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 THURSDAY, DECEMBER 8, 1994 15 VOLUME XLVIII 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...................................... 4 4 Proceedings in Open Court................................ 7 5 Hearing in Chambers...................................... 11 6 Reporter's Certificate................................... 80 7 * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 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 Thursday, December 8, 1994, at approximately 12:45 P.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: Okay. Why don't you-all tell me 11 anything you want to tell me. 12 MR. SMITH: Judge, after a great deal of 13 consideration, the Plaintiffs, in an effort to facilitate 14 getting this case to the jury as rapidly and expeditiously as 15 possible, are going to close the evidence without the 16 introduction of any further evidence and reserve the offering 17 of the Oraflex documents that have been previously tendered 18 for admission into evidence, reserve that for admission into 19 the punitive damages phases, if any, instead of offering it in 20 the liability-only phase, with permission of the Court, of 21 course. 22 MR. FREEMAN: That would mean that we would not 23 put up any surrebuttal and we would be ready for argument in 24 the morning. 25 JUDGE POTTER: Can we go off the record? 5 1 (OFF THE RECORD) 2 JUDGE POTTER: I guess, what, I should bring the 3 jury in, is this fair, tell them that there had been other 4 evidence considered, but the lawyers had talked about it among 5 themselves and decided that if they -- one side put in more 6 evidence then the other side would put in more evidence and 7 both sides are content -- not content, maybe is the wrong 8 word, but they have agreed to submit the case to them on what 9 evidence has come in so far, because I think I should give 10 them some kind of explanation. 11 MS. ZETTLER: Instead of dragging it out any 12 longer. 13 JUDGE POTTER: And that they will come in at 14 9:30 tomorrow morning for argument. Is there anything else 15 that can be done at 2:00? 16 MR. FREEMAN: Judge, what are you going to do 17 about the deliberations on Saturday? 18 JUDGE POTTER: My original intention was to give 19 the jury the option. My sheriff pointed out to me that Mr. 20 Higgs works Friday nights and Saturdays, he's working over the 21 weekend. I guess it might depend on whether he -- I mean, my 22 inclination is still to at least give them the option as a 23 jury, and then I guess maybe considering ordering them to do 24 it. Do you have a suggestion -- we'll just take it Plaintiff, 25 Defendant. Do you have a suggestion? 6 1 MR. SMITH: I would be hesitant, if I were the 2 Court, to order a jury to deliberate on a Saturday when this 3 is approaching Christmastime, they've been here most of the 4 week, they may have already arranged for things. I think it's 5 certainly appropriate to give them the option to deliberate on 6 Saturday, if they'd like, but as far as actually ordering them 7 to deliberate, I would be hesitant. 8 JUDGE POTTER: All right. Do you have any 9 objection to giving them the option? 10 MR. SMITH: Absolutely not. 11 JUDGE POTTER: Mr. Stopher, Mr. Freeman, what do 12 you-all think about it? I think it might be helpful if I told 13 them today what my plans were. 14 MR. FREEMAN: I have no objection. I adopt 15 Paul's position. 16 MR. STOPHER: Yeah. 17 JUDGE POTTER: My only thought about that is if 18 they do spend a couple hours deliberating on Friday, which I 19 assume they will, they may have their first inability to reach 20 a decision. There are going to be ten of them that, "I want 21 to get this over with." I guess I will just give them the 22 option -- because if they want to do it I think they -- and 23 tell them today that they will have the option when I send 24 them out. Anything else? 25 MR. SMITH: One other matter off the record, if 7 1 it's possible. 2 (OFF THE RECORD; HEARING IN CHAMBERS 3 CONCLUDED; THE FOLLOWING PROCEEDINGS 4 OCCURRED IN OPEN COURT) 5 SHERIFF CECIL: All rise. The Honorable Judge 6 John Potter is now presiding. All jurors are present. Court 7 is now in session. 8 JUDGE POTTER: Please be seated. 9 Ladies and gentlemen of the jury, I have what 10 I'm sure to you is going to be either surprising or 11 disappointment -- disappointing thing to say, maybe both, but 12 let me go ahead and ask the question. 13 Mr. Smith, do you want to call your next 14 witness? 15 MR. SMITH: At this time, Your Honor, the 16 Plaintiff concludes their case. 17 JUDGE POTTER: Mr. Stopher, do you have any 18 further evidence? 19 MR. STOPHER: Your Honor, on behalf of the 20 Defendant, we also have concluded our case. 21 JUDGE POTTER: Yesterday or earlier when the 22 lawyers were planning things out, they thought there would be 23 some more evidence today. At the very beginning of the case I 24 talked to you-all about asking questions and I said sometimes 25 the lawyers leave something out or they decide not to bring 8 1 something up because that leads to something else and that 2 leads to something else. Didn't I say something to you like 3 that? One of the reasons they've spent some time talking 4 yesterday and today, they came to an agreement to submit the 5 case to you on the evidence that's come in. There was 6 something that the Plaintiffs were thinking about and the 7 Defendant said this, and they talked and whatnot, and they 8 decided they would maybe open another avenue and we'd be off 9 and running again on something, so they decided among 10 themselves that it would be submitted to you on the evidence 11 that's been in so far. 12 As I told you, the case will be argued at 9:30 13 tomorrow morning. We have discussed -- I told you previously 14 that you would not be sequestered, and by that it means you 15 would go home at night with the admonition not to talk about 16 the case. Tomorrow is Friday. The 12 of you that are 17 selected to sit on this jury will go out tomorrow. I will ask 18 you-all that it will be your option whether or not you want to 19 deliberate on Saturday because let's say, you know, the 20 arguments start at 9:30. The lawyers haven't agreed on how 21 long they're going to take, but let's say they get finished by 22 two or three o'clock in the afternoon. We took most of the 23 day for the openings, as I remember. The case would be 24 submitted to you, you-all would deliberate some in the 25 afternoon Friday afternoon. It probably will be largely up to 9 1 you what time you want to deliberate to before you took the 2 evening recess. Then you would have the option of either 3 coming back Monday morning or Saturday morning. Does 4 everybody understand what I'm saying? So if it helps you-all 5 in -- I know it's close to Christmas. You-all may well have 6 made plans for Saturday or, you know, just have plans 7 otherwise, but if it helps you do anything this evening, I can 8 tell you that if you're selected to be on the jury, one of the 9 decisions you will have to make on Friday is whether you want 10 to come back on Saturday. Okay? 11 So does anybody have any questions of me about 12 the procedures from here on out, maybe something that's been 13 bothering you, because, you know, if you have a question, the 14 time to get it answered is now when you can do something about 15 it rather than have it at 4:00 tomorrow afternoon when you 16 can't get in touch with your husband or whoever you need. 17 You-all will not be kept here till all hours of the night or 18 anything like that. Maybe not go home right at 5:00, like 19 we've been doing. 20 Ms. Felker, I've got you in the wrong seat in my 21 mind, so I always have to look. Yes, ma'am. 22 JUROR FELKER: How are the 12 selected? 23 JUDGE POTTER: I'm sorry. I thought I said this 24 at the very beginning. There will be a totally random draw to 25 draw out three names and those will be the alternates. I 10 1 guess we could draw out 12 names, but it's easier to draw 2 because there are 15 of you. We need 12. The clerk or 3 perhaps my Court Reporter will take your name in the hat and 4 pull out three names. I'm sorry. I thought I said that 5 because usually what happens, if I don't say that Ms. 6 Whitehouse and Ms. Williams kind of assume that they're the 7 alternates because they're sitting in the back. 8 JUROR WHITEHOUSE: Shucks. 9 JUDGE POTTER: I want to make it clear that that 10 isn't the way it is. Any other kind of questions? I'm going 11 to give you the same admonition I've given you before. And, 12 again, I want to emphasize the closer we get to the end, I 13 don't want to say it's more important that you observe it 14 because it's important that you do it all the time, I think 15 it's harder to observe it. Okay? Because you can go home 16 tonight and you can obviously say to your family or whatever 17 that we're going to start deliberations tomorrow; that's just 18 telling them what you're going to go to work on. But there 19 will be, I think, more of a tendency or if they read in the 20 newspaper tonight that deliberations are going to start 21 tomorrow. And particularly after you start deliberating I 22 think there's going to be -- you know, there will be much more 23 interest on their point to say come on, dad, mom, wife, 24 husband, whatever it is, let's talk about it. And 25 particularly after you've been deliberating, I think there 11 1 will be a great deal of -- pressure is the wrong word, but 2 emotional energy on your part to want to discuss this with 3 somebody besides your 11 other jurors because you-all will sit 4 in there and talk about this thing, and just like a water 5 switch you're going to have to turn it off when you go home, 6 and that's hard. 7 And there's been ten weeks, I think you have a 8 tendency to relax, I think you-all have gotten along together. 9 You haven't liked every minute of it, but I think some of it 10 has been pleasant and I think there might be a tendency on 11 your part, particularly here at the end, to kind of -- a 12 tendency on your part maybe to relax on that admonition, and 13 also the tendency on the part of those that are around you to 14 kind of up the pressure to talk about it. Okay? Do you 15 understand what I'm saying? It's real important at this 16 point. 17 I'm going to give you the same admonition I've 18 given you many times. Do not permit anybody to speak to or 19 communicate with you on any topic connected with this trial 20 and any attempt to do so should be reported to me. Do not 21 discuss this case among yourselves and do not form or express 22 opinions about it. With that admonition we'll stand in recess 23 till 9:30 tomorrow morning. 24 (JURORS EXCUSED; HEARING IN CHAMBERS) 25 JUDGE POTTER: Let's start through what needs to 12 1 be done. 2 MR. STOPHER: Judge, if you don't have a 3 particular agenda, I know that we need to make a motion for a 4 directed verdict, and if you don't object to taking that up 5 first, I think that probably is the logical thing to do. 6 JUDGE POTTER: No. I think it has to be taken 7 up. 8 MR. MYERS: Judge, we do have motion for a 9 directed verdict and as part of that I need to renew a few 10 prior motions and it will take a little bit of time, but I 11 think it will help us get through the instruction anyway when 12 we take this up. 13 JUDGE POTTER: Okay. 14 MR. MYERS: The first thing on behalf of Eli 15 Lilly and Company that I would like to do, Judge, is to renew 16 the motion on Doctor Breggin and at this time move the Court 17 for a directed verdict and to strike Doctor Breggin's 18 testimony as it relates to the issue of causation in this 19 case. As with all the other motions that I'm going to make, 20 all of this has been fully briefed to the Court, and I would 21 certainly adopt and incorporate by reference our prior filings 22 on the Doctor Breggin motion and the prior arguments that were 23 made by both Mr. Freeman and by Mr. Stopher on that question, 24 but I would at this point like to make just the following 25 several points to the Court. 13 1 The first thing is that of course we deferred 2 the question of Doctor Breggin and a motion on Doctor Breggin 3 until such time as all the evidence was in so that the 4 witnesses from Lilly, Doctor Fuller, Doctor Tollefson, Doctor 5 Wernicke, and our expert witness, Doctor Greist, could come 6 down here so that the record could be complete on the 7 scientific information. And that evidence having come in, we 8 again make the same motion on Doctor Breggin that there is no 9 reliable scientific basis upon which his opinions concerning 10 causation can be based. The theories that he has advanced 11 concerning causation have not been tested, they have not been 12 confirmed, they've not been verified, they've not been 13 replicated anywhere in medicine or science anywhere in the 14 world. Insofar as the issue in this case, and that is Prozac 15 inducing violence, aggression, homicide, Doctor Breggin stands 16 alone with no basis that Prozac causes these types of 17 behaviors. In all of the scientific evidence having come in, 18 there again has been no confirmation, verification, 19 replication or testing that establishes what is simply his 20 theory or his hypothesis that this occurs. 21 Now, when we had the original argument, with all 22 due respect, I think we got a little bit sidetracked on the 23 question of Doctor Breggin and how he thought serotonin worked 24 and how he thought Prozac worked. That is really not the 25 fundamental question on our motion which has been brought 14 1 under Daubert. 2 Doctor Breggin has got up and sworn that Prozac 3 was a substantial factor in causing Mr. Wesbecker to do what 4 he did, and there is no evidence that that theory that he has 5 advanced has been tested, as I've said, has been subjected to 6 any sort of a peer review and publication. In fact, there is 7 no literature anywhere in the world that supports his 8 assertions, there's been no discussion on his part as to what 9 the rates of error in any such theory that he advances might 10 be under Daubert, and there, in fact, is no evidence that his 11 view, and it is his view alone, no doctor in Kentucky, in the 12 United States or anywhere else in the world has generally 13 accepted the opinion he advances. Throughout his testimony 14 and throughout the cross of some of Lilly's witnesses, there 15 were some things interspersed to the effect, "Well, don't you 16 agree with Doctor Fuller about this general principle of 17 neuroscience?" "Oh, yeah, Doctor Fuller and I agree on that 18 point." That is not the point at all in terms of the 19 sufficient, reliable, scientific basis for the causation 20 opinion in this case, and for that reason we renew the motion 21 on Doctor Breggin, incorporating all of the arguments and 22 citations previously made. 23 JUDGE POTTER: Okay. Ms. Zettler. 24 MS. ZETTLER: Judge, this motion has already 25 been argued quite thoroughly before the Court when Doctor 15 1 Breggin testified. We adopt and reiterate all of our 2 arguments that were set forth in the oral arguments as well as 3 the briefs that were filed on this issue. But just to recap 4 what was argued during that motion, the question under Daubert 5 is not whether or not Doctor Breggin's opinion is widely 6 accepted, the question is what he relies on, and what he 7 relied on was Lilly documentation, Lilly studies, FDA 8 documentation, medical literature and literally just dozens 9 and dozens of documents that were provided by Lilly, generated 10 by Lilly, information of that nature. And Daubert does not 11 require that he run a specific test on his own or run some 12 sort of a study to support his theory, it just requires that 13 he relies upon medical and scientific information that is 14 reliable. Our view is that he relied upon information 15 generated by the FDA or submitted to the FDA by Lilly. 16 Second, what has happened since Doctor Breggin's 17 testimony, and we differ with Lilly's argument on this, there 18 has been a lot of testimony by Lilly's witnesses, including 19 Doctor Greist, that supports Doctor Breggin's theory. For 20 instance, Doctor Greist testified on cross-examination that 21 this drug can cause violent behavior in some people. He also 22 agreed with Doctor Breggin as to the cascade effect of 23 serotonin which is caused by the use of Prozac and how it may 24 affect other receptors. We believe that Doctor Breggin's 25 testimony and the basis for his testimony has been supported 16 1 by Lilly's own scientific witnesses and scientific literature. 2 JUDGE POTTER: I have previously ruled on this. 3 And I don't know what I'd do if Doctor Breggin was the only 4 expert at trial, but it seems like to me that what 5 deficiencies Doctor Breggin might have if he were the only 6 expert at trial, the criticism of the studies, the testimony 7 of the other people about how it works, bolster his central 8 theory around -- bolster the edges of his theory, and he's an 9 educated person, and I think I said this originally is I see 10 his testimony more as explaining the mechanics of how Prozac 11 could have caused this, and really, to some extent, Lilly's 12 view of the mechanics of how Prozac works is not any more 13 objectively verifiable than Doctor Breggin's. They have a 14 theory about what gets blocked and what stops and they've 15 tested it on people and it's their explanation of what's going 16 on seems to explain what they see in people and, therefore, 17 they believe it's true. It's just kind of like, I guess, an 18 atom. We don't really see the little balls rolling around the 19 nucleus, but that explanation of the various rings seems to 20 explain how chemicals combine and how things go on, and so we 21 accept it. So I am not going to instruct the jury to 22 disregard his testimony. 23 MR. MYERS: All right, sir. Your Honor, at this 24 time we would again renew our motion on the warning issue on 25 preemption to dismiss any claim for failure to warn on the 17 1 basis that the subjective warnings that a company 2 pharmaceutical products in this country is within the sole 3 purview of the United States Food and Drug Administration 4 under its authority as granted by Congress under the Food, 5 Drug and Cosmetic Act. And the regulations which it 6 promulgates under that act for the regulation of the testing, 7 development and approval of new drugs and specifically the 8 labeling of new drugs, as I'll discuss later in this type of 9 case, the guts of the case has got to be that the warning was 10 inadequate, and it's our view that the federal government 11 under the Food, Drug and Cosmetic Act and through the Food and 12 Drug Administration has preempted that area of law, and for 13 the reasons set forth in our original motion and supporting 14 brief, we renew that motion and move for a directed verdict on 15 that point. 16 JUDGE POTTER: That one was thrashed out very 17 thoroughly. I'm not going to make Ms. Zettler respond to it 18 because I don't think the federal government has preempted 19 that area. 20 MR. MYERS: At this time we also renew our 21 motion for summary judgment and now a motion for a directed 22 verdict on the Plaintiffs' claim for punitive damages. All of 23 the evidence now being in and taking all of the evidence as a 24 whole and drawing every reasonable inference in favor of the 25 party having a burden of proof, that is the Plaintiffs, this 18 1 jury cannot conclude as a matter of law that the evidence is 2 clear and convincing that Eli Lilly and Company has acted with 3 malice. The component of the statute under which the 4 Plaintiffs have elected to proceed in their papers that Lilly 5 has acted with malice towards these Plaintiffs in any action 6 or inaction that it allegedly took in connection with the 7 research, development and testing of fluoxetine and the 8 marketing of the drug, it's our position that the statute in 9 Kentucky virtually requires almost an intent to harm and an 10 intent to harm these Plaintiffs, and the evidence utterly 11 fails on that particular point. And for the reasons set forth 12 in our original motion and our reply and the arguments which 13 Mr. Freeman made in chambers several weeks ago, we again renew 14 that motion. 15 The only other point I would like to make is 16 that as far as the witnesses that the Plaintiff has listed in 17 terms of additional proof on this question, I believe the 18 proof, per se, is closed because the only other information to 19 be gleaned is some financial information, and then I also 20 understand that Doctor Lord may return to give her spin on 21 what the documents and the evidence show. But the documents 22 and the evidence are already in evidence, so I believe the 23 record is closed on that as a practical matter. 24 JUDGE POTTER: It may be as a practical matter, 25 but I'm still -- 19 1 MS. ZETTLER: With the exception of the Oraflex 2 information, Judge. 3 JUDGE POTTER: Well, I'm still going to -- I 4 previously denied a motion for summary judgment on the issue 5 of punitive damages. I'm going to stick with that ruling. 6 MR. MYERS: At this time, Judge, we would also 7 make motions for a directed verdict as to the other potential 8 parties against whom fault might be apportioned in this case; 9 Mr. Wesbecker, Standard Gravure and Hall Security. As to Mr. 10 Wesbecker, as the Court's draft instruction. 11 JUDGE POTTER: I'm inclined to grant that one, 12 Ms. Zettler. Why -- what proof is there here for a reasonable 13 jury to find that Mr. Wesbecker -- look at it this way. If 14 this was only a suit about Mr. Wesbecker, in my opinion it 15 would be a directed verdict case. Why isn't it a directed 16 verdict case? You now represent Mr. Wesbecker and your 17 clients have moved for a directed verdict as to liability. 18 MS. ZETTLER: What's directly at issue here, 19 Judge, is Mr. Wesbecker's conduct as influenced by Prozac. It 20 may very well be that the jury will find, and I think it's an 21 issue for the jury, that he did not have the ability to form 22 the intent that is necessary under the influence of this drug. 23 JUDGE POTTER: I haven't heard that from any 24 witness. The most I've heard is this is a fellow that -- I 25 won't oversimplify it, but went out and drank too much coffee 20 1 and got himself very agitated and in his delicate condition 2 that pushed him over the brink, but I haven't heard anything 3 that somebody that if -- what is it they do in criminal cases, 4 that if a policeman would have been standing in the door 5 wouldn't have driven by in his car and come back another day. 6 MS. ZETTLER: Doctor Breggin testified 7 extensively that this drug caused Joseph Wesbecker to take the 8 actions that he took on September 14th, 1989. 9 JUDGE POTTER: Absolutely correct. 10 MS. ZETTLER: As far as whether or not -- I 11 don't think it's for Doctor Breggin to testify whether or not, 12 like your ruling the other day on Doctor Granacher's 13 testimony, whether or not this was an intent -- was ability to 14 form an intent, putting it in those words, because that is 15 something that the jury is to decide. What Doctor Breggin has 16 testified to is that he is not able -- he was not able to 17 control his actions. 18 JUDGE POTTER: You gave me a brief on it and 19 I've looked at it quickly and what -- even accepting the 20 standard that you say Wesbecker wouldn't be liable if, okay. 21 I haven't read Preferred Risk Mutual Insurance Company versus 22 Saboda, but my guess would be it's somebody trying to collect 23 under a homeowners policy and trying to get away from the 24 exclusion of the homeowners policy doesn't cover intentional 25 acts. Have you got it there, Mr. Stopher? I mean, that was 21 1 just my guess when I read the thing. 2 MS. ZETTLER: It was pretty close. 3 JUDGE POTTER: There's a whole different set of 4 emotional factors. 5 MR. STOPHER: It's a Florida case, Judge. 6 JUDGE POTTER: I did not look it up. Just from 7 the way -- 8 MR. STOPHER: Here it is. 9 JUDGE POTTER: I've got it right here. 10 MS. ZETTLER: What they really stressed is what 11 they called the fireman's rule down there, Judge, where a 12 policeman, if he's put -- becomes injured basically in the 13 line of duty. 14 JUDGE POTTER: Okay. That's the assumption. 15 MS. ZETTLER: Right. But they did -- I mean, a 16 significant issue in this case was whether or not the 17 defendant had the capacity to form the intent that was 18 required under the law on the tort. Generally the case law 19 both from an involuntary intoxication and an insanity point of 20 view as to civil litigation say that people who are 21 involuntarily intoxicated or insane, sometimes they call it 22 derangement, sometimes they call it lunacy, cannot form the 23 requisite intent to commit an intentional act, which is what 24 Lilly's asking you to direct a verdict on. 25 JUDGE POTTER: Let me just finish this case. 22 1 MR. MYERS: Yes, sir. 2 JUDGE POTTER: It was the kind of case I 3 thought -- and I think even in that case nobody is saying that 4 the shooter is not liable; they're just saying it wasn't an 5 intentional act. You get those cases where somebody is under 6 drugs and they commit suicide and the policy won't pay off for 7 some reason because it's an intentional act, so they're saying 8 "I was under drugs and it wasn't intentional," or you get a 9 homeowners and they won't pay for intentional acts, and they 10 say he's crazy, so it's just negligence. And that's some kind 11 of flipside of that. And the jury found that he was negligent 12 and he was at fault, it just wasn't that it was an intentional 13 act. We have a -- I had a long case with the fireman's rule 14 and I've even forgotten what it is, but the only thing I 15 remember about it was that myself, three judges on the Court 16 of Appeals went one way, and three judges on the Supreme Court 17 went the same way, which was seven judges, and four judges on 18 the Supreme Court went the other way, so it was seven to four. 19 MR. STOPHER: I know the one you're talking 20 about and I can't remember the name of it, either. 21 JUDGE POTTER: I tried it forever, and the real 22 bad part of the case was that they granted a rehearing on 23 somebody when they should have never done it so... The 24 Supreme Court granted a rehearing, and I like to joke about 25 that because it was done on a rehearing at the time when 23 1 lawyers were talking about a joke was even the four Supreme 2 Court justices couldn't get it right until they gave them a 3 makeup test. Isn't that what rehearing is? So I feel very 4 comfortable with that one, Ms. Zettler. I do. 5 MS. ZETTLER: I guess I'm -- well, maybe I'm a 6 little -- are you saying that you're holding him to a 7 negligence standard or are you saying you're holding him to an 8 intentional tort standard? 9 JUDGE POTTER: It doesn't make any difference. 10 What I'm saying is Mr. Wesbecker had an absolute duty not to 11 injure those people on that day and he violated that duty. 12 Now, if the jury believes he did it intentionally, 13 calculatingly, maliciously, and assume they find Lilly at 14 fault, they may put 90 percent of it on him and 10 percent on 15 Lilly. If they find that he was this crazy, sick, deranged 16 person, they may put 10 percent on him and 90 percent on 17 Lilly. That's where -- 18 MS. ZETTLER: Maybe the wording of the 19 instruction is another issue, then, Judge. 20 JUDGE POTTER: Okay. But I have no doubt that 21 if this were the Plaintiffs against Mr. Wesbecker, I would 22 direct a verdict here. 23 MS. ZETTLER: Over our objections, obviously. 24 JUDGE POTTER: Obviously. Now, as to the other 25 one I'm thinking about, Mr. Myers, which is Hall Security, 24 1 you've moved for a directed verdict against Hall Security. 2 I'm not going to direct a verdict against Hall Security or 3 Standard Gravure, but we might as well -- or do you want to 4 wait for her to make a motion? Why don't we talk about Hall 5 Security. What evidence is there that anybody from Hall 6 Security did anything that a jury could reasonably say would 7 have affected the outcome of this in some -- 8 MR. MYERS: Well, Judge, in the first instance, 9 one of our positions throughout this trial has been that Hall 10 Security essentially acted almost as an agent of Standard 11 Gravure because of Mr. Throneberry's relationship with that 12 entity; although they were and are legally a separate entity, 13 they acted as Standard's agent. 14 JUDGE POTTER: Okay. Let me say one thing that 15 I have thought about doing and we can take it up when we get 16 to Standard Gravure is I don't have any problem with Hall 17 Security being Standard's agent and put Standard Gravure 18 through its agents, including the employees of Hall Security, 19 had whatever duty we put on them because that's kind of what I 20 think the law is, that they were an agent of Standard Gravure 21 and it's undisputed that Standard Gravure told Mr. Addams -- 22 Aabrams where to stand, what to do, how to -- who to call when 23 something went wrong. Is there any serious doubt that if this 24 were a suit by the Plaintiffs against Hall Security and 25 Standard Gravure that Standard Gravure would be liable under 25 1 the doctrine of respondeat superior for everything that Hall 2 Security did the way the proof has developed. 3 MS. ZETTLER: I think there's a major question 4 on whether or not -- and, frankly, Judge, this is a surprise 5 on me. There's no -- I even had a chance to look at the law 6 in agency here, but I think there's a major question of not 7 only whether or not Hall Security was in fact an agent for 8 these purposes of Standard Gravure, Number One, and, Number 9 Two, whether any kind of responsibility, respondeat superior 10 or otherwise, or agency or otherwise, could be leveed on Hall 11 Security because they simply had no knowledge. 12 JUDGE POTTER: No. No. I'm talking about -- 13 MS. ZETTLER: Whether or not Hall was acting as 14 an agent of Standard Gravure. 15 JUDGE POTTER: Right. Not the other way around. 16 MS. ZETTLER: Right. And what I'm saying is I 17 don't think that -- you know, and I will admit that I haven't 18 prepped on this issue because I wasn't anticipating it being 19 raised for eight days, but I can't imagine that it is 20 all-fired closed in that they are an agent of Standard 21 Gravure. 22 JUDGE POTTER: Mr. Myers, forget about whether 23 they're an agent of Standard Gravure. I mean, what did Mr. 24 Aabrams do? 25 MR. MYERS: Can I defer to Mr. Stopher on that 26 1 question because he's handled that part of the case? I don't 2 want to double team anybody, but he's better able to answer 3 that than I am. 4 JUDGE POTTER: That's all right. 5 MR. STOPHER: I think there are really two 6 items; the first one does not relate specifically to Mr. 7 Aabrams, but it is the failure of Hall Security to do a 8 security analysis or to have one done and determine what was 9 adequate to provide reasonable security, and to make those 10 recommendations to Standard Gravure. The second item, Your 11 Honor, is with regard to Mr. Aabrams' actions on that 12 particular date in failing to attempt to evacuate the 13 building. There is -- there were at least one means by which 14 he could have done that and that was not done, and I think 15 that would have resulted in a reduction of the death and the 16 injury that ensued when he was aware of the incident at the 17 very earliest possible stage. I think those are two items 18 that justify a directed verdict against Standard -- I mean, 19 against Hall Security Company independently of Standard 20 Gravure and if they are to be considered purely an agent and 21 not responsible for their own torts, which I think agents are 22 responsible individually as the Court well knows. 23 JUDGE POTTER: They are. They are. 24 MR. STOPHER: And I think that's the reason. 25 Now, that also -- that conduct also spills over to their 27 1 superior, Standard Gravure. 2 JUDGE POTTER: Okay. What evidence was there 3 that they were ever asked to do any kind of security 4 evaluation or anything like that? I mean, somebody hired a 5 watchman. What evidence was it that they were ever supposed 6 to do anything more than just provide a competent Mr. Aabrams 7 out there? 8 MR. STOPHER: Judge, there are really two items 9 of evidence; one is the contract itself, which provided that 10 they were to protect the persons and the property of Standard 11 Gravure against trespass and against burglary and other 12 unlawful entry, and clearly Mr. Wesbecker committed an 13 unlawful entry. That contract obligation could only have been 14 fulfilled if they had provided adequate security and the 15 failure to do that is negligence, and it's undisputed 16 negligence. 17 The second item is that there was, according to 18 the testimony of Mr. Throneberry, he relied upon Hall Security 19 to make recommendations as to what ought to be done. Hall 20 Security took the position that they relied upon Mr. 21 Throneberry to tell them what ought to be done, but I think 22 that the contract language itself speaks to that issue, and I 23 think the burden for that is on Hall by contract and they 24 failed to do it. Perhaps, you know, their self-serving 25 language that we were relying on Mr. Throneberry implicates 28 1 Standard Gravure, but by the same token, Your Honor, under the 2 contract I think it is undisputed that Hall Security didn't do 3 it, and by failing to do it violated the terms of the 4 contract. 5 MS. ZETTLER: Judge, the contract does not in 6 any place require that they do a security evaluation. 7 JUDGE POTTER: My memory is that the contract 8 even specifies the number of people they're supposed to have 9 there, doesn't it? 10 MS. ZETTLER: Right. 11 JUDGE POTTER: Or it says the amount set by 12 Standard Gravure. 13 MS. ZETTLER: Right. I don't believe that a 14 clause in there saying that they are to prevent an unlawful 15 entry, burglary and vandalism, things of that nature, has ever 16 been established to rise to the level of requiring them to do 17 a safety evaluation. Also, there's no notice here to Hall 18 Security that there was ever any problem with Mr. Wesbecker, 19 that he had ever made any threats or anything of that nature, 20 and we feel there was no notice to Standard Gravure, either. 21 But especially it has never been established that anybody from 22 Hall Security has ever had notice that there may be a problem 23 with this man. As far as an unlawful entry is concerned, just 24 the fact that Mr. Wesbecker if he had come on that property 25 that day and had not injured or killed anybody, it wouldn't 29 1 have been an unlawful entry. Once that -- he was on the 2 premises before, he had a right to come in to talk to Human 3 Resources and Employee Relations and things of that nature, so 4 as far as just preventing him from coming on there... The 5 contract just simply doesn't require an evaluation. 6 JUDGE POTTER: I agree with that that they 7 didn't have an obligation assumed by contract, and I guess my 8 problem with the fire alarm or evacuating the building, first 9 of all, I listened very carefully and I had expected to hear 10 that right outside the door was one of those things you could 11 break the glass and set off the alarm. I did not hear that. 12 But even if I had heard that, it would be total speculation 13 whether pulling the alarm would have saved or helped lives. I 14 mean, didn't we hear testimony that there was a bunch of women 15 down those various halls that he didn't go down, and some of 16 them looked down -- one of them testified she looked down the 17 hall and saw him and scampered back in her office. A couple 18 of them. And if he would have pulled the alarm, for all we 19 know, people -- I saw the diagram, I don't know how many 20 people were in there, but there were a lot of offices, 21 everybody comes streaming that way, obviously maybe somebody 22 down in the break room wouldn't have been killed but, you 23 know, there might have been other people up in the 24 administrative office area. 25 I just think anything for a juror to draw 30 1 about -- even assuming a juror would believe -- let me go back 2 on that. What would have happened had he tried to evacuate 3 the building, the effects of that are so problematic that no 4 one can say that would have been the smart thing to do, even 5 in hindsight. 6 So I am going to -- as a matter of fact, going 7 through this I am going to not address Mr. Aabrams in 8 anybody's instructions. I don't think he did anything wrong. 9 I don't think -- or at least there's no proof in this case he 10 did anything wrong and Hall Security was under no obligation. 11 We kind of got sidetracked a little bit there, Mr. Myers. Why 12 don't you go on down. 13 MR. MYERS: Yes, sir. As relates to Standard 14 Gravure, Judge, we move for a directed verdict on this basis. 15 As the Court remembers, we had a hearing I guess a week or so 16 ago on whether the Court was going to allow the testimony of 17 Mr. Rakow into evidence, and the Court's instruction as 18 drafted addresses the duty of the Standard Gravure legally. 19 And as the Court noted in that hearing, I think you said 20 something to the effect, "Isn't it clear that what Standard 21 Gravure did in this case was absolutely nothing." And with 22 the duty imposed on them by law as reflected in the Court's 23 instruction, the significant evidence introduced by Mr. 24 Stopher on the history of threats at Standard Gravure and the 25 policy to report those threats and the Court's -- and I'm not 31 1 trying to put a binding comment on the Court, but the Court's 2 comments that Standard Gravure really did not do anything, we 3 believe that a verdict should be directed against them as to 4 their fault here as a party against whom fault may and, in 5 fact, in this case should be apportioned. 6 MS. ZETTLER: Judge, the only way that Standard 7 Gravure could be found liable in this case is if the jury 8 decides that they did in fact have knowledge that Mr. 9 Wesbecker was going to come in there and kill a bunch of 10 people. The best that they have done in this case as far as 11 showing what even could be considered as previous knowledge is 12 the incidence where Mr. Wesbecker allegedly came onto the 13 premises with a gun 1986 or 1987 and threatened -- supposedly 14 threatened Mr. Cox and Mr. Popham if they approached him and 15 talked to him about things other than work. I believe it's a 16 common law duty that -- like you have set out in your 17 instruction, and it is for the jury to decide whether or not 18 they breached that duty, and incumbent on that is deciding 19 whether or not you believe they had knowledge in this case of 20 Mr. Wesbecker's propensities, and there just simply is no 21 evidence to that. 22 And just as an aside, Mr. Rakow was never 23 tendered as an expert witness or any kind of witness against 24 Standard Gravure; he was a witness against Hall Security and 25 he did not render any kind of opinion in that deposition that 32 1 came anywhere near what is required as far as causation, which 2 is that it was a substantial factor, and anything they would 3 have done or not done would have changed anything that 4 happened on September 14th, 1989. 5 JUDGE POTTER: Again, I guess I'm jumping ahead 6 to what my standard -- my anticipated obligation is on 7 Standard Gravure, and I think the real issue with Standard 8 Gravure is with the knowledge that they had, and they did have 9 some knowledge. Everybody agrees that he was mumbling and 10 bad-mouthing and the jury could find a lot of those specific 11 incidents that he told somebody, "I'm coming back," I'm 12 whatever. And I don't think that knowledge has to be at the 13 level of Mr. Throneberry or at the level of Paula Warman. 14 Every pressman out there had an obligation, they're an 15 employee of Standard Gravure and they had an obligation to act 16 reasonably. 17 And I haven't gone through these cases that I've 18 pulled recently, but my memory is that a lot of them that the 19 negligence on the part of the Howard Johnson's or the Quick 20 Mart or whatever it is, as a low-level cashier, that the 21 knowledge is to the desk clerk or the cashier or the gas 22 station attendant or whatever, you know, that there's somebody 23 lurking in the parking lot, somebody on a room calls up and 24 says, "There's been a robbery," and she doesn't send -- the 25 telephone operator when she calls the guard or whatever and 33 1 sends him out to investigate the disturbance in Room 202 2 doesn't tell them that her report is, you know, of a robbery 3 by an armed man, she gives him misinformation, and so they 4 find that that person didn't act reasonably or take ordinary 5 care. 6 So I think there is a real issue about whether 7 Standard Gravure's people acted reasonably or used ordinary 8 care, and it's a jury issue as to how much they knew. The 9 jury could find this was just normal work gripe and, you know, 10 it's like -- I don't want to hear this from anybody in closing 11 argument. It's like the people in the garbage can, you see 12 it -- the bodies in the garbage can, you see it but you don't 13 believe it, and so it's reasonable not to take every threat 14 seriously. So I'm not going to direct a verdict against 15 Standard Gravure. Similarly from what I've said, I'm not 16 going to direct a verdict exonerating them like I've done for 17 Hall Security. 18 MR. MYERS: Judge, the next handful of remarks 19 that I have are included in our trial brief which we filed 20 separately and also with our proposed instructions. The first 21 motion that I have is -- and I certainly hope it's not going 22 to be contested, is that we move for a directed verdict on the 23 Plaintiffs' warranty claims. Under Williams versus Fulmer, 24 there is no privity between Lilly and these Plaintiffs. 25 There's been no evidence introduced at all to make out a 34 1 warranty claim in terms of notice, the giving of an express 2 warranty, the existence of an implied warranty, and I think 3 your instruction contemplates that there's not a warranty 4 claim and I think that just as a cleanup matter ought to just 5 go. 6 MS. ZETTLER: I'm not going to agree to that. 7 And I am going to object to it, but I am not going to insist 8 on an expression of warranty. I think we've got enough to 9 deal with. 10 (OFF THE RECORD) 11 MR. MYERS: I really believe with this warranty 12 thing, there's been no proof. 13 JUDGE POTTER: She's not going to ask for an 14 instruction on it, and in Kentucky we really don't break them 15 down quite that way. I mean, I haven't really thought about 16 warranty because I assumed it would either go as a negligence 17 or a products liability type instruction. 18 MR. MYERS: All right. Our next motion for a 19 directed verdict, Judge, is as to the Plaintiffs' claims 20 sounding in strict liability based on some sort of a product 21 defect. The evidence is a matter of law, now that all the 22 evidence is in, is insufficient to prove that Prozac or more 23 specifically the product literature was inadequate such that 24 Lilly, as a prudent manufacturer, would not have put the drug 25 on the market at all or would have put the drug on the market 35 1 with a different warning. And as to the question of warning, 2 I would like to put that aside for the moment because I have a 3 few remarks about that. But we do move for a directed verdict 4 on the grounds that there's no evidence that Lilly should not 5 have put this drug on the market, that it should not have been 6 approved, and, you know, even Doctor Breggin, who had a lot of 7 things to say, said he did not believe that the drug should 8 not be on the market. So on that ground we move for a 9 directed verdict. Additionally, we move for a directed 10 verdict on strict liability as to any claim that there was a 11 manufacturing defect, that is, that the product that Mr. 12 Wesbecker got is not what he was supposed to get. 13 JUDGE POTTER: Everybody agrees he didn't get a 14 bad batch. 15 MS. ZETTLER: Right, Judge. I think there are 16 two issues here. And one is whether or not there was 17 negligence under a testing and a warning theory, and the other 18 is whether or not the product was defective by virtue of its 19 warning or lack thereof or some other propensity of the drug 20 as intended, not manufactured. 21 MR. MYERS: I'm just talking about the strict 22 liability stuff now. 23 JUDGE POTTER: Okay. Why don't you, in arguing 24 against his motion, give us a two-minute summary of Mr. 25 Smith's closing on that issue. 36 1 MS. ZETTLER: I mean, are we doing this just 2 defective in not warning or, you know, defective in and of 3 itself or... 4 JUDGE POTTER: I am very convinced that the 5 defect is an improper warning. 6 MS. ZETTLER: Well, in addition, this drug was 7 never tested, and I think it may go part and parcel to a 8 certain extent with the warning, but the drug was never tested 9 for use in people with schizoaffective disorder, which is what 10 Mr. Wesbecker was diagnosed as in the last two years of his 11 life. I think that we submitted evidence that their own 12 people, including Doctor Slater, early on in the development 13 of this drug felt that the people with schizoaffective 14 disorder should not have been given the drug. It should have 15 been tested -- given its stimulant properties, it should have 16 been tested in that group of people and it was not. 17 So I think as far as a defective product by 18 virtue of its lack of testing, it's defective in that manner. 19 Also, given its propensities to have stimulant effects on some 20 patients, it's defective inherently as far as it's been meant 21 to be used and the way it was created and designed. May be 22 closer to a design defect in a sense, Judge. 23 JUDGE POTTER: Well, failure to warn is a design 24 defect. I mean, you can play semantics, but you design 25 something and you say this is what it's going to look like and 37 1 these are the instructions and they, under your theory, 2 designed the instructions improperly. 3 MR. MYERS: Could I make just one comment on the 4 question of design, Judge? It isn't going to get off track. 5 It is our very firm position that we're entitled, as well, to 6 a directed verdict on a manufacturing defect, on a design 7 defect for this reason. This is not like a wood chipper where 8 if you put a guard on it or if you don't put a guard on it, 9 you don't change the essential function of the product. 10 Pharmaceutical products by their inherent nature, if you move 11 one molecule around, it's not the same product. And under the 12 Snawder v. Cohen case that we cited in our brief, there is not 13 a design defect in a pharmaceutical case for the very reason 14 that I stated, that if you move one of the molecules around, 15 fluoxetine hydrochloride is no longer fluoxetine 16 hydrochloride. And it falls back to the point that the Court 17 made, if there is a defect, which we obviously strongly 18 dispute, but if there is one, it can only be in the labeling 19 which accompanies the product as designed. In that case, 20 Snawder is at 749 F.Supp. 1473; it's somewhere between 21 Pages 2 and 13 in our brief. 22 JUDGE POTTER: I had your brief here. Maybe 23 I've taken it out of the notebook, because I had it out. 24 MR. MYERS: And that's a Western District of 25 Kentucky case. 38 1 JUDGE POTTER: I think as far as Lilly is 2 concerned, it's not going to be helpful to me to grant 3 directed verdicts or say I'm not going to instruct on certain 4 issues because I might say, "Well, I'm not going to instruct 5 on a design, if I grant your thing there's no design defect." 6 But in my own mind if I do give one on adequate warning, I've 7 in fact given what I consider a design defect instruction. 8 So I think there is evidence from which the 9 Plaintiff can take the case to a jury on the elements needed 10 for products liability whether we call it inadequate warning, 11 design defect, whatever. I mean, there have been testimony 12 that this stuff could cause this, well, did cause this and 13 that Lilly's package insert should have had something closer 14 to what Germany has or maybe even something more than Germany 15 has if they had tested it on certain groups of people. So as 16 far as directing a verdict on product liability theories, I'm 17 going to overrule the motion for directed verdict. 18 MR. MYERS: Judge, just along those same lines, 19 we would for purposes of the record move for a directed 20 verdict on the question of a warning under any theory on the 21 basis that the warning should have extended beyond Doctor 22 Coleman and to the ultimate consumers. Of every product in a 23 drug case, there's no authority for that position. 24 JUDGE POTTER: And this gets back to 25 instructing. Ms. Zettler, I mean, what we're talking about 39 1 here, let's say I agree with Mr. Myers, which I do, he would 2 just be adding to the thing that says, "A drug is defective if 3 it is not accompanied by suitable warnings, instructions to 4 the prescribing physician." I mean, add something just like 5 that. 6 MR. MYERS: Yes, sir. 7 MS. ZETTLER: Well, just to make sure the record 8 is clear, Judge, there's been testimony and evidence in this 9 case that people can now get, from their pharmacists, profiles 10 of side effects of drugs that come with -- the side effects of 11 drugs that they're prescribed and also that a lot of the 12 information that was termed package insert from Germany was 13 prescribing information as well as package insert material to 14 customers. I think there's also been testimony that Mr. 15 Wesbecker was on Halcion and that, you know, he had heard 16 things that made him leery of taking that and that he went to 17 Doctor Coleman and asked to be taken off the drug because he 18 was concerned about it. 19 JUDGE POTTER: Was that the time when Mr. Bush 20 got sick? 21 MS. ZETTLER: I haven't matched up the dates. 22 Or when he threw up on the Prime Minister of Japan or 23 whatever? 24 JUDGE POTTER: Because that's when Halcion got 25 its bad press. 40 1 MS. ZETTLER: I think there is a basis for a 2 warning directly to Mr. Wesbecker. 3 JUDGE POTTER: What warning? I mean, just give 4 me a for-instance of what Lilly should have done. 5 MS. ZETTLER: Well, if they had included it in 6 their package insert it would have potentially gone to 7 patients as well as the physicians, that's our claim. I think 8 what we're saying here is -- again it's probably another 9 instruction issue -- is that we don't need additional 10 information and they're limiting it just to Doctor Coleman. 11 MR. MYERS: Our position, Judge, is that the law 12 is very, very clear throughout the country on this question. 13 JUDGE POTTER: I think it is. On a prescription 14 medication your obligation is to inform the prescribing 15 physician, and I don't know if the way to include it is to add 16 that phrase in the instructions. 17 MR. MYERS: Yeah. That's fine with us. 18 MR. FREEMAN: Yes, sir. 19 JUDGE POTTER: Okay. Because what it does is 20 just eliminate the argument that they should put a sticker on 21 the bottle, "Don't drive cars. If you become nervous, please 22 go see your doctor for some Restoril." 23 MR. MYERS: Judge, there's been a lot of 24 evidence introduced in this case on both sides about events, 25 things that occurred subsequent to the date of the shooting, 41 1 but under the Kentucky Statute 411.3102, we are entitled to a 2 state-of-the-art defense and we move for a directed verdict on 3 that basis in terms of the defect in the product. 4 JUDGE POTTER: What evidence in terms of the 5 defect of the product? What evidence is there in the 6 slightest that anything that is available to this jury on 7 December 8th, 1994, was not available to Lilly on September 8 14th, 1989? 9 MR. MYERS: Well, I'll give you a for-instance. 10 If part of the Plaintiffs' proof, and of course we objected to 11 this coming in, but if part of the Plaintiffs' proof -- 12 attempted proof of establishing liability is simply the sheer 13 volume of reports of events that postdate the shooting, for 14 instance, that certainly that information did not exist prior 15 to the date of the shooting. On the other hand, if you look 16 at the analyses of the clinical trial data that occurred 17 before, during, and after the shooting, that data all existed 18 before the fact. That was all in place. 19 JUDGE POTTER: You're talking about the 1639s? 20 MR. MYERS: Well, my first comment related to 21 the 1639s. In other words, if part of their proof is the 22 volumes of reports that we have received by various and sundry 23 events, whatever they're called, that information did not 24 exist prior -- or much of that did not exist prior to 25 September 14, 1989. On the other hand, in defense of the 42 1 case, obviously there has been evidence about data that was 2 looked at after September 14th of 1989, but the data existed 3 before September 14, 1989, and that is a very important 4 distinction, and we're entitled to a state-of-the-art defense, 5 and we move for a directed verdict on that defense. 6 JUDGE POTTER: All right. Wait just a second. 7 Give me a for-instance. Assuming that your products liability 8 thing goes kind of along my instructions, how does that get 9 woven into -- I mean, how do you -- I mean, you don't grant a 10 directed verdict on a state-of-the-art defense; you give 11 yourself some kind of instruction that you can plug it into. 12 MR. MYERS: Yes, sir. You would -- I think it 13 would be included in terms of the instruction on the warning 14 that we gave the prescribing physician as of -- the 15 sufficiency of the warning as of the time of the prescription 16 or the event. 17 JUDGE POTTER: I'm not real enamored with the 18 idea because I didn't hear anybody from Lilly at any point 19 say, "You know, I might have done differently had I known 20 that." The entire testimony was that the 1639s were totally 21 consistent with a safe drug; any elevated reporting came from 22 the natural publicity associated with a new drug, the natural 23 unfamiliarity associated with a new drug and not from any 24 fault in the drug. But I think that's something that's taken 25 up when we get to actually putting the language in the 43 1 instructions. 2 MR. MYERS: Judge, we would also move for a 3 directed verdict at this time on the Plaintiffs' claims that's 4 sounding negligence for the following reason: In a 5 pharmaceutical products liability case under Section 402A, and 6 specifically Comments J and K that have to do with the giving 7 of warnings, there is essentially a merger in this kind of 8 products liability case of the doctrines of strict liability 9 and negligence. That is, the defect, if any, is in the 10 warning and then the question is whether the warning is 11 adequate or not, and that becomes a merger of both strict 12 liability negligence concepts. And we believe that the 13 Court's instruction as drafted against Lilly -- drafted, 14 excuse me, as to Lilly at this point addresses that and, thus, 15 in our brief contains multiple citations on that question. 16 And for that reason we move for a directed verdict as to any 17 claims sounding solely in negligence. 18 JUDGE POTTER: All right. I mean, what he says 19 makes sense, Ms. Zettler. And just so that you won't think 20 that when I did my rough draft this was the stack of cases I 21 worked from. And it was awfully tempting, Mr. Myers, just to 22 take the case that they gave me, and they actually apparently 23 went and got the instructions that Chuck Simpson had. It's 24 the one that you-all had in your brief this morning. 25 MS. ZETTLER: Tobin? 44 1 JUDGE POTTER: Yeah. Tobin. I mean, Mr. Myers, 2 here I've got something exactly the same case, approved by the 3 Sixth Circuit. Surely to God they couldn't be wrong. We've 4 even got the exact instructions. I mean, I may disagree with 5 you philos -- I mean, I may agree with you philosophically 6 and, I mean, that was my initial approach, but -- and I had 7 this case in front of me when I did this. Wouldn't it be just 8 a smart thing for me to do is -- even if you're right and even 9 if I'm right and it is exactly the same, I'm just doing the 10 same thing twice and shouldn't I just follow it here? I mean, 11 the Sixth Circuit is not the Kentucky Supreme Court, but it's 12 a Kentucky case. Shouldn't I just play it safe and do it 13 twice? 14 MR. MYERS: Well, Judge, putting aside the 15 question of whether the Sixth Circuit is the Kentucky Supreme 16 Court, the law in the few states that I've appeared in is that 17 the Court should instruct, give one instruction on each 18 concept or principle of law. In this case, a pharmaceutical 19 products liability case, notwithstanding the Astra case, the 20 great weight of the authorities throughout the country and in 21 the other cases that we have cited is that in a pharmaceutical 22 case the doctrines of negligence and strict liability merge 23 because of the question of the defect being related to the 24 labeling. And the instruction that the Court has proposed, 25 that is a single instruction, addresses both of those concepts 45 1 in one instruction, which is consistent with the type of case 2 that that -- that this is. 3 This is not, for example, an automotive products 4 liability case where you would probably clearly be entitled to 5 dual instructions, but instead because of the very unique 6 nature of these products, the fact that these products cannot 7 be made differently without changing these products, unlike a 8 lawn mower or an automobile, and because of the fact that the 9 warning is the key question in determining a strict liability 10 claim, the Court should, consistent with the nature of the 11 case and the instruction the Court has proposed and the great 12 weight of the authorities from trial courts here in Kentucky 13 and around the country, give, if you will, a unified 14 instruction on a unified concept. 15 JUDGE POTTER: Let me do one thing. They cite 16 something called Ingersoll-Rand versus Rice for the 17 proposition that, under Kentucky law, when a plaintiff has 18 made a claim of negligence in addition to product defect, a 19 claim of separate negligence -- separate, quote, negligence 20 instruction is warranted, end quote. And let me look at that 21 case and see where they got that idea. 22 Ms. Zettler, I've read Ingersoll-Rand, and I 23 don't know, when these things get up on appeal, first of all, 24 that's one that reversed, so no matter -- whatever they say in 25 there, they reverse it and send it back. So to the extent 46 1 they say he did this right, he did that right, it's more or 2 less dicta; it's not more or less, it is dicta because it 3 doesn't really help very much if you say this instruction is 4 correct but No. 2 is wrong, I'm sending it back. 5 Also, it's the Court of Appeals. And if it's 6 got the wrong warnings and whatnot with it, what difference 7 does it make why it has the wrong warnings, because Lilly 8 didn't test it, Lilly was negligent in testing it, Lilly 9 tested it and then fabricated their results or whatever, what 10 difference does it make, if it's a defective product, how it 11 got there? 12 MS. ZETTLER: Because Lilly's conduct comes into 13 play in a negligence claim, Judge, not in a strict products 14 claim. And we've put on lots of evidence in this case that 15 they had direct knowledge that there were problems with this 16 drug, failed to properly warn, give a warning similar to what 17 they had in Germany, and also failed to properly test this 18 drug in people who would be getting the drug. 19 JUDGE POTTER: But you've still got to prove 20 that it's a bum drug; right? 21 MS. ZETTLER: Sure. But that's why you need 22 both. 23 JUDGE POTTER: If I'm on a bottling line at 24 Coca-Cola and I put blind men on the bottling line, you've 25 still got to prove that the mouse is in the bottle when you 47 1 drink it. That I put a blind inspector watching the bottles 2 as they come out of the cleaning plant doesn't get you there; 3 you've still got to prove that there's a mouse in the bottle. 4 MS. ZETTLER: Well, actually, Judge, under the 5 negligence theory it would be a failure -- I mean, they may 6 not find the product in and of itself defective, they may find 7 the fact that there wasn't a warning as far as an additional. 8 I mean, they said the product is okay, but they knew about 9 this propensity in some people, they didn't properly test it 10 in those people, and they didn't properly inform Doctor 11 Coleman. Under a negligence theory as opposed to a strict 12 theory, the concepts are totally different. 13 JUDGE POTTER: But don't they come together when 14 you've got to prove that the failure to test it caused this 15 thing to happen? They could say they failed to test it, they 16 didn't do all that, but it's still a good product. But the 17 failure doesn't have any effect on this; it didn't cause it. 18 MS. ZETTLER: It may be a good product, like 19 Lilly has been arguing, for 15 million people. But if they 20 knew that there was a certain type of person, for instance, 21 Mr. Wesbecker, which they knew in 1979, and didn't do any 22 further testing to see how that type of person would react to 23 the drug after they had that actual knowledge, that is 24 negligence. And that's a totally different theory. And I 25 think the point here is, Judge, under the law here in this 48 1 state, we have a right to an instruction on both of those 2 theories. And I think from this case and from the Ingersoll 3 case, even though they sent it back, I don't think they sent 4 it back on this issue. I think they said that the negligence 5 instruction was warranted in that case under the theory that 6 if we've pled it and we've put evidence on to support it, that 7 we have a right to both of those issues. Even though, as the 8 Astra case says, there may be some things that overlap. For 9 instance, in that case, the Astra case, the warning issue. 10 Judge, we clearly have evidence in this case 11 that this drug was defective because of an improper warning 12 and improper testing, but we also have evidence in this case 13 that they knew that there was a problem with this drug early 14 on and that they didn't do anything. 15 JUDGE POTTER: But that's proof of how it 16 happened to get defective, not... 17 MS. ZETTLER: Their conduct in this case is 18 clearly relevant under a negligence case, Judge. Their 19 conduct is not an issue under the strict products. 20 JUDGE POTTER: Let's do this. 21 MS. ZETTLER: If I could make one other quick 22 comment. I think if you're going to entertain a motion for a 23 directed verdict on negligence in this case, that it should be 24 done on whether or not we've established that there was 25 negligence, not on whether or not -- 49 1 JUDGE POTTER: I don't much have a problem if 2 you came in and said, "Judge, we want an instruction that they 3 didn't test it properly and as a result of that Mr. Wesbecker 4 shot these people." You know, I would give you one or the 5 other because my current thinking is that they're basically 6 the same. What I'm going to do is let's take that up again at 7 the very end because that really is down to the last little 8 bit. 9 MR. MYERS: All right, sir. That's fine. 10 Judge, we would also move for a directed verdict 11 on the question of causation in this case and this, as I 12 stated earlier, the only, quote, unquote, evidence on the 13 subject of causation has come from Doctor Breggin. And I 14 won't go through each and every reason why that proof fails, 15 other than that as a matter of medical causation, which is the 16 first element of causation the Plaintiffs have to prove, there 17 is no competent evidence before the jury from which they could 18 conclude that Prozac was a substantial factor in causing Mr. 19 Wesbecker to do what he did, and we've cited several cases in 20 our brief. 21 I'd also like to point out to the Court on the 22 subject of causation to the extent that it comes up and we 23 move for a directed verdict on this basis some temporal 24 association or relationship between the time an individual 25 ingests the drug and the time an event occurs is not 50 1 sufficient under Kentucky law in order to establish causation, 2 and we move for a directed verdict on that basis. 3 JUDGE POTTER: That's right. 4 MR. MYERS: Additionally, there has been more 5 evidence than I would care to talk about about possibilities 6 in this lawsuit. And possibility, understanding that the 7 Plaintiff has the burden of proof, not Lilly, the mere 8 possibility that something could happen, including this 9 courthouse moving across the street under the theory of 10 quantum mechanics, truly under Kentucky law is not sufficient 11 to meet the burden of causation. And we move for a directed 12 verdict on that basis because there has been a great deal of 13 testimony elicited on the subject of possibility. And if 14 possibility and temporal relationship are the only things 15 available, are the only thing that there's any evidence about 16 it, it's the Court's responsibility to direct a verdict. 17 Now, on the subject of causation -- and I know 18 there are a lot of arguments about a lot of the points that 19 I've made, but there is one thing that is unimpeachable, 20 cannot be refuted, cannot be changed, and that is the 21 following: In a drug case, the Plaintiff must prove where the 22 warning is the defect, which is what we've got here, that the 23 prescribing physician -- 24 JUDGE POTTER: They don't have to believe Doctor 25 What's-His-Name. 51 1 MR. MYERS: -- had a different warning been 2 given, that the prescribing physician would have acted 3 differently. There are two reasons the Court should direct a 4 verdict on that basis. The first is that Doctor Coleman was 5 squarely asked, "Had the German warning been given, would you 6 have acted differently," and he answered no. Now, the 7 argument may be that he's not to be believed for a lot of 8 different reasons. 9 JUDGE POTTER: They don't have to believe him. 10 MR. MYERS: Put that aside. The fact of the 11 matter is, and as Mr. Freeman said about three times in his 12 opening statement, Mr. Wesbecker was on a sedative. He was on 13 the drug that is addressed in the German warning. Doctor 14 Coleman's testimony aside, it's established in the record by 15 independent competent evidence that Mr. Wesbecker was on the 16 type of drug that they say we should have warned about, and 17 for those reasons their claim fails as a matter of fact and as 18 a matter of law. 19 JUDGE POTTER: What do you say to that, Ms. 20 Zettler? That even if Doctor Coleman had had a proper 21 warning, he would have said, "Gee, I have to prescribe 22 Restoril," and it's just Lilly's luck in this case he was 23 already getting Restoril. 24 MS. ZETTLER: Well, can I back up a little bit 25 first, Judge? 52 1 JUDGE POTTER: Uh-huh. 2 MS. ZETTLER: Again, I just want to make the 3 record clear that when -- these were never brought up as 4 directed verdict at the end of our case, okay, and the 5 agreement that we had was that they would make a direct -- you 6 know, it was never -- it was more like a causation directed 7 verdict or at least that's what we were under the assumption. 8 So I don't have the case law with me, but I know there's a 9 case here in Kentucky that says if you're talking about a 10 warning theory -- and I'll find it for you; I'll bring it in 11 tomorrow if you want -- that if the doctor is so closely tied 12 to the company, the drug company, that you cannot -- you can't 13 say that -- you know, he testifies like Doctor Coleman did in 14 this case that there was -- that it wouldn't have changed 15 anything if there had been some warning, that that is not 16 grounds for a directed verdict. Okay? In other words, in 17 this case Doctor Coleman was hired as an expert, that he was 18 paid by them. If he had been an independent and not been used 19 as an expert in this case -- 20 JUDGE POTTER: You would just be making a 21 different argument. 22 MS. ZETTLER: Well, of course. But I'm saying I 23 have a grounds for this argument and, you know, I will bring 24 the case in tomorrow. 25 JUDGE POTTER: I am going to overrule the motion 53 1 for a directed verdict on the grounds that the Plaintiffs have 2 not made a sufficient showing to take it to the jury on the 3 issue of causation. Just for my own curiosity, if you happen 4 to have that case handy bring it in. 5 MR. MYERS: I'd like to see that one. 6 MS. ZETTLER: I was surprised to find it, too, 7 frankly. It was there, though. And it was especially funny 8 after the deal with Doctor Coleman. 9 MR. MYERS: Finally, Judge, just a handful of 10 things just for purposes of the record. We move for a 11 directed verdict and again renew our motion as to any claim of 12 the Plaintiff which seeks to establish liability through 13 either summaries of -- well, in this case summaries of drug 14 experience reports, either those reported by Eli Lilly and 15 Company or through the Food and Drug Administration through 16 its Spontaneous Reporting System on the same grounds as set 17 forth in our earlier motion. 18 We would also move for a directed verdict as to 19 any claim by the Plaintiffs in any attempt to establish 20 liability through the actions, comments, questions or 21 deliberations of any regulatory body other than the United 22 States Food and Drug Administration, to-wit the BGA, for the 23 reason that Lilly's conduct in this case as relates to the 24 research, testing, and development of Prozac is governed 25 exclusively, without exception, by the United States Food and 54 1 Drug Administration as set forth in our motion on OUS 2 regulatory activity. 3 We would also move for a directed verdict as to 4 any attempt by the Plaintiffs to establish liability under 5 some theory that evidence about suicidality in support of 6 their claim of Mr. Wesbecker's homicidal acts, for the same 7 reasons set forth in our earlier motion. 8 And, finally, we would move the Court at this 9 point in time to reconsider its order on the order of trial 10 and the conduct of a -- potentially the conduct of a punitive 11 damages trial immediately after the liability and 12 apportionment of fault and prior to the consideration of any 13 compensatory damages for the reasons set forth earlier. 14 JUDGE POTTER: The last thing, I've ruled and 15 until it becomes a reality, I'm not going to entertain a 16 motion to change my ruling. 17 MR. MYERS: Those are all the motions for 18 directed verdict, per se. I think Mr. Stopher was going to 19 handle the specific questions about the instructions 20 themselves. 21 JUDGE POTTER: Okay. Ms. Zettler. 22 MR. MYERS: May I be excused for two minutes, 23 Judge? 24 JUDGE POTTER: Sure. You want to take a 25 ten-minute recess? We've been here... 55 1 (RECESS) 2 JUDGE POTTER: Mr. Stopher. 3 MR. STOPHER: Judge, the primary issue I think 4 with regard to the instructions, other than a few semantical 5 things, is the issue that you wanted to reserve for the end. 6 Do you have any objection to discussing that now? 7 JUDGE POTTER: No. 8 MR. STOPHER: Judge, the Astra case, first of 9 all, without hopefully wasting too much time, is a federal 10 court case, which is a different format of instructions. 11 Number Two, and particularly with regard to the instruction 12 issue on this particular item, on Page 540 the Court provides 13 the language that distinguishes the duties in the Astra case 14 from the duties in this case. And, specifically, I'm looking 15 at the language under Head Notes 13 and 14. And up at the top 16 of Page 540 in the second column it says that, "Comment K 17 provides that the seller of unavoidably unsafe products is not 18 to be held to strict liability for unfortunate consequences 19 attending their use. For Comment K to apply, however, the 20 product must be an apparently useful and desirable product. 21 It is the useful or effective nature of ritodrine which 22 Plaintiff has called into question. Kentucky has ruled that 23 Comment K shields manufacturers from liability for highly 24 useful and desirable products attended with a known but 25 reasonable risk. A drug that prolongs pregnancy in order to 56 1 reduce infant morbidity and mortality, if effective, is a 2 highly useful and desirable product. Plaintiff, however, has 3 attacked the linchpin of this theory, effectiveness, with 4 various evidence." 5 Now, the distinction between -- what they say in 6 here is is that if the Plaintiff's theory is lack of efficacy 7 that then there is the potential for a negligence instruction. 8 In our case, the attack on efficacy of Prozac is not at issue. 9 I mean, it is undisputed in this case that Prozac is effective 10 in treating depression. In the Tobin case, or the Astra 11 Pharmaceutical case, the issue was that ritodrine was not 12 effective in prolonging pregnancy in order to reduce infant 13 morbidity and mortality. 14 Secondly, Judge, I would like to cite you to 15 another drug case, and I don't know if this has been presented 16 to you before or not; I do have a copy here. And I can't even 17 pronounce the name of the plaintiff, but it looks to me like 18 it's pronounced Kocimba, K-O-C-I-M-B-A, versus G. E. Searle & 19 Company, 707 F.Supp. 1517. This case, Judge, dealt with 20 precisely this issue. And I will point out first that it 21 applies Minnesota law, but Minnesota has adopted 402A, and it 22 is a pharmaceutical case and the issues are the same, and I'll 23 give you this case. I've marked the sections that deal with 24 this issue. 25 And it says, "Minnesota law has traditionally 57 1 recognized three causes of action based on negligence in 2 products liability cases: negligent design, negligent 3 manufacture and negligent failure to warn," and then they cite 4 their cases that are similar to Kentucky's. "The Court finds 5 Defendant's argument persuasive. The Court elevated the duty 6 to test to an independent cause of action by including an 7 interrogatory on the special verdict form asking whether 8 Searle's negligent failure to test caused Plaintiff's injury. 9 Presumably, the reason that manufacturers are under a duty to 10 test their products is to discover defects or dangers 11 associated with use of the products. Once the manufacturer 12 has discovered a defect or danger, the manufacturer should 13 either change the product's design or manufacturing process or 14 warn customers of the danger associated with using the 15 product. Thus, unless the manufacturer's breach of its duty 16 to test leads the manufacturer to produce a product that is 17 defective in design, manufacture or warning, no injury can 18 result. The duty to test is a subpart of duties to design a 19 product nonnegligently, manufacture a product nonnegligently 20 and provide adequate warnings of dangers associated with its 21 use." 22 Now, it is that language that I think mirrors 23 what the law is in Kentucky, and to give the same instruction 24 twice I believe is error. I think that the duty to test is, 25 as this Court said, a subpart of the duty to design, a duty to 58 1 warn of the dangers associated with its use and that the 2 instruction as drafted by the Court covers that, and to 3 duplicate it is to add undue emphasis, to give the same 4 instruction twice. 5 JUDGE POTTER: That's what I think we're dealing 6 with, Ms. Zettler, is sometimes -- it's undue emphasis. I 7 mean, I could probably say the same instruction 12 ways, but I 8 think it would be error for me to give it 12 different ways 9 because it just makes it look like you've got, you know, 12 10 arrows in your quiver when you come to shoot at Mr. Stopher's 11 client, and that's my concern. You know, a lot of the way 12 these cases turn out is they're looking back over the time. 13 Let me see -- I was trying to get exactly how this issue arose 14 in Tobin. 15 MS. ZETTLER: It arose exactly how it's raising 16 here, Judge. 17 JUDGE POTTER: Okay. It apparently just wasn't 18 that big an issue in the case, and I guess that's a way that 19 makes me think, well, it got through there, why shouldn't I 20 give them both and be on the safe side. I'm ambivalent about 21 it. 22 MS. ZETTLER: It was a big enough issue for them 23 to quote the entire instruction in the case, Judge. And I 24 think it clearly establishes that the law in Kentucky, and we 25 have structured our proposed instruction based on the Tobin 59 1 instruction, is that when a plaintiff has made a claim of 2 negligence in addition to a product defect claim, a separate 3 negligence instruction is warranted. It goes on to say, "The 4 instruction and Astra's duty to warn was a negligence 5 instruction using the standard of ordinary care and expressly 6 explained that phrase to the jury; therefore, Astra's 7 challenge to the separate instruction is rejected." 8 We have put on evidence that there is negligence 9 in this case in addition to a product defect. We are entitled 10 to that instruction under the law of Kentucky. The law of 11 Minnesota is not applicable here; we are in Kentucky. And, 12 frankly, contrary to what Mr. Myers said earlier, I've done a 13 lot of strict product liability work either directly or 14 indirectly in researching issues like this through my work 15 with Ring's office, and I don't know of any state where a 16 plaintiff is not entitled to a negligence product instruction 17 on top of a strict liability instruction if the evidence 18 requires it, and the evidence does. 19 JUDGE POTTER: I tell you what I'm going to do 20 on that. And I hate to be so wishy-washy. What is it, 3:15? 21 When we get through here, I will think about it and then I 22 will get you my final thing at 4:30 and you can pick it up and 23 you'll have it tonight. 24 Let me ask you this, Ms. Zettler. Suppose I 25 came to the conclusion that you're not entitled to both. Do 60 1 you have a choice, a preference? 2 MS. ZETTLER: If we're not entitled to both -- 3 let me make one other point here. If we're not entitled to 4 both as they are presented to Your Honor by us in our proposed 5 instructions, and I would suggest since you seem hesitant on 6 instructing on a strict products theory on testing that we 7 have a failure to warn as a defect and a failure to test as a 8 negligence instruction. That would be -- I mean... 9 JUDGE POTTER: No. You-all gave me two -- 10 you-all gave me some proposed instructions. Suppose you had a 11 choice between your Instruction No. 1 and your Instruction 12 No. 2, what would you take? 13 MS. ZETTLER: You're putting me in a real bad 14 spot here. Again, I want to reiterate I think we are -- we 15 deserve both, okay, under the law we're entitled to both. 16 I'll be honest with you, Judge. I'm not prepared to make that 17 decision because Mr. Smith is the one who's going to be 18 arguing this, and I think I need to conference with him. 19 JUDGE POTTER: Okay. Because let me tell you 20 the way I analyze these two. You are actually putting 21 yourself in a higher duty -- a higher -- you're going to have 22 to prove more conceptually under your Instruction No. 2, which 23 is the negligence instruction, than you would have to prove 24 under Instruction No. 1, which is the strict liability 25 instruction. Because under No. 2, you have to prove that they 61 1 did something wrong, it was a bad product, they were hurt. 2 Instruction No. 1, all you've got to do is prove it was a bad 3 product and they were hurt. But words mean a lot of different 4 things to different people and, quite frankly, if you take 5 Instruction No. 2, it gives Mr. Myers the state-of-the-art 6 defense because then he argues, yes, we used ordinary care; 7 it's not our fault that we couldn't discover this until -- it 8 wasn't discoverable in 1989. But Mr. Smith may be more 9 comfortable arguing one position than the other, and if he 10 wants to pick one instead of the other, I'll be more than glad 11 to do that, because I think... 12 MS. ZETTLER: Are you saying you're not going to 13 consider giving both, Judge? 14 JUDGE POTTER: I said I'd let you know at 4:30 15 today. And I guess on the other side, Mr. Myers, is, you 16 know, what the harm? I'm going to think about it some -- or, 17 Mr. Stopher. 18 MR. STOPHER: I think the harm, Judge, is, first 19 of all, in confusing the issue. I mean, going all the way 20 back to Post versus American Cleaning Corporation, these 21 theories have been merged and, you know, here we are given a 22 negligence instruction and she's even got the same language 23 about testing in her Instruction No. 1. I mean, it's -- in 24 the very first line it says, "A drug is defective if it is 25 improperly tested," and then Instruction No. 2 is, "To 62 1 exercise ordinary care in the testing of Prozac." To mix 2 these instructions in this case, to give two instructions 3 against Lilly that are headed as such is duplicative, it 4 indicates to the jury, as the Court has already pointed out, 5 that we have twice the duties and twice the problems in this 6 case that Standard Gravure and Joseph Wesbecker have. I 7 believe that it is merged. I think that the duty to test 8 under this opinion that I read to the Court where they 9 declined to give both instructions because the duty to test is 10 a subpart of the duties to design, and a duty to warn is good 11 logical reasoning, and I submit that it does invite error for 12 these reasons. 13 MS. ZETTLER: That's not the law here in 14 Kentucky. 15 JUDGE POTTER: Well, I know where you both stand 16 and I just need to get away from you a minute. 17 MR. STOPHER: By the way, Judge, I also went 18 back and looked at Palmour on these issues, and I could find 19 no support for double instructions in here. I mean, his 4902 20 is exactly what the Court has patterned his after. Admittedly 21 it's a mechanical device rather than a pharmaceutical device, 22 but I could find no support in there for giving a dual 23 instruction. 24 JUDGE POTTER: Okay. Is there something else 25 about the instructions before we get down to the semantic 63 1 parts? 2 MR. STOPHER: Yes, sir. Let me just point out a 3 couple of semantical word-type things. In the first phrase of 4 Number One, Judge, are you still looking at the same draft 5 that you gave us the other day? 6 JUDGE POTTER: Uh-huh. 7 MR. STOPHER: I think that in the second 8 paragraph where it says "a drug is unreasonably dangerous," it 9 should read "a drug is defective if it is unreasonably 10 dangerous" or "in that it is an unreasonably dangerous" -- "in 11 that it is unreasonably dangerous." In other words, 12 Paragraph One about defective has got to mirror Paragraph Two. 13 JUDGE POTTER: Have you got one where you marked 14 on it? 15 MR. STOPHER: Yeah. Yeah. Well, let me tender 16 this to the Court. I kind of rephrased it there a bit. But 17 my thinking is, Judge, that a product is defective if it is 18 unreasonably dangerous in that a prudent drug manufacturer, 19 being fully aware of the drug's effect and operation, would 20 not put the drug on the market. Do you see what I'm saying, 21 sir? 22 JUDGE POTTER: Let me read it. Okay. 23 MR. STOPHER: Now, in that paragraph I also 24 tried to take care of the issue that we raised earlier about 25 state of the art. 64 1 JUDGE POTTER: And where you put it in there 2 that says a warning is sufficient if it gives what were known 3 or should have been known by the drug manufacturer? 4 MR. STOPHER: Yes, sir. 5 JUDGE POTTER: Okay. I understand how you put 6 it in. 7 MR. STOPHER: The second little semantical 8 thing, Judge, was down in Subparagraph D, the words, "shooting 9 spree by Mr. Wesbecker." Do you see what I'm talking about? 10 JUDGE POTTER: Yeah. 11 MR. STOPHER: I think "spree" may have certain 12 connotations to certain people, so it probably ought to be 13 "shootings." 14 MS. ZETTLER: In fact, we wanted to change it to 15 "causing Joseph Wesbecker's actions on September 14th, 1989." 16 JUDGE POTTER: Do you have any problem with 17 "causing Joseph Wesbecker's actions on September 14th, 1989"? 18 MR. STOPHER: No, sir; I don't think so. 19 JUDGE POTTER: Okay. 20 MR. STOPHER: And then, sir, the only other 21 minor item is under Number Three, the fault of Standard 22 Gravure. And if you'll look at the one that I submitted, sir, 23 I substituted the word "reasonably foreseeable" for "likely." 24 MS. ZETTLER: That's a different standard. 25 JUDGE POTTER: Well, I think I showed you-all I 65 1 had a list originally, and I picked "unusual risk," "likely," 2 "reasonably foreseeable," "likelihood." And to me, Mr. 3 Stopher, maybe legally it doesn't, but reasonably foreseeable 4 means something different than likely or probable. And I'll 5 just tell you where I got it from, and so -- I think I've said 6 this already, but I got it from Tony Oil versus Johnson on 7 Page 357. I think this is a good analysis, I really do. Who 8 did it? Vance. 9 It says, "The determination of when the exposure 10 to harm has been escalated to the point that liability would 11 attach is difficult and each case must rest upon its own 12 facts. We stress, however, that the evidence of some 13 potential danger or possibility of harm is not enough and we 14 use reasonably foreseeable." You know, what is it, Pfalzgraf, 15 that it's reasonably foreseeable that some tort could happen. 16 And, to me, that just means it's possible or there's some 17 potential. "Only when the risk reaches the stage that the 18 injury to the employee is the likely or probable result of the 19 condition of employment that liability attaches." So I'm 20 going to pick one of those two words, and assuming I'm not 21 going to use that word "reasonably foreseeable," do you have 22 anything about the semantics of -- 23 MR. STOPHER: No. No. 24 JUDGE POTTER: I didn't know if maybe I used the 25 wrong tense or something. That's what I intended to do was 66 1 pick out of that case. 2 MR. STOPHER: And finally, Judge, on the verdict 3 forms, with regard to the order of the parties on the 4 percentage apportionments, since there is a finding that 5 Wesbecker did violate his absolute duty, we think his name 6 should appear first. 7 MS. ZETTLER: Well, Lilly is the only actual 8 defendant in this case at this time, Judge. 9 JUDGE POTTER: It has nothing to do with that. 10 It has to do with the fact that Lilly is one, Wesbecker is two 11 and Standard Gravure is three. I mean, that's just... Okay. 12 MR. STOPHER: And I think that's it, sir. Will 13 the record show that we did tender these supplemental 14 instructions today? 15 JUDGE POTTER: I tell you what, let me do this 16 so you get it in the record (marks on document). 17 MS. ZETTLER: And could you do the same with 18 ours that are attached to our motion, Judge? 19 JUDGE POTTER: Okay. (Marks on document) And 20 would you make sure that your troops file that, because it may 21 get in my files or not get filed. 22 MR. STOPHER: All right, sir. Will do. 23 JUDGE POTTER: Okay. Ms. Zettler, I'll ask you 24 to do the same thing about making sure it gets filed. 25 MS. ZETTLER: Sure. Judge, I'd like to have a 67 1 second to read their proposed instructions since I've just 2 gotten them a few minutes ago and compare them. 3 JUDGE POTTER: Okay. The only thing that is 4 subject to change that I see that's different really from what 5 I did that I haven't ruled on is the introductory paragraph 6 that you've marked there. 7 MS. ZETTLER: Okay. Also, I'd like to point out 8 a semantic problem with the instruction on Wesbecker's, 9 reiterating that we have some serious concerns about that 10 instruction, that I don't think it's the law as far as the way 11 it's framed. 12 JUDGE POTTER: Let me see yours back again. 13 You've put, "It was the duty of Joseph Wesbecker not to 14 intentionally injure the plaintiffs." I mean, he not only had 15 a duty not to intentionally injure them, he had a duty not to 16 negligently injure them; he had a duty not to wantonly injure 17 them. 18 MS. ZETTLER: Well, I don't know why it is that 19 Mr. Wesbecker has an absolute duty and nobody else has an 20 absolute duty. That's the problem we have with the way you 21 have yours phrased. 22 JUDGE POTTER: I mean, I'll take out "absolute" 23 and just put, "Mr. Wesbecker had a duty to not injure or harm 24 any plaintiff in this manner." 25 MS. ZETTLER: Okay. That's fine. That cures 68 1 our first problem with that. Our second problem -- 2 JUDGE POTTER: The absolute gives too much 3 emphasis to it. 4 MS. ZETTLER: We believe it did. Our second 5 problem with that, though, Judge, is you are, in effect, 6 instructing the jury that the man committed an intentional 7 tort. And the issue here is whether or not he had the 8 capacity to commit an intentional tort. You say, "The Court 9 instructs you that Mr. Wesbecker violated this duty and you 10 will find him at fault." I mean, there's got to be some 11 clarification here. 12 JUDGE POTTER: Well, what would you suggest? 13 MS. ZETTLER: What we've proposed. 14 JUDGE POTTER: No. You want me to leave it up 15 to a jury to decide whether he acted intentionally. 16 MS. ZETTLER: Well, I think the only thing that 17 is not in dispute here is that Joseph Wesbecker walked through 18 the door on September 14, 1989, and shot people. Okay? But 19 whether or not he had the capacity to do that and could be 20 held liable for an intentional tort or any other tort is a 21 question for the jury. 22 JUDGE POTTER: To me, we're in the situation 23 where the car is going 150 miles an hour, the guy has had a 24 blood alcohol of 20, and he goes off the road and hits a tree. 25 I mean, there's just no explanation for the thing happening 69 1 other than -- no conceivable explanation other than somebody 2 did something they shouldn't have. 3 MS. ZETTLER: Well, the difference here, Judge, 4 is if you had somebody in that car who was, if you look at the 5 comment to the restatement, that was drinking alcohol 6 unbeknownst to them, was slipped a mickey, in effect, and was 7 driving at 110 with a blood alcohol level of .3 or whatever, 8 then that person would not be liable because that person is 9 not -- they would have to be -- under the case law or under 10 the restatement, they would have to know when they got in the 11 car that they had been slipped a mickey. In effect in this 12 case, Mr. Wesbecker has been slipped a mickey that he was not 13 aware of. 14 JUDGE POTTER: That may have been a poor 15 analogy, but I've heard no testimony in this case that would 16 indicate that Mr. Wesbecker didn't know what he was doing. I 17 mean, he may have been hyped up, he may have been -- Prozac 18 may have caused him to do it, but I have heard no evidence 19 that -- 20 MS. ZETTLER: This instruction is at odds with 21 whether or not Prozac caused him to do this, Judge. If Prozac 22 caused him to do this, you can't instruct a verdict against 23 him, first of all. And second of all, you've heard lots of 24 testimony about this man's state on that day. You've heard 25 that he was looking through people; that he wasn't recognizing 70 1 people, let alone recognizing whether or not they were 2 actually people. He had grimaces on his face that indicated 3 that -- you had a lot of testimony from a lot of people as to 4 what Mr. Wesbecker's condition was on that day. Nobody could 5 say what his state of mind was because nobody could get into 6 his head. He's dead. You also had testimony by Doctor 7 Coleman that three days before he was delusional. 8 So there are a lot -- there's a lot of testimony 9 here that this man was not of a frame of mind to be 10 responsible for any of his actions, let alone an intentional 11 tort. 12 JUDGE POTTER: That one I understand, and I just 13 can't get over the hurdle that no reasonable juror could find 14 he wasn't at fault. I'll take out the word "absolute." I 15 guess every duty to the extent you say it's a duty is 16 absolute. I mean, Lilly has an absolute duty to use ordinary 17 care. Now, have you got the one I signed? 18 MS. ZETTLER: Yeah. Let me double-check. 19 JUDGE POTTER: So I can keep this? 20 MS. ZETTLER: Let me double-check. Yeah. Here 21 it is. Can I take a quick look at this, because I think I can 22 tell right off I have a problem with the proposed rewording of 23 the beginning of Instruction No. 1. 24 JUDGE POTTER: All right. Quite frankly, except 25 to the extent Mr. Stopher's instructions add the phrase "of 71 1 the drug which were known or should have been known by the 2 drug manufacturer," thereby raising the state-of-the-art 3 defense, if I can use that term, I don't see there's any 4 substantive difference between what he said and what I've 5 said. 6 MS. ZETTLER: Well, first of all, I have a 7 problem with "defect condition unreasonably dangerous." I 8 think it's "defective and, as such, unreasonably dangerous." 9 I don't think it's appropriate for this, "it creates a risk of 10 accidental injury." 11 JUDGE POTTER: What, do you want to take out the 12 word "accidental"? 13 MS. ZETTLER: Yeah. And I don't think it's even 14 a risk that -- well, accidental injury is the part that I have 15 a problem with. 16 JUDGE POTTER: Say risk of injury. 17 MS. ZETTLER: I thought we decided that state of 18 the art wasn't appropriate in this case. 19 JUDGE POTTER: I know. What I'm trying to do is 20 just -- as I said, I don't think what he said is different 21 from what I've done except for that last thing. I'm not 22 saying I'm going to change. I'm just listening to what 23 semantics you have with what he said. 24 MS. ZETTLER: Let me finish reading this. 25 (Reviews document) I don't think an ordinarily prudent 72 1 physician has anything to do with this. And if you're going 2 to -- if you're considering putting in something like this, 3 Judge, with a state of the art, then I'd like an opportunity 4 to argue that because I didn't argue it because you ruled. 5 JUDGE POTTER: All right. Well, does ordinarily 6 -- I mean, I don't know. Let me ask you this, Mr. Stopher. 7 If I'm going to go back to mine and say, "A drug is defective 8 if it is not accompanied by a suitable warning -- well, I 9 think suitable warning or instructions takes in the fact that 10 it only goes to a decent doctor. I mean, they can't come in 11 and argue that this would have been a suitable warning for the 12 normal doctor, but when we've got someone that has bad eyes 13 you should have put it in large type. 14 MS. ZETTLER: My impression is on this 15 Instruction No. 1, and I checked it, and I believe that the 16 one that you proposed originally, Judge, in form is the 17 pattern instruction that is normally used. 18 JUDGE POTTER: Well, I think it is, too, but I 19 really put it together out of the cases. And my impression is 20 that probably the pattern instruction puts the definition at 21 the end. 22 MS. ZETTLER: I would suggest that instead of a 23 state-of-the-art type of thing you would take a look at the 24 Tobin instruction where they talk about was in a defective or 25 in a condition they knew was going to be dangerous to the 73 1 user. "You may consider the adequacy of the warnings and 2 instructions for use set forth in the package insert and in 3 the Physicians' Desk Reference." And then it says, "A warning 4 is adequate if it affords fair and adequate notice of the 5 possible consequences of the use of the product." 6 JUDGE POTTER: Well, I mean, do you want more 7 definitions? Suppose I'm going to do what I've done and I'm 8 only going to give strict liability. Do you want more 9 definitions or not? 10 MS. ZETTLER: No. I'm saying if you're going to 11 put in something about -- you know, you're contemplating 12 putting something about state of the art, I would instead urge 13 you to take a look at something -- you know, if they're 14 worried about the warning issue and the thing with the doctor 15 and all that other stuff, I'd urge you to do something a lot 16 more general like what is used in the Tobin instruction. 17 Other than the fact that your Instruction No. 1 doesn't 18 mention testing as a defect, we have no problems with your 19 Instruction No. 1. 20 MR. STOPHER: Where do we call at 4:30, Judge? 21 JUDGE POTTER: What is it, 3:30 now? 22 MR. STOPHER: Uh-huh. 23 JUDGE POTTER: I tell you, I'm going to decide 24 this now, so you can just come over at 4:30 and get the final 25 typed version. Ms. Zettler. 74 1 MS. ZETTLER: Yes, sir. 2 JUDGE POTTER: I am not going to give ordinary 3 care and ordinary -- not give ordinary care and strict 4 liability, but what I am going to do is take your first 5 sentence, "A drug is defective if it is improperly tested or 6 not accompanied by a suitable warning or instructions." 7 MS. ZETTLER: Okay. Just for the record, Judge, 8 if your only reason for doing this, not giving us both 9 instructions, is because you think it's duplicative, then we 10 propose that you give a product defect instruction on the 11 warning issue and a negligence instruction on the testing 12 issue. 13 JUDGE POTTER: Why don't you come get it at 14 4:30. I will be home this evening if somebody finds some -- 15 well, it won't do any good. I will be in my office at 8:30. 16 Why don't we meet here at 8:30 or send somebody from your 17 office here at 8:30, and that way, if there are typos or that 18 kind of thing, I can get it retyped and Xeroxed. 19 MS. ZETTLER: We're going to get them tonight 20 and take a look at them? 21 MR. STOPHER: Come here, Judge? 22 JUDGE POTTER: No. Pick them up in my office. 23 I'm just going to give this to my secretary and have her rerun 24 it, and I'll see somebody here at 8:30 and how about everybody 25 here at 9:15. 75 1 MS. ZETTLER: Okay. 2 MR. STOPHER: Oh, Judge, can I ask a couple of 3 questions? 4 JUDGE POTTER: Oh, I have a yellow sticker here 5 that I need to get... Need hours of argument. 6 MR. STOPHER: Yeah. That's what I was going to 7 be asking. 8 JUDGE POTTER: Ms. Zettler, here Mr. Stopher 9 will go first and Mr. Smith will go second. 10 MS. ZETTLER: Right. Since Mr. Stopher is going 11 first, why doesn't he give us an idea how much time he needs 12 and then I can estimate how much time. 13 JUDGE POTTER: All right. What do you want, 14 Mr. Stopher, just as an opening bid? 15 MR. STOPHER: Well, I think we had two and a 16 half hours for opening statements; am I recalling correctly? 17 JUDGE POTTER: It was either two or two and a 18 half. 19 MR. STOPHER: I think it was two and a half. 20 JUDGE POTTER: Okay. 21 MR. STOPHER: So I would suggest that we do the 22 same here. 23 JUDGE POTTER: Is that all right with Mr. Smith? 24 MS. ZETTLER: That should be fine, Judge. 25 JUDGE POTTER: Okay. And it will be a break in 76 1 the middle, or are you-all going to divide it again? 2 MR. STOPHER: We're going to divide it again. 3 JUDGE POTTER: All right. So two and a half 4 hours per side with a break however the person wants it. 5 MR. STOPHER: Judge, let me ask you this 6 question, also. 7 JUDGE POTTER: And we'll probably take lunch 8 between the two of them. 9 MS. ZETTLER: Can we plan on taking lunch 10 between the two? 11 JUDGE POTTER: Yeah. 12 MR. STOPHER: Let me ask you this question, 13 also. How can we handle the transcript of this trial? 14 JUDGE POTTER: During the closing? 15 MR. STOPHER: Closing argument. 16 JUDGE POTTER: I've never had dailies before. 17 MR. STOPHER: Well, neither have I. 18 JUDGE POTTER: Ms. Zettler, Mr. Freeman, you-all 19 are the big ones. 20 MS. ZETTLER: I guess I need a little bit of a 21 clarification. Does he want to sit there and read the 22 transcript into the record? I think that's inappropriate. 23 JUDGE POTTER: I think what he wants to -- I 24 might create a problem that doesn't exist. What issue are you 25 raising, Mr. Stopher? 77 1 MR. STOPHER: Well, Judge, I just want to know 2 what the rules are, so that they apply equally to both sides. 3 JUDGE POTTER: My thought would be that you'll 4 be able to say, "Reading from the transcript, Mr. Smith said," 5 and identify your quotes as coming from a transcript. 6 MS. ZETTLER: It's been my experience, Judge, 7 when you do stuff like that it raises questions that the 8 jury's going to want to see transcript all over the place. 9 Just forewarning you, it could be a huge mess. 10 JUDGE POTTER: Well, what is your suggestion? 11 Is it that -- 12 MS. ZETTLER: That you argue it like you argue 13 it when you don't have dailies. You argue it as to what you 14 think the evidence has shown. I mean, you know, obviously, 15 it's your decision. 16 JUDGE POTTER: In other words, he would say, "As 17 you-all will remember, Mr. Smith said," and not buttress his 18 argument with -- 19 MS. ZETTLER: "This comes from Day 27 of" -- 20 whatever. Because, trust me, I've experienced this before. 21 All of a sudden you say, well, what did Mr. Smith say on 22 cross-examination, and you're going back and forth and you're 23 going to get this jury probably where you're going to have all 24 these people arguing over who said what and wanting to see the 25 transcript. 78 1 JUDGE POTTER: All right. Let me ask you this, 2 Mr. Stopher. Do you have a preference, just so it's the same 3 for both sides? 4 MR. STOPHER: Just so it's the same for both 5 sides. I just don't want to do it under what I assume to be 6 one set of rules. 7 JUDGE POTTER: That's fair. Because then you 8 wouldn't go to the transcript, and then you wouldn't want Mr. 9 Smith to get up and the jury automatically accept whatever he 10 said. So the idea is someone can say, "As you may remember, 11 Mr. Smith said," whatever, and quote from the transcript but 12 just not give his closing argument imprimatur; is that what 13 you get? 14 MR. STOPHER: Yes. We all know how to spell it; 15 none of us know how to pronounce it. 16 MS. ZETTLER: Can I raise one other question? 17 There's been a videotape floating around throughout this 18 entire trial of Joseph Wesbecker's life history with the 19 narration, et cetera, et cetera. If Mr. Stopher is planning 20 on using it in this -- 21 MR. STOPHER: No. No. 22 MS. ZETTLER: Okay. 23 JUDGE POTTER: Anything else? 24 MR. STOPHER: No. 9:30 we start? 25 JUDGE POTTER: Yeah. Be here at 9:15. Have 79 1 somebody from your office here at 8:30, so if there are... 2 MS. ZETTLER: And we pick them up at 4:30 at 3 your other office? 4 JUDGE POTTER: Yeah. 5 MR. STOPHER: Okay. 6 MS. ZETTLER: Thanks, Judge. 7 (PROCEEDINGS TERMINATED THIS DATE AT 3:50 P.M.) 8 * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 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 81 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