that if this is 23 allowed in, we have no choice but to move for a mistrial of 24 the case. We think the prejudice to us from this is 25 extraordinary and should be kept out under both the law, under 169 1 the case law and, more particularly, under this rule because 2 it simply does not meet the criteria. Now, there are a lot of 3 other reasons, Judge, that we've argued in this brief. I know 4 you've read the brief, and I indicated to you -- 5 JUDGE POTTER: And there are some reasons that 6 may apply to Mr. Shedden that don't apply to Lilly and that. 7 MR. STOPHER: But basically, Judge, I'm not 8 going to reiterate all that. You can read faster than I can 9 talk and probably recall it a lot better. There are many 10 reasons in here and many items cited. But the fact of the 11 matter is, Judge, that these are not felony convictions; the 12 rule doesn't permit it; the case law doesn't permit it; and, 13 accordingly, we renew our motion and ask the Court to render 14 the same ruling that it rendered before the trial started. 15 A lot of things have come in in this trial. 16 There are lots of facts for these jurors to deal with. But 17 putting this in in the last day or two, -- and I would suspect 18 it would be introduced as the last item on rebuttal -- we 19 would want to then, if the trial does continue, we'd have to 20 move for an opportunity to put in surrebuttal and to bring in 21 witnesses to prove that these violations are totally 22 unrelated. And the prejudice of having to go through all of 23 that is obvious to everybody. 24 But simply stated, Judge, the law in Kentucky 25 just does not permit it, and I think it is a high-risk item. 170 1 The prejudice, the violation of the law, to spoil -- clearly 2 spoil this broth with the introduction of this at this time, 3 we strenuously object to. 4 JUDGE POTTER: All right. Ms. Zettler, in going 5 through their brief, I marked something on Page 24, and I 6 marked it "Lilly's best point." And it says, "The evidence 7 proffered by Lilly regarding adverse-events reporting for 8 Prozac has been limited in duration and scope, especially when 9 viewed in the context of the entirety of the trial." You've 10 given some nice quotes, but, really, don't we get down to 12 11 lines or 25 lines of evidence or whatever it counts out to be? 12 MS. ZETTLER: Well, Judge, the evidence that we 13 have that shows that Lilly does not -- did not and does not in 14 fact comply with the FDA regulations, and the FDA is not in 15 fact all that great at monitoring the safety and efficacy of a 16 drug is no more prejudicial to the Defendant as their constant 17 injection of this glowing adulation of Lilly and Lilly's 18 reputation with the FDA is prejudicial to the Plaintiffs, much 19 of which we objected to at the time that it was being asked or 20 injected. 21 It doesn't matter if it's one line or twelve 22 lines. Obviously, at various times throughout this case we 23 have approached Your Honor about raising this issue with 24 various Lilly witnesses, and it was like a matter of -- and 25 even at that point, when they knew that we had this and that 171 1 we wanted to use it to rebut the kind of testimony they were 2 putting into the record, they continued to do it, to the point 3 where we believe Your Honor was convinced that they had opened 4 that door completely wide open for us to get this stuff in. 5 If it's prejudicial for us to put this in, it's 6 prejudicial for them to say things like Doctor Thompson 7 saying, "The FDA says we, as Lilly, have the most sensitive 8 and elegant system of collecting adverse events." You know, 9 the FDA says we have the best this; the FDA says we do this 10 the best. I mean, constantly with every Lilly witness and 11 every expert they've gotten out some sort of gratuitous 12 evidence that this company is the best in the business; it's 13 got the best researchers; it's got the best this, the most 14 ethical, the most upstanding, the world-class type of people, 15 over and over and over again. 16 You know, 25 times is about once -- at least 17 once every witness that they've put on in support of this 18 drug. We believe that we have the right at this point to 19 rebut that evidence with direct evidence that they are not, in 20 fact, holier than thou or, you know, with getting things 21 reported and complying with FDA regulations. A lot of this 22 stuff with Oraflex is the exact type of thing that happened in 23 this case; that they had things from outside the United States 24 that they just simply did not report to the FDA until they 25 were caught. And as far as -- as far as the using this to 172 1 impeach a witness as far as the conviction goes, this is 2 evidence that's being offered to rebut, not impeach somebody 3 on the stand, so I don't think the rule applies. 4 JUDGE POTTER: I think 609 -- if it comes in, it 5 won't come in because of 609. 6 Mr. Stopher, I mean, everything you say is true, 7 but when a person gets on the stand and says, "I've never run 8 a red light; I've never had a traffic ticket; I'm the world's 9 safest driver," probably shouldn't have said it. But once 10 they get up there and say it, can't people say, "Isn't it 11 true, ma'am, that you've been arrested for drunken driving or 12 you've got a speeding ticket," or whatever it happens to be? 13 MR. STOPHER: No, sir. I think you probably 14 know the answer to that better than I do. The answer to that 15 is that if that person was not convicted of a felony, that 16 that information does not come in. I have attempted on other 17 occasions and I'm sure the Court has been on both sides of 18 this issue but -- 19 JUDGE POTTER: Put aside the fact that it's a 20 crime. Let's say a person takes the stand and says, you know, 21 "I'm a careful driver. I've never been involved in an 22 accident." Couldn't you call a policeman to say, "Well, I 23 investigated this accident and the person had an accident"? 24 MR. STOPHER: Well, Your Honor, the answer to 25 that is, as you well know, no. The whole purpose of 173 1 introducing or excluding that kind of testimony is that 2 unrelated events with other items is not competent evidence to 3 predict or for the jury to consider in considering other 4 conduct. I'm sure the Court remembers the Massey versus 5 Salmon case, which we quoted and cited in here rather 6 extensively. It's most notably, Your Honor, on Page 14. And 7 the case specifically says that evidence of a landowner who 8 allowed a calf out onto the highway on another occasion was 9 not admissible in a situation in which a different calf was 10 loosed by the same landowner. 11 JUDGE POTTER: What happens if the landowner 12 takes the stand and says, "It's impossible for my calf -- I've 13 built a fence there, and it's impossible for calves to get 14 out"? Couldn't we show that at least on one prior occasion a 15 cow got out? 16 MR. STOPHER: Well, Your Honor, first of all, 17 you've got to bear in mind that, in this case, what they want 18 to put in is a plea agreement, a criminal plea agreement that 19 does not come in as a felony, and there's no way to call it a 20 felony or dress it up some other way. In this case, Your 21 Honor, of the calf, we don't even have a criminal conviction 22 of any sort. And what the Court has consistently done -- and 23 this is a decision that's been on the books a long, long time 24 that's been argued in every case that I've been involved in 25 where somebody tries to get in prior acts. Under this case, 174 1 that kind of conduct does not come in. What the courts -- the 2 appellate court in Kentucky has always said is introduce 3 evidence of this occasion. But the fact, Your Honor, that I 4 may have run a red light on another occasion is not 5 admissible; it never has been. 6 JUDGE POTTER: That's right. 7 MR. STOPHER: And in this case, it's prohibited 8 for two reasons: Number One, it's a different drug under a 9 different set of rules of reporting at that time than existed 10 in connection with Prozac; Number Two, it's not a felony 11 conviction, and that's what they want to introduce. 12 JUDGE POTTER: Put aside the felony conviction 13 and put aside the fact that it's criminal. Apparently in 14 1983, the chairman of the board had some kind of report that 15 their system was inadequate to ensure that all reports of 16 adverse reaction received prior to U. S. approval were 17 forwarded to Indianapolis. I mean, I'm assuming that because 18 apparently he wrote some stockholder that. Suppose that had 19 been 1988, he had written that letter. Could they bring that 20 letter in to show that your chairman of the board comes to the 21 conclusion that the system is inadequate to ensure that all 22 reports of adverse reactions received abroad prior to U. S. 23 approval were forwarded to Indianapolis and submitted to the 24 FDA? I'm looking at Page 14 of the indictment or the -- 25 whatever it is. I guess it's the factual statement. 175 1 MR. STOPHER: Which page are you on? 2 JUDGE POTTER: You know that factual statement? 3 MR. STOPHER: What's it attached to? 4 JUDGE POTTER: It's attached to their motion -- 5 MS. ZETTLER: It's the factual basis for the 6 plea. 7 JUDGE POTTER: It's part of the factual basis 8 for the pleas, plural. 9 MR. STOPHER: Judge, I'm looking at Page 14. 10 One of the problems that I have in answering your hypothetical 11 question is that I can't remake in my mind the facts of this 12 case and what they want to introduce. The subject on the 13 table, as I understand it right now, is the plea agreements 14 and whether or not those plea agreements should come in. I 15 take the position, as we have in our brief, that that 16 information should be excluded, Number One, because it is not 17 a conviction of a felony. Number Two, Your Honor, I think the 18 law in Kentucky is clear that prior acts in a negligence case, 19 which is what we are dealing with here; this is basically a 20 product liability case, prior acts are not admissible. And I 21 cite to you again the Massey versus Salmon case, which is 22 still the law. Now, to respond to hypothetical issues, what 23 if it was a different year instead of 1983 and was '88, I 24 don't know. 25 JUDGE POTTER: Well, put the criminal part 176 1 aside. Suppose they had a bullet proof, small proof, so that 2 it wouldn't be hard to get in, that the system was inadequate? 3 Wouldn't they be allowed to introduce that? And I'm assuming 4 there was a report in 1983 done by Lilly and the chairman of 5 the board says it's inadequate. 6 MS. ZETTLER: In 1985, Judge. 7 MR. STOPHER: Judge, I don't know. I haven't 8 seen such a report. All I can tell you is that the material 9 that they want to introduce I think is highly prejudicial. I 10 think it is clearly a high-risk item that is excluded under 11 the case law and under the rules. 12 JUDGE POTTER: Okay. What do you say, Ms. 13 Zettler? Even if it's in, because it's a conviction, because 14 it involves deaths, the jury is going to know anyway that 15 there are slip-ups and that sometimes things don't get 16 reported. 17 MS. ZETTLER: Not from the testimony they've 18 heard from these witnesses, they don't. They'd make you think 19 that every single scrap of paper has always been reported 20 accurately and better than anybody else, according to them. 21 I'd like to point out that this whole Oraflex deal and these 22 inadequacies that they admit, according to their own chairman 23 of the board in an exhibit that's been attached to the 24 Defendant's response, happened from the period of about 1982 25 through 1985, when this letter went out. That is the crucial 177 1 time period where this drug's NDA was filed, where the 2 majority of this drug's pivotal trials were completed and 3 reported to the FDA. So as far as this not being within the 4 same time period, it is in the exact same time period. It's 5 in the same time period that they knew and got information 6 from Germany and didn't report in this case. 7 JUDGE POTTER: When was the German thing? I 8 thought it was much later. 9 MS. ZETTLER: 1984-1985, Judge. That's when 10 they first found out about it. That's when the German 11 government first raised the issue. As far as when they 12 specifically misled the FDA, that was 1987, after this, when 13 they were supposedly revamping their, you know, reporting 14 system to make it much better and, according to Doctor 15 Thompson, the best there ever was. 16 JUDGE POTTER: What evidence is it that they 17 were fiddling -- improperly fiddling with the German 18 government in 1984, that they got some information that they 19 didn't send on in 1984? I thought it was all much later. 20 MS. ZETTLER: No. When the German government 21 came to them in 1984 and said we have this problem with this 22 drug, they never informed the FDA about it. That's what's at 23 issue here. Then specifically in 1987, when they did send 24 them -- 25 JUDGE POTTER: When was the 2.1, 2.2 document 178 1 created? 2 MS. ZETTLER: That stuff came out in 1985, 3 February of 1985. 4 JUDGE POTTER: The plea agreements, as far as 5 Lilly goes, contain nothing that is not already in the 6 Congressional report; right? It is just the criminal 7 follow-up of what the Congressional report found; is that 8 correct? 9 MS. ZETTLER: I believe that's correct, Judge. 10 JUDGE POTTER: But then they criticize the FDA 11 in the Congressional report, too. 12 MS. ZETTLER: Right. I think the only 13 difference is, in the information against Lilly, they list the 14 actual instances that were not reported or at least not timely 15 reported. 16 JUDGE POTTER: Mr. Smith, is Mr. Stopher right 17 that if you use this it's going to be your last bit of 18 evidence? 19 MR. SMITH: Is this going to be the entirety of 20 my evidence? 21 JUDGE POTTER: No. Will it be the last thing 22 you put in? 23 MR. SMITH: Probably. 24 JUDGE POTTER: Have you got enough to fill up 25 tomorrow without this? 179 1 MR. SMITH: Probably. 2 MS. ZETTLER: It will be close. It will be 3 close. 4 MR. SMITH: If the Court wants to think about it 5 overnight, we'd certainly accommodate the Court in that 6 regard. 7 JUDGE POTTER: All right. And you've got these 8 things certified with stamps and seals? 9 MS. ZETTLER: Yes, sir, Judge. 10 MR. SMITH: Whistles and bells. 11 JUDGE POTTER: And they're not stapled together, 12 so if you have to pull out a page... 13 MR. FREEMAN: Judge, could I make one point? I 14 know you don't like to hear from several lawyers, but I'd like 15 to make one point, if I could. 16 JUDGE POTTER: We've been together long enough, 17 Mr. Freeman, to where... 18 MR. FREEMAN: I was involved in the Oraflex 19 business, and I think that -- 20 JUDGE POTTER: You get the two wins; is that 21 right? 22 MR. FREEMAN: Yes, sir. 23 MR. SMITH: What about the losses? 24 MR. FREEMAN: The losses came from a Washington, 25 D.C. lawyer. I think it's important to know that the 180 1 witnesses, when they take the stand here, we have to put this 2 in a time perspective. They're talking about, in large part, 3 when they came to Lilly; for example, Tollefson and a number 4 of them. 5 JUDGE POTTER: I went back and looked it up. 6 Mr. Leigh Thompson came there in 1980, I think, didn't he? 7 MR. FREEMAN: And he said when he came he was 8 impressed with the scientific quality of the things that were 9 going on there and particularly interested in the research. 10 But you can recognize that when this kind of thing broke, that 11 the chairman was extremely upset about it and wanted to be 12 sure that it never happened again, even though they were 13 reported but reported late. 14 Now, we are talking about two different systems. 15 We're talking about the new computer system that is put in 16 place that the FDA has said is the finest in the world, as 17 compared with an older system where something could slip 18 through, but it was unintentional; everybody found that to be 19 the case, and there was no intent to do anything by deceiving 20 the FDA. 21 The further thing that I'd like to point out is 22 that there has been no indication that Lilly has failed to 23 report anything in this case in terms of Prozac. And I think 24 that is extremely cogent in terms of saying, well, you're 25 looking at two different systems and there's no evidence in 181 1 this case that Lilly has negligently or intentionally or 2 anything else failed to report a thing. 3 JUDGE POTTER: Well, I don't know. If Mr. 4 Thompson had come along and said, "I got my job when the other 5 guy got indicted and so they decided they needed a clean broom 6 and I've put in a new system that's foolproof," I wouldn't 7 even be listening to them. 8 MR. FREEMAN: He did put in a new system. 9 JUDGE POTTER: Or if he would have even said, 10 "Our system went into effect in 1984, and before that, there 11 were some problems, but we put in a new system." But he 12 didn't do that. 13 I'll let you-all know something first thing in 14 the morning. What you might think about, Mr. Stopher -- and I 15 don't know, but just so if I do let something in, if there's 16 any kind of admonition you-all want to go with it. The talk 17 paper is not in. Okay. I'll meet you-all over here about 18 7:30, how about that? I mean, I'm sorry. 8:30. 19 MS. ZETTLER: Okay. That's fine. 20 MR. STOPHER: What are we going to do tomorrow? 21 JUDGE POTTER: He's going to put on his rebuttal 22 witnesses. 23 MR. STOPHER: Who are they? 24 MR. SMITH: Mike Campbell. 25 MS. ZETTLER: We have five or six of them back 182 1 at the office. I don't know who they are right now. 2 MR. STOPHER: Well, Judge, I thought she said 3 she'd have this list ready on Monday. 4 JUDGE POTTER: Why don't you tell him the list 5 of who you're going to call. 6 MR. STOPHER: Can you give me the list? 7 MS. ZETTLER: I'll fax it to you. 8 JUDGE POTTER: No. 9 MS. ZETTLER: I don't know everybody offhand. 10 JUDGE POTTER: Well, give him the list, and then 11 if it changes... 12 MR. SMITH: Mike Campbell; Bill Hoffmann; one of 13 the doctors that treated those individuals, or some doctor who 14 can testify concerning the medication administered; Ms. 15 Bryant. 16 JUDGE POTTER: Ms. Bryant is whom? 17 MR. SMITH: One of the aunts of Mr. Wesbecker. 18 What's the other aunt? 19 MS. ZETTLER: Mildred Higgins. 20 JUDGE POTTER: You've got the video from 21 Georgia. 22 MS. ZETTLER: Right. The video deposition. 23 MR. SMITH: And I may decide not to use all of 24 them. 25 MS. ZETTLER: Mildred Higgins. 183 1 MR. STOPHER: You have subpoenaed, apparently, 2 some kind of medical records; right? 3 MS. ZETTLER: Uh-huh. 4 MR. STOPHER: Can I have a copy of those? 5 MR. SMITH: We subpoenaed Mike and Bill's and 6 Gordon's emergency room records, and I guess they're admission 7 records. Why don't I copy it and just have it delivered to 8 you tonight or late this afternoon. 9 MR. STOPHER: Uh-huh. 10 MR. SMITH: You don't have those? 11 MR. STOPHER: No. The reason I ask is I was 12 kind of surprised to see that there was a subpoena issued for 13 those records and I wasn't given a copy of it. Our rules 14 require that. 15 JUDGE POTTER: Require what? 16 MR. STOPHER: Notice of subpoenas being issued 17 and collection of documents in a case that's in trial. 18 MS. ZETTLER: We haven't gotten any subpoenas 19 from you guys. 20 JUDGE POTTER: Well, is there anybody else you 21 can think of, Mr. Smith, besides those? 22 MS. ZETTLER: I'll check the list, Judge, when 23 we get back to the office. I was anticipating they weren't 24 going to finish today. 25 JUDGE POTTER: There isn't a lot of preparation. 184 1 MR. STOPHER: The only problem I've got is with 2 the medical records and with, quote, some doctor. The rest of 3 this is, you know, obviously things I can prepare for. But to 4 prepare for some doctor based on records I don't have, I need 5 first the records. 6 MR. SMITH: I'll get those to you. Obviously, 7 the substance of the testimony would be that the particular 8 patient was so medicated that they would not be able to give 9 cogent information to Lieutenant Burbrink on September 15th, 10 by virtue of the medication and physical condition. For 11 instance, Mike Campbell had had ten hours of surgery four 12 hours, apparently -- completed four hours before this 13 interview allegedly occurred. 14 JUDGE POTTER: All right. I'll see you-all at 15 8:30. 16 (PROCEEDINGS CONCLUDED THIS DATE AT 4:25 P.M.) 17 * * * 18 19 20 21 22 23 24 25 185 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 186 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