1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 FRIDAY, DECEMBER 9, 1994 15 VOLUME XLIX 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 Jury Instructions........................................ 17 5 Closing Argument by Mr. McGoldrick....................... 21 6 Closing Argument by Mr. Stopher.......................... 45 7 Closing Argument by Mr. Smith............................ 93 8 Hearing in Chambers......................................153 9 Reporter's Certificate...................................162 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 JOHN McGOLDRICK McCarter & English 21 Four Gateway Center 100 Mulberry Street 22 Newark, New Jersey 07102-4096 23 * * * 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Friday, December 9, 1994, at approximately 8:40 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 MR. MYERS: Judge, I first apologize for hauling 11 Nancy over here on this subject, but I was asked to come over 12 here, not to reopen the instruction question but to ask a 13 question, and that is on Instruction No. 4, which is really 14 the apportionment and it contains the verdict form or one of 15 the verdict forms, it references finding two or more entities 16 at fault. And if that's what the Court intended, my question 17 is whether the Court intended for there to be a verdict form 18 which included only Wesbecker and Standard Gravure on it, 19 because that is, under the proceeding instruction, a 20 possibility. 21 JUDGE POTTER: No. Let me tell you why it's not 22 a possibility. And if there's a semantic change that needs to 23 be made, I'll make it. This is not an issue. Because if they 24 don't find Lilly at fault, it says, "Enter your verdict on 25 Verdict Form A and proceed no further." So that is my 5 1 reasoning as to why they'll find nobody at fault because they 2 make a factual finding as to Lilly and were told not to bother 3 with anybody else or if -- I mean, that's my reasoning of it, 4 and it's the way I've done it in other things. I guess I'm 5 not going to put the jury through the exercise of evaluating 6 Wesbecker versus Standard Gravure when it has no legal 7 significance. 8 MR. MYERS: All right. That was the only 9 question that I had, and I apologize for convening this. 10 JUDGE POTTER: No. No. That's what we're 11 supposed to be here for. And Mr. Stopher or whoever is making 12 their argument, you know, can spell that out for them: If we 13 all agree that Mr. Wesbecker is at fault and, you know, you 14 don't get to it unless, or whatever, but that's my logic why 15 that is worded that way. 16 MR. MYERS: The only other thing he asked me to 17 simply say for the record, and this is just a cleanup matter, 18 is that additional instruction that he submitted last night 19 was not to supersede the original instructions that we 20 submitted but was in addition. That's the only thing. I have 21 nothing further. 22 MS. ZETTLER: I want to again raise our 23 objections to the instructions as we set out yesterday. One 24 other thing, Judge, I don't know if this needs to be on the 25 record. 6 1 (OFF THE RECORD) 2 JUDGE POTTER: Go ahead, Ms. Zettler. 3 MS. ZETTLER: We looked again at the -- we 4 looked at the exhibits last night as the Judge suggested and 5 have no objections, no problems with them, except with the 6 book of medical records that was put together there are still 7 some problems. For instance, that newsletter about Prozac is 8 still in Doctor Coleman's records, as well as there now is -- 9 and I don't believe this ever came in in evidence, the 10 coroner's final diagnosis and report, and then I guess there 11 are in a few places interspersed letters requesting 12 information for the coroner's inquest. So we would object to 13 those things going to the jury. 14 JUDGE POTTER: Have you got a list of what those 15 items are? 16 MS. ZETTLER: Yeah. I've got that back in my 17 briefcase. I mean, it will take two seconds during lunch. 18 MR. MYERS: Yeah. Maybe I can short-circuit 19 this. That was brought to my attention last night, and on the 20 question of anything having to do with the coroner's inquest, 21 we will certainly remove those. On the question of this 22 newsletter that was in Doctor Coleman's file, our position, 23 Judge, is that at the time we got the records from Doctor 24 Coleman and he swore or somebody swore and certified that 25 those were the records in his office, that thing was included. 7 1 JUDGE POTTER: That has -- as I see it, that is 2 not the issue. It would be like you call Doctor Coleman, 3 everybody would agree that it was authenticated, he could 4 talk, but the content is objectionable. So the fact that 5 something merely appears in a record -- I mean, let's take the 6 most obvious example, the hospital record says Mr. Myers came 7 in, he had a broken leg. It also says he's covered by 8 insurance. Both of those are authenticated and would be 9 admissible against the hearsay objection. We would let in the 10 part about Mr. Myers' broken leg because it's relevant; we 11 would keep out the part that Mr. Myers has insurance because 12 it's not relevant. 13 Why don't you-all look at that, put a yellow 14 sticker or something on the page that you have any objection 15 to, and we'll take it up either quickly at lunch or quickly at 16 the end of the case, because I don't think anybody is going to 17 refer to those particular pages during the closing. 18 MR. MYERS: Nobody is going to refer to those in 19 closing. 20 MS. ZETTLER: As long as that's the assurance, 21 because our position on that, Judge, is that that was not a 22 part of Dr. Coleman's file on Mr. Wesbecker. 23 JUDGE POTTER: Even if it is a part of Doctor 24 Coleman's file on Mr. Wesbecker, it may not be relevant. 25 MS. ZETTLER: I know. But we have a warning 8 1 issue here, and it implies to the jury that Doctor Coleman had 2 this information directly with regards to Mr. Wesbecker. 3 JUDGE POTTER: Okay. 4 MR. MYERS: I agree with everything the Judge 5 says about resolving it. I would like to resolve it at the 6 lunch break because I don't want to resolve it when the jury 7 is going out. But I think otherwise the evidence is all 8 together on both sides. 9 MS. ZETTLER: I don't have any other objections 10 to anything that they're submitting, but -- let me take that 11 back. There's been a picture of Mr. Wesbecker floating around 12 here with a scowl on his face. Nobody has ever authenticated 13 that thing or put it into evidence, as far as I know. I don't 14 know if that's included in -- 15 JUDGE POTTER: I think you were the only people 16 that tried to put pictures. 17 MS. ZETTLER: Okay. So long as that doesn't go 18 back -- 19 MR. MYERS: I don't know anything about that. 20 JUDGE POTTER: Okay. Let me go over a couple of 21 things. Probably the first night since the trial started, I 22 did what I suppose you-all have been doing is kind of thought 23 about it in my sleep for a while, inordinately thought about 24 it in my sleep. 25 MR. STOPHER: Oh, that's never happened to me. 9 1 MR. SMITH: What is sleep? 2 JUDGE POTTER: I think you-all have been doing 3 that regularly; I have not been doing it to any great degree. 4 One thing I have thought about doing, and I would like 5 your-all's input, is for me with one lawyer from each side and 6 the Court Reporter to address the jury in the jury room and 7 tell them that I've given them these admonitions about not 8 talking to anybody. And I have -- I am sure they have obeyed 9 it, but we're all human. And one reason I'm sure, that they 10 have told me things that have come up during the trial; people 11 have told my sheriff that they knew somebody was a witness, I 12 have discussed it with the lawyers and that was not a problem. 13 But what I would like to do is interview them 14 one last time and then bring them in here one at a time and 15 ask them do they know of any reason that they could not serve 16 as a juror, and that would give them an individual opportunity 17 if one of them has read something, talked to somebody or, 18 like, you know... I guess they haven't gone home and done 19 experiments like the people did up at the Covington fire. And 20 we have an alternate, and if some juror says, "Judge, I want 21 you to know I got drunk Thursday night and spilled my guts and 22 had a long heart-to-heart with my grandmother that's taking 23 Prozac," we can excuse that person now as opposed to finding 24 out later, do it in a very nonthreatening way and in a non -- 25 maybe you can't do it in a nonthreatening way. But does 10 1 anybody have any thoughts about that? 2 MR. STOPHER: Are you talking about before we go 3 in there? 4 JUDGE POTTER: Yeah. Right now. Do it in the 5 jury room. 6 MR. STOPHER: Well, my thought is, Judge, that, 7 Number One, I think it may take a lot of time if we bring each 8 one of them in here. I mean, it's got to take 30 to 45 9 minutes to do 15 people in here. 10 JUDGE POTTER: I was thinking 30 seconds a 11 juror, but go ahead. 12 MR. STOPHER: I have no objection to your doing 13 it out of our presence. I feel uncomfortable about going into 14 the jury room. Maybe it's just such an innate off-boundary 15 place. 16 MR. SMITH: I've been in there off and on, Ed. 17 MR. STOPHER: Then let's go do it, Judge. 18 MR. SMITH: Put on the record smiling and joking 19 Mr. Smith said. 20 MR. STOPHER: I hate to take up the time doing 21 it. I don't have any problem about your doing it in a general 22 way and being very, very specific and inviting somebody to 23 approach you. 24 JUDGE POTTER: My only thought was that if I do 25 it in a general way, no one juror is going to come forward. I 11 1 mean, no juror is going to raise his hand in front of the 2 other 14 and say, "Judge, can I talk to you about something." 3 MR. STOPHER: Judge, I also don't have any 4 problem doing it at the end of the day, after all this is 5 over. But I hate to get that far off track timewise. 6 MR. SMITH: Does the Court have any reason to -- 7 JUDGE POTTER: No, I don't. No. It was just a 8 case here -- much bigger case than this, that some juror went 9 home and did some experiments and it turned out later they had 10 to try the whole thing over again. Quite frankly, I don't 11 watch local television very much, but from what I've seen in 12 the newspaper and whatnot, even if a juror read a newspaper or 13 something, I haven't seen anything that I think would cause a 14 real problem. Okay. Maybe it's just I shouldn't have stayed 15 up last night thinking about something. 16 The exhibits, there's one little thing that has 17 to be taken up at a break. Apparently there's a letter in -- 18 or advertisement or something in Doctor Coleman's medical 19 records that needs to be looked at. You-all have gone over 20 your indexes and everybody's happy with the other side's 21 index. Just -- I think this is no surprise. The alternates 22 will not be excused; they will be kept. I will send them 23 home, admonish them and try to keep them on like some kind of 24 three-hour call that we can get them back. 25 MR. SMITH: In that connection, I had not 12 1 intended on mentioning to this jury in argument that there 2 might be a punitive phase that they might decide, that there 3 might be a compensatory phase that they don't have to worry 4 about damages. I'm assuming that that would be highly 5 objectionable to mention anything of that nature. 6 MR. STOPHER: Absolutely. 7 MR. McGOLDRICK: We would certainly object 8 highly. 9 JUDGE POTTER: Well, my only concern about it is 10 to some extent you wouldn't be telling them the truth because 11 if there is a punitive phase, they will have to worry about 12 it. 13 MR. SMITH: Well, here's two scenarios that 14 could occur that would prejudice each side. Mr. Stopher could 15 get up and say that, you know, "If you find Lilly responsible 16 at all, you're going to have three more weeks." I could say, 17 "You notice that there's no issue on damages. You don't have 18 to worry about damages. That will be decided by another jury 19 at another time. You've got a real simple task here." That, 20 I think, would prejudice Lilly. And I had not intended to say 21 that, and I'm sure -- I just want to have some ground rules on 22 that. 23 JUDGE POTTER: Okay. Neither side is going to 24 talk about any possible ramifications of their verdict. 25 One juror's car didn't start. The sheriff and 13 1 the sheriff's car has taken another juror to pick up that 2 juror because the juror they're taking knows exactly where she 3 lives, so we might be a little late in starting. My secretary 4 is bringing over some extra copies of the instructions. Can 5 anybody think of anything else we need to do? It's two and a 6 half hours. Mr. McGoldrick and Mr. Stopher, I'll ask that you 7 take your recess between the two of you -- well, I say -- is 8 that all right? 9 MR. STOPHER: Sure. That's fine. 10 MR. McGOLDRICK: That's no problem. 11 JUDGE POTTER: Okay. And, Mr. Smith, you can 12 just schedule your recess in your two and a half hours as you 13 feel appropriate. 14 MR. SMITH: In light of my throat and coughing 15 problem -- 16 JUDGE POTTER: If you want two recesses, you can 17 have them. Okay? 18 MR. SMITH: I hope not to use them, and I hope 19 not to use my entire two and a half hours but... 20 JUDGE POTTER: Okay. Anything else? 21 MR. STOPHER: No. 22 JUDGE POTTER: Show time. 23 (HEARING CHAMBERS CONCLUDED; THE FOLLOWING 24 PROCEEDINGS OCCURRED IN OPEN COURT; BENCH 25 DISCUSSION) 14 1 MR. STOPHER: On behalf of everybody, we would 2 request that the Court make an announcement before the jury 3 comes in to the people seated here not to make any noise, not 4 to make any sort of comment of approval or disapproval. 5 MR. SMITH: I've instructed my clients to do 6 that, but I think that would be appropriate, also. 7 MR. STOPHER: The only thing in addition to Paul 8 doing it to his clients is that there are a lot of people here 9 that neither of us knows. 10 (BENCH DISCUSSION CONCLUDED) 11 JUDGE POTTER: Ladies and gentlemen, let me say 12 something to you-all, the members of the audience, before the 13 jury comes in. If you stay here for all of this, it's going 14 to be a fairly long day. Some of you have been here 15 throughout this trial and have become fairly relaxed here, and 16 I'm glad that's happened. But what I want to caution you 17 about, both the people that have been here and the people that 18 are just here for today, is that the lawyers are going to be 19 making their presentation to the jury, their closing 20 arguments, and I'm sure one lawyer is going to say something 21 that you either agree with or disagree with. Okay? And it 22 would be very inappropriate for you to make any noise or signs 23 or anything that would indicate approval or disapproval of 24 what the lawyer is saying. Do you understand what I'm saying? 25 Basically I'm saying keep your part of this very 15 1 formal and quiet because, you know, this is not one of those 2 shows where they ask the audience to clap and then have a 3 meter about which is the loudest. Okay? You-all are -- you 4 have a perfect constitutional right to be here and I am glad 5 you're here, but in exercising that right there's a certain 6 responsibility in which it is that you don't in any way 7 disrupt or interfere with the presentation. Okay? And I just 8 thought I'd mention that because it's been a long trial, and 9 when you're in a place for a long time you tend to become very 10 familiar with it. And even the people that haven't been here 11 before, by 3:00 this afternoon are going to feel like this is 12 their home, all right, or feel very familiar with this place. 13 And I'm glad to be familiar, but don't let it cause you to do 14 something less than be formal and appropriate. 15 Okay. You want to go ahead and bring them 16 around. 17 SHERIFF CECIL: All rise. The Honorable Judge 18 John Potter is now presiding. All jurors are present. Court 19 is now in session. 20 JUDGE POTTER: Please be seated. 21 Good morning, ladies and gentlemen of the jury. 22 Has anyone had any difficulty at all observing my admonition 23 about not giving any information about the case or letting 24 anybody talk to you about the case? 25 Okay. And let me just say that I'm just going 16 1 to ask all of you collectively now that we're here at the end, 2 rather than like I have been doing asking one person 3 individually. And I not only ask you about since last night, 4 but has there been anything that's happened over the weeks of 5 this trial that you think it might make it difficult for you 6 to sit as a juror? And I know some of you have told my 7 sheriff, "Gee, I knew that witness," or something like that 8 happened during the case, and I've talked with the lawyers and 9 they said that is no problem that you knew that witness, that 10 there was no way you knew that witness was going to come. And 11 I would just -- is there anyone that has any thought that 12 something has happened during the, believe it or not, it is 13 ten weeks, that might make it difficult or inappropriate for 14 you to sit as a juror? 15 And I know in a public setting like this it's 16 very difficult for me to ask anybody to speak up, but I assume 17 you would if there was something nagging in the back of your 18 mind. It's really for your benefit as much as anybody's. 19 When this case is submitted to you, you're going to have 20 enough trouble just focusing on the instructions and the 21 evidence without having to remember whatever it is you're 22 trying to -- remembering not to remember whatever it is you're 23 going to put out of your mind. Okay. 24 My sheriff took a quick break. I'm now -- what 25 is going to happen from here on out, let me give you the 17 1 timing and the game plan. I'm going to read you some 2 instructions or rules of law you'll use to decide the case, 3 then each side will make a closing argument. The attorneys 4 have agreed that each side can take up to two and a half 5 hours. What we are planning to do -- and each side can take 6 breaks during that two and a half hours and, of course, no one 7 is obligated to take the two and a half hours. 8 It's sort of the reverse of what happened on 9 opening statements. In this case, the Defendant will go 10 first, take its two and a half hours, and then we'll go to 11 lunch, and then the Plaintiff will take up to their two and a 12 half hours. We may take -- obviously, we'll take at least one 13 break in at least a two-and-a-half-hour section. To assist 14 you while I'm reading these instructions, I'm going to pass 15 out copies. I'm going -- since my sheriff had to do 16 something, I'm going to ask my court reporter if she will pass 17 out these copies of the instructions. Oh, here's Marsha. 18 SHERIFF CECIL: (Hands documents to jurors). 19 JUDGE POTTER: Has everybody got their copy? 20 Okay. The first page is the full title of the case, which 21 lists all of the plaintiffs and the defendant. Second page, 22 "The Court instructs you as follows: Instruction No. 1, Fault 23 of Eli Lilly and Company. 24 "A drug is defective if it is improperly tested 25 or not accompanied by suitable warnings or instructions to the 18 1 prescribing physician. 2 "A drug is unreasonably dangerous if a prudent 3 drug manufacturer, being fully aware of the drug's effect and 4 operation, would not put the drug on the market or would do so 5 with additional warnings or instructions. 6 "You will find Eli Lilly at fault if you are 7 satisfied from the evidence as follows: 8 "(a) That Lilly manufactured and sold the drug 9 Prozac; 10 "(b) That Prozac as manufactured and sold was in 11 a defective condition and unreasonably dangerous; 12 "(c) That Mr. Wesbecker ingested Prozac prior to 13 September 14th, 1989; and 14 "(d) That such defective condition was a 15 substantial factor in causing Joseph Wesbecker's actions on 16 September 14th, 1989. 17 "Otherwise, you will not find Lilly at fault. 18 If you find Lilly at fault, proceed to Instruction No. 2. If 19 you do not find Lilly at fault, enter your verdict on Verdict 20 Form A and proceed no further. 21 "Instruction No. 2: Fault of Joseph Wesbecker. 22 "On September 14th, 1989, Mr. Joseph Wesbecker 23 had a duty not to injure or harm any plaintiff in any manner. 24 "The Court instructs you that Mr. Wesbecker 25 violated this duty and that you will find him at fault. 19 1 "Proceed to Instruction No. 3. 2 "Instruction No. 3: Fault of Standard Gravure. 3 "Standard Gravure had a duty to exercise 4 ordinary care to protect its employees and others from the 5 criminal acts of Mr. Wesbecker if it knew or should have known 6 that such conduct was likely. 7 "If you are satisfied from the evidence that 8 Standard Gravure failed to comply with the above duty and that 9 such failure was a substantial factor in causing harm to the 10 plaintiffs, you will find Standard Gravure at fault; 11 otherwise, you will not find Standard Gravure at fault. 12 "Proceed to Instruction No. 4. 13 "Instruction No. 4: Apportionment of fault. 14 "If you have found two or more entities at 15 fault, you will determine from the evidence and indicate in 16 your verdict what percentage of the total fault was 17 attributable to each of the entities you find to have been at 18 fault, as follows: 19 "Verdict Form B, Eli Lilly, blank percent; 20 Wesbecker, blank percent; the total, 100 percent; or Verdict 21 Form C, Eli Lilly, blank percent; Wesbecker, blank percent; 22 Standard Gravure, blank percent; total, 100 percent. 23 "In determining the percentage of fault, you 24 shall consider both the nature of the conduct of each of the 25 entities you have found to be at fault and the extent of the 20 1 causal relation between the conduct and the damages claimed. 2 "Enter your verdict on Verdict Form B or C as 3 appropriate and proceed no further. 4 "Instruction No. 5: Rendering Verdict. 5 "Nine or more of you must agree upon a verdict. 6 If your verdict is unanimous, it need be signed only by the 7 Foreperson, whom you yourselves shall choose; otherwise, it 8 must be signed by the nine or more who agree." 9 Attached thereto, you're going to find three 10 verdict forms which you may use, if you wish. 11 "Verdict Form A: We, the Jury, do not find 12 Eli Lilly and Company at fault. 13 "Verdict Form B: We, the Jury, find Eli Lilly 14 and Company and Joseph Wesbecker at fault. Further, we the 15 Jury, do not find Standard Gravure at fault. Further, we the 16 Jury, apportion the fault as follows: Eli Lilly and Company, 17 blank percent; Joseph Wesbecker, blank percent; total, 100 18 percent. 19 "Verdict Form C: We, the Jury, find Eli Lilly 20 and Company, Joseph Wesbecker and Standard Gravure at fault. 21 Further, we the Jury, apportion fault as follows: Eli Lilly 22 and Company, blank percent; Joseph Wesbecker, blank percent; 23 Standard Gravure, blank percent; total, 100 percent." 24 Mr. Stopher. 25 MR. McGOLDRICK: I'll go first, Your Honor. 21 1 JUDGE POTTER: I'm sorry. Mr. McGoldrick. 2 MR. McGOLDRICK: May it please the Court. 3 JUDGE POTTER: Mr. McGoldrick. 4 MR. McGOLDRICK: Mr. Smith, Ms. Zettler, all the 5 Plaintiffs and families of the Plaintiffs who were victims of 6 Joe Wesbecker's shooting. 7 Ladies and gentlemen of the jury. 8 9 CLOSING_ARGUMENT _______ ________ 10 11 BY_MR._McGOLDRICK: __ ___ __________ 12 Let me start with how I think you should end 13 this case. Prozac is a safe medicine. It helps or even cures 14 people of a terrible disease. It is very important that you 15 vindicate this good medicine against the false charge that it 16 had anything whatsoever to do with what Joe Wesbecker did in 17 his murders. Now, this has been a long trial. You've been 18 talked at an awful lot, you've heard a lot of evidence, much 19 of it relevant, some of it not so relevant, and now you're 20 going to have one more day of you being talked at and then it 21 will be your time to speak. 22 The Judge has already told you what the rules of 23 law are, which, of course, you must follow. But it's your job 24 to find the facts. And in finding the facts, if I could say 25 one thing to you that I think is just very important, it's 22 1 that you need to look at the whole picture of the facts, the 2 whole context, all the evidence you've heard over these many 3 weeks. You can't just take a little bit here and a hunk there 4 out of context; you've got to look at the whole thing and 5 weigh it as a whole. 6 In one sense we think this case is simple, the 7 questions are simple and the answers simple. What was the 8 cause of the events on that fateful day at Standard Gravure? 9 We think the answer is simple, too; that it was Joe Wesbecker 10 and Standard Gravure's perhaps failure to stop him, nothing 11 else, nothing more, nothing less. Prozac, a good medicine had 12 nothing whatsoever to do with that shooting spree. 13 Now, Mr. Stopher, Mr. Freeman and I have tried 14 to present the evidence as clearly as we can. I know it's 15 been a long time and a lot of evidence and I suspect you've 16 got it all by now without our saying anything else, but we're 17 going to take some time this morning to try to put these 18 things in context. I'm going to speak for a while first about 19 the medicine, and then Mr. Stopher is going to talk about what 20 we think are the most important things in this case, Joe 21 Wesbecker, what made him tick, all the planning he did and the 22 murders he committed. Now, we can't touch on everything that 23 you've heard in this trial and we won't try to; it would take 24 us days and you would probably revolt, so we're going to have 25 to be selective and just touch on some of the things you've 23 1 heard, those we think are perhaps the more important. 2 First, let's try to remember the organizing 3 questions and principles of the case, the questions you have 4 to answer. The Judge has already told you, they're on your 5 charge sheet which you have in front of you, and I'm just 6 going to take what I think are a distilled way to look at 7 those questions and put them up here for just a second. 8 Your verdict sheet, of course, contains this, 9 but as we see it, the real questions were, was Prozac a safe 10 and effective medicine or was it defective and unreasonably 11 dangerous? Second question: Was Prozac a substantial factor 12 in causing this shooting or was Joe Wesbecker the cause? If 13 you distill everything down, I think that's really what this 14 case is about. 15 Now, in looking at it, what are the things I'd 16 stress to you? I just think that there are certain things 17 that really can't be disputed. Mr. Smith has tried, it's his 18 job to do that, and I'm sure you're going to hear at great 19 length this afternoon whatever he has to say, but I think 20 these things are hard to dispute. First, this is a safe and 21 effective medicine. It's already helped millions of people 22 who have what we've all learned in this trial is really a 23 terrible disease. You've heard that and you've heard that a 24 lot, but I just want to take a minute on it, though, because I 25 think it's quite important. 24 1 This disease is so bad that one in eight people 2 who have it will at some time in their life commit suicide. 3 Think about that for a minute. One in eight. One of the 4 doctors told us about people in the emergency room or the 5 hospitals after they're badly burned, you know those awful 6 cases where people get in an accident or something happens and 7 people get terribly burned, burns all over their body, great 8 pain, many of them won't live, and yet that doctor told us 9 from the stand that those people fight, they fight for every 10 minute, for every hour of life. And I think that's really 11 what human beings are. We're all like that. We fight for 12 life. We want to live. Oh, things go bad for us now and 13 then, but we want to live. But these poor folks with major 14 depression in high rates lose that, life becomes worthless to 15 them. Of course, some of them live through it; it's still bad 16 for them. Others commit suicide. It's a terrible disease. 17 Finally, after all these years we now have 18 medicines that can help a significant number of people, and 19 Prozac is one of the very best of those. It's as effective as 20 other antidepressants, and you've heard at length it has a low 21 side effect profile, very good in overdose. Remember, that's 22 important because these people who are suicidal will often 23 overdose on their medicine to try to kill themselves. You 24 can't do that with Prozac, or at least it's very hard. So 25 this medicine is good, it's important, and it treats this bad 25 1 disease and millions have been helped by it already. I think 2 that's clear. 3 Secondly, the FDA charged with the job, has 4 looked carefully at this medicine, and in looking carefully 5 has found that it's a safe and effective medicine, not 6 defective, not unreasonably dangerous, and has approved the 7 labeling, the warning. Now, at times you've heard in this 8 courtroom things that would make it sound like the FDA is a 9 bunch of very compliant patsies who do whatever the drug 10 companies want. Nothing could be further from the truth. 11 They take their job seriously; they're tough taskmasters; 12 they're always asking questions. You've seen that in the 13 evidence. They make the drug companies prove things five ways 14 from Sunday. That's their job. That's what they should do 15 and they do it and, having done it, they found it safe and 16 effective. 17 Since then, by the way, you've also heard 18 evidence that other -- remember the term -- SSRIs, like 19 Prozac, have been approved, the Zoloft medicine from, I guess 20 it's Pfizer, and the Paxil medicine from SmithKline; those 21 SSRIs have been approved, as well. So this medicine and this 22 type of medicine are safe and effective, and the FDA has found 23 it to be that. 24 Now, you've also heard a lot of evidence, 25 perhaps more than you ever wanted to, about all the testing 26 1 that went into this medicine, long, long careful testing. I 2 think the number is that more than 15,000 people were involved 3 in the clinical trials for this medicine. I think that 4 testimony is that that's more than any other medicine of a 5 similar type that we've ever had. You've seen some of the 6 scientists who were involved in that testing. People have 7 come down and sat on that stand and talked with you. Doctor 8 Fuller, you'll remember him, Doctor Wernicke, others. Careful 9 scientists. So we've had that. 10 Since this medicine was approved, some 15 11 million people have taken it, 15 million people, and it's 12 helped them. Now, what has that experience taught us. It, 13 too, has confirmed safety and effectiveness. Think about one 14 aspect of that number for a minute. If 15 million people have 15 taken this medicine, this means that thousands upon thousands 16 and thousands more of doctors have prescribed that medicine 17 for people who are sick, who are right across the table in the 18 doctor's office from them. Those doctors, I'm sure almost all 19 of them and probably all of them, are trying to help their 20 patients. They're caring people, they're doctors. That's 21 their job to try to help people and they're using that 22 medicine, they're prescribing it. They follow these matters. 23 It seems to me that's a particular endorsement of safety and 24 effectiveness. 25 Now, you've also heard a lot in this trial about 27 1 the so-called blue-ribbon panel, the PDAC of the FDA, the 2 Psychopharmacological Drugs Advisory Committee. They've 3 looked at it. Remember one more time, I know you've heard it, 4 but one more time who those people are. These are experts 5 from all over the country, especially specialized knowledge in 6 this field, picked, chosen by the FDA to come in and take a 7 look at a question the FDA wants them to take a look at. Now, 8 that panel has considered the question of Prozac on various 9 occasions and it, too, has found the medicine safe and 10 effective. Recall that on one occasion when they really 11 looked very specifically at what's been charged in this case, 12 whether there's any reason to believe that Prozac could cause 13 suicidality or violence in anybody and what did they find? 14 Once again, you've seen this, but, gee, I think it's 15 important. When they got through all their hearings, 16 everybody came in and presented evidence, the FDA presented 17 evidence, this is what that panel said again. You have that 18 talk paper, it's Exhibit No. 173, you'll remember it, I think. 19 What did they find? "No credible evidence of a 20 causal link between the use of antidepressant drugs, including 21 Prozac, and suicidality or violent behavior." They said a lot 22 of other things in there, too, a lot of them real good, and 23 I'd commend that to you to read. But it seems to me that's a 24 terribly important point for you. That group also looked to 25 see if the warning, the package literature, the instructions 28 1 were adequate, and they said don't change that. It's 2 adequate. Since then, 75 countries total have approved the 3 medicine as safe and effective. 4 You've also heard about studies, lots and lots 5 of studies by Lilly, by others, showing safety, showing 6 effectiveness, showing broadly safe across a range of people. 7 You've heard specific testimony. You've heard Doctor Greist, 8 remember him, the fellow from Wisconsin, and Doctor Tollefson; 9 they talked about use of the medicine in the agitated- 10 depressed group and how it was effective and safe in that 11 particular group. You've also heard Doctor Greist and Doctor 12 Granacher talk about how it's used and useful without problems 13 in patients who are schizoaffective, broadly used in people 14 who are depressed, have depressive disease, safe and 15 effective. 16 You've also heard a lot of evidence about how it 17 doesn't cause suicidality or violence in lots of people. I 18 can't go through it all with you now. You probably remember 19 Doctor Fuller coming down and telling you about that at 20 length. You won't remember all the studies, but just reeling 21 off a couple, there was Doctor Cacarro, who studied in 22 patients with impulsive-aggressive behavior. What happened? 23 Prozac decreased aggression. 24 Doctor Cornelius, studied in patients who were 25 aggressive. Prozac reduced aggression. It didn't cause 29 1 aggression; it actually reduced it. 2 Doctor Fava, looked at anger attacks in 3 depression, found that Prozac helped it, reduced it. Many of 4 these studies were careful, controlled, double-blinded 5 studies, the kind of science -- the way you really test to see 6 if something's happening. And what is it? It's all here in 7 abundance, and it shows safe, effective, not defective, 8 certainly not unreasonably dangerous, not causing suicidality, 9 not causing violence, the warning more than adequate. 10 Now, what have the Plaintiffs said in the face 11 of all of that evidence and all of that study? You've heard 12 it. You've heard it at length. You'll hear it again this 13 afternoon. But, with respect, I think it amounts to a bit 14 here, a hunk here, out of context, not the whole picture. 15 Now, I'm going to talk for a minute about some 16 of the things that the Plaintiffs have talked about, but there 17 isn't time to talk about all of them, and we've come to a 18 place in the trial that I want to mention it to you. Up till 19 this point, pretty much anytime one side stood up, the other 20 side would have a chance to stand up afterwards. We stood up, 21 they have a chance to stand up afterwards to bring to you what 22 we thought was the point. At this point, I guess because 23 somebody has to go last, that won't happen. I'll speak with 24 you, Mr. Stopher will speak with you, and then Mr. Smith will 25 speak, and we won't have a chance to stand up and talk again. 30 1 You'll have to supply -- if there are answers to what Mr. 2 Smith raises, you'll have to supply, based upon your knowledge 3 of the evidence, what that answer is because we won't have a 4 chance to get up and say it. It all resides with you. 5 Whatever I say, whatever Mr. Stopher says, whatever Mr. Smith 6 says, it's yours to decide, whatever we may say. 7 And, you know, on this business of taking things 8 out of context, it can happen; it's easy, I think. I remember 9 the first time there came up in this trial the subject of -- 10 remember the cats that hissed and the dog that bit? Gee, you 11 know, when you first hear that you say, "Hey, wait a minute. 12 That happened, it sounds like it's relevant." But then I 13 think you heard more later, and it was put in its whole 14 context, and it didn't seem what it first seemed. Remember, 15 the whole picture. 16 Let's go to that one for just a minute. You 17 recall that there was in the testing part of the development 18 of Prozac that period where you did have some examples of the 19 animals, the cat, a couple of the cats and the dog being 20 upset. Well, Doctor Fuller came down and talked to you about 21 that. He said, you know, the FDA requires you to give toxic 22 doses to these poor animals; they're being tested, and it's 23 not surprising that they might react in a test situation where 24 you're actually having, because the FDA requires it, to hurt 25 them, they'd react that way. As Doctor Fuller put it, if a 31 1 dog got hit on the road, we'd feel sorry for that poor dog, 2 but we'd also recognize that that dog might bite if we went 3 over towards the dog because the dog was hurting. So we 4 shouldn't be too surprised about that. 5 And then, then what happened, Doctor Fuller came 6 in and he brought in all of those studies, I remember because 7 I had to get down on my knees and write them all down. And 8 I'm not going to take you through them again, but he came in 9 and he showed you -- here's the easel from that day -- all 10 those studies. Muricidal rats, remember the rats that liked 11 to kill mice, and they stopped doing it. And people from all 12 over the world, Italy, France, all over the place trying 13 various different kinds of tests to show that in animals what 14 happens if you give the medicine. Well, what happens is they 15 get less aggressive. In specific controlled tests to find out 16 what happens, they get less aggressive. 17 There's some part of that which I think is 18 really interesting because in lots of things in life there's 19 evidence on one side, sometimes a lot of evidence, but there's 20 a little bit of evidence on the other side, and we find in 21 favor of the most evidence. And in science it's that way, 22 too. But this was all consistent, Doctor Fuller told us it 23 was all uniform. It all went in the same way. That's 24 remarkable. Independent scientists all over the world, ladies 25 and gentlemen, just nothing to the claim that Prozac causes 32 1 violence or suicidality in any experience with animals shows 2 that. 3 Now I want to come to another subject, and 4 that's BGA and the Germans. We heard a lot about that. Mr. 5 Freeman in his opening talked to you about that and he -- he 6 said, you know, Mr. Smith, I'll bet is going to spend two 7 weeks on that. And he was right, Mr. Smith spent two weeks on 8 it. And Mr. Freeman said to you, as well, that in the final 9 analysis the BGA events have nothing to do with this case, and 10 he was right on that, too. 11 Now, let's look at it just briefly, not two 12 weeks, two minutes. The BGA raised a question, like 13 regulatory agencies are supposed to do and do all over the 14 world, and they raised a number of them. One of them that was 15 said was, "Gee, it looks like you have a lot of suicide 16 attempts in your clinical trial in the Prozac group." 17 Remember that, sixteen, one and zero? And there were sixteen 18 in the Prozac group, and the BGA said, "What about that?" A 19 proper question to ask. Well, it was suggested here that that 20 shows that Prozac causes suicidality. But you remember Doctor 21 Wernicke came in and said, "You have to look at the whole 22 picture; you can't just look at that number alone. You have 23 to look at how many people were taking the medicine for how 24 long." 25 Remember, he makes it easy for me to remember, 33 1 he talked about home runs, the baseball player who hits home 2 runs, and if you saw one baseball player who hits ten home 3 runs and another who hits two, you might say, "Well, the one 4 who hits ten is a better hitter of home runs." But that's not 5 the whole story. If you knew that the one who hit ten home 6 runs had to play five hundred games to do it, and the one who 7 hit two hit it in three games, you'd say, "Aha, that's a 8 little different." So you have to look at those numbers. 9 Now, it's also been -- by the way, that information is all 10 provided to the BGA, the analysis is provided to the BGA, the 11 BGA approves it as safe and effective, and Prozac is widely 12 used in Germany today. 13 It's been suggested here also that Lilly somehow 14 hid the BGA concerns from the FDA. Ladies and gentlemen, 15 that's not right. Lilly told the FDA at least twice, granted, 16 there was some confusion about the timing and all of that, but 17 if you look at your Exhibit 67, it's clear as a bell Lilly 18 told the FDA about that and, of course, the FDA approved. 19 There was another point raised. The Plaintiffs 20 talked about different labeling in Germany, different 21 instructions. First of all, different countries have 22 different instructions, that's not unusual. Second, the 23 labels, you have them, Exhibits 173 and 411, if you look at 24 them, they're not really different. In the U. S. label, Lilly 25 mentions in at least four spaces, Doctor Greist and Doctor 34 1 Tollefson told you they're the right spaces, talked about 2 agitation, anxiety, nervousness. The real difference is 3 language that's different suggesting in the German label the 4 possible use of a sedative in an agitated patient. But our 5 witnesses came in and told you clearly that American 6 psychiatrists know about that. They also know that it's not 7 always the right idea to give a sedative. That decision in 8 America is left up to the doctor and the FDA approves the 9 labeling that does that. 10 Fourth, remember that Joe Wesbecker -- and 11 remember, I'm not talking much about this case; I'm talking 12 about the medicine, Mr. Stopher's going to talk about this 13 case, but I'll talk about it once here. Joe Wesbecker was 14 getting a sedating drug, he was getting Restoril. The 15 Plaintiffs argue that's somehow not what he should have been 16 getting, but they can't deny it was a sedative. 17 Fifth, and I think, myself, that this is just a 18 knockout punch on this point. You heard Doctor Coleman come 19 in and tell you that if the FDA label were different and were 20 the same as the German label, it would have made no difference 21 whatsoever to his treatment of Joe Wesbecker. So what do we 22 make of all this BGA stuff? I suggest nothing much. Did the 23 BGA ask questions, yes; did Lilly answer the questions, yes; 24 was the information provided to the FDA, yes; did the BGA 25 approve the medicine, yes; did the FDA approve the medicine, 35 1 yes; does any of this have anything to do with the murders 2 that Joe Wesbecker committed, no. 3 Go to another one. There was this business 4 about spontaneous reports. You probably remember various 5 charts, Exhibit 120 this one is, that Mr. Smith's shown around 6 a lot, showing apparently greater incidence of hostility -- 7 hostility on the spontaneous reports and other charts. These 8 are FDA charts, remember. And trying to make that out as 9 showing that there's somehow proof of violence or suicidality, 10 but when the people who know about this came in, they 11 explained that that's not so. Again, the whole picture and 12 not just the little piece of it. You've got to look at all 13 the numbers; how many people; how long; what circumstances. 14 The FDA looked at this carefully. This was their chart. They 15 brought it to the PDAC. They looked at it carefully, too, and 16 what did they find, after looking at it, match those two up? 17 They looked at the charts, they looked at all the evidence, no 18 credible evidence of a causal link between Prozac and 19 suicidality or violence. So the people who know and use those 20 reports looked at them and found them and decided that. 21 Remember, Doctor Tollefson said something that 22 was kind of funny, actually. He talked about something about 23 the Weber effect, and Doctor Weber discovered it. And that is 24 with any new medicine you get a bunch of spontaneous reports 25 in the beginning. He analogized it to a new restaurant. 36 1 People talk about it in the beginning, but then don't talk 2 about it so much later, and then the spontaneous reports trail 3 off after the medicine isn't new, suggesting no causation. 4 And Doctor Tollefson told us that the world 5 didn't end here in 1991, it's continued. And what's happened, 6 you recall, those reports have gone down just the way you'd 7 expect them to. This chart also -- I'll pick it up again, I 8 guess, looks like a lot on this piece of paper, but it's 20 9 reports per million. If you made this -- if this is 20, I 10 don't know how high a million would be, but it would be real 11 high, and is it really that unusual to find that? Remember, 12 Doctor Tollefson told us about the statistics in an American 13 city of one million people you'd expect about eight-six 14 homicides a year. It's a frightful fact, but it's true. 15 These numbers aren't that surprising. 16 There was talk about agitation, anxiety and 17 nervousness, lots of talk about that. Let's remember a few 18 things. One, those are part of the disease, depression. Two, 19 they would occur in depressed patients, but what did Lilly do 20 about this? First of all, it told physicians about it. It's 21 in the package literature, it's in the PDR. You heard Doctor 22 Greist and Doctor Tollefson, they talked about it, it's right 23 there. No hiding of it. It's well known. The events were 24 reported, somehow suggested by Doctor Lord that they were 25 downplayed. They were reported. Lilly didn't ignore any 37 1 issue there. Remember, Doctor Tollefson and Doctor Greist 2 came in and told you about the study they ran. Took agitated, 3 depressed people, lots of depressed people are agitated, you 4 remember that. They took that group and they tried them with 5 Prozac and with something else, and what did they find. They 6 found that the Prozac worked better. They found that suicidal 7 thinking in that group, actually they got better with Prozac. 8 It just doesn't make sense. Mr. Wesbecker was 9 agitated and anxious many times in his life, probably because 10 of his mental illness. Because a person is agitated or 11 anxious doesn't mean that he'll become violent or suicidal. 12 Could agitation explain the planning, the purchasing of 13 firearms, and all the rest that you've heard about done by 14 Mr. Wesbecker in the months and years leading up to his mass 15 murder when he wasn't even taking any -- this medicine? No, 16 of course not. 17 One other thing that the Plaintiffs raised, 18 Doctor Breggin -- Doctor Breggin pointed to a few instances 19 where patients who were taking the medicine were suicidal and 20 somehow said, aha, they were taking the medicine, they became 21 suicidal, the medicine must have caused the suicidality. But 22 that's not right. Remember that suicidality is part of the 23 disease depression. Remember, also, that Prozac, like all 24 antidepressants, probably works in about 70 percent of the 25 people. It doesn't work in everybody, so it wouldn't be 38 1 surprising that someone who's taking Prozac would become 2 suicidal. But it's the disease, not the medicine that's 3 causing it. 4 I like to think of it like this. Suppose I have 5 a bad cold, it's a bad cold and I take some cough medicine, 6 and then later my cold goes on to pneumonia. Now, nobody 7 here -- nobody here would think that the medicine caused the 8 pneumonia; it's the cold that caused the pneumonia. It's the 9 disease, not the medicine, and that's what's true here, too, 10 in this case. How many witnesses got up here and told you 11 that this disease is such that people are suicidal, sometimes 12 violent, it happens with these sick folks. And the real 13 science, the controlled studies which compare, they show that 14 it just doesn't happen. 15 Now, I want to take a minute more and look at 16 the quality and the quantity of the evidence on the medical 17 issues that we put before you, and I'm going to try to use 18 these, if I can, to help a little bit. First of all, what 19 were the things that the people who came in here to talk to 20 you said. Once again, they said Prozac is safe; Prozac is 21 effective; it doesn't cause violence; it doesn't cause 22 suicide; it's not defective. Remember, this is part of your 23 charge, your instruction. It was safe and effective, it was 24 not defective. It certainly wasn't unreasonably dangerous. 25 The information to doctors was correct and adequate, and 39 1 Prozac had nothing whatsoever to do with what Joe Wesbecker 2 did. 3 Now, I want to talk for just a minute about 4 those witnesses, but before I do, let's just, without talking 5 about them, consider what the sources of that information was, 6 what was that based on, where did it come to you from. And it 7 came from lots of places, more than I can list here, but it 8 certainly came from these places. The FDA and BGA and 75 9 countries approved it; the panel, the PDAC approved it, looked 10 at the evidence, said no suicidality or violence and the 11 warning was good. Doctor Granacher, you remember him; Doctor 12 Greist, he came in, talked to you about it, also talked about 13 Mr. Wesbecker; Doctor Thompson was here; Doctor Fuller, you 14 remember him; Doctor Coleman, of course, who treated Joe 15 Wesbecker, whom even Doctor Breggin said was probably in the 16 best position, he said those things, too; Doctor Wernicke came 17 in; Doctor Tollefson came in. 18 On the other hand, what was the evidence and 19 what were the sources of the evidence on the other side. 20 Well, there was Doctor Breggin, and I suggest to you it was 21 primarily Doctor Breggin. There was, of course, Doctor Lord 22 and Doctor Brown, and they came in and they said some things 23 that were critical about the way the tests were conducted. We 24 think our witnesses responded to those and answered those. 25 But, remember, neither Doctor Lord nor Doctor Brown offered an 40 1 opinion to you about violence in Joe Wesbecker. Doctor 2 Breggin did. 3 Now let's talk about Doctor Breggin for just a 4 second. You're going to have to make up your own mind about 5 him and it's your job to do it, but I'd offer just a few 6 thoughts. He's done no studies. That's not what he does. 7 He's not board certified, as many of our witnesses were. He 8 points to no study linking Prozac and murders, the kind of 9 conduct you've seen here. You'll find none in all your 10 evidence. You'll look in vein for it. He talks a lot about 11 serotonin in animals, but unlike true experts in those 12 subjects, like Doctor Fuller, he's not really an expert in 13 those matters. There's another thing about him. Doctor 14 Breggin, I think he was open enough about it, doesn't really 15 like medicines. He doesn't like medicines for treatment of 16 people with conditions like this. He's against them. Oddly, 17 curiously, even he of all people doesn't think that the FDA 18 should withdraw this medicine and he even lets his patients 19 stay on it if they want to. But that says something about 20 where he's coming from, if you will, in his views. 21 Now, there's another thing and I just -- ladies 22 and gentlemen, I don't know what to make -- I truly don't know 23 what to make of all that business about Doctor Breggin having 24 written that it's good for little children to have sex with 25 each other and the article in Penthouse magazine about how 41 1 American psychiatry caused the holocaust. I'll leave that up 2 to you to measure that stuff. But one thing I think is clear, 3 Doctor Breggin is not in the mainstream. He's on the fringe 4 of American psychiatry, science and medicine, and I think this 5 case shows that, because if you match what he said against 6 these folks, it's not a match. 7 Compare Doctor Breggin for a minute with someone 8 like Doctor Ray Fuller. Doctor Ray Fuller, he's really an 9 extraordinary man, I think. As a young man, he worked, you 10 recall, in the wards in the state mental hospital. Before 11 they had medicines to help these folks, it was kind of a 12 bedlam. He dedicated his life to trying to find medicines 13 that would help people like this. Unlike a lot of us, he 14 succeeded. He really has done it. Became a world-renowned 15 scientist, won national awards, got honorary degrees, all 16 that, and I think you'll agree he's a fine man. And although 17 Prozac was certainly a group effort, as much as anybody, he 18 probably was the father of Prozac. 19 You'll have to judge our witnesses yourself, but 20 we tried to bring highly knowledgeable, expert, honest 21 witnesses, people who've actually done the science; careful, 22 caring physicians who treat patients, board certified, award 23 winning and all the rest. First-rate scientists like Ray 24 Fuller and Gary Tollefson; careful and precise people like, 25 remember, Joe Wernicke, very careful in running these clinical 42 1 trials. Doctors who are highly experienced in treating this 2 kind of patient, like Doctor John Greist, the fellow from 3 Wisconsin. Psychiatrists experienced in helping us understand 4 how violence like Joe Wesbecker's occurs, like Doctor 5 Granacher. Stacked up against them, I don't think Doctor 6 Breggin's opinion does it. These people pointed to a range of 7 subjects. They pointed to experience, they pointed to 8 studies, they pointed to medical literature, and what did they 9 all come out and say based on that? Those are what those 10 witnesses brought to you, different ones, different things, 11 but that's what they brought to you. 12 Now, you know, at the beginning of this case, 13 Mr. Smith said that Lilly would not defend this product. I 14 don't know why he said that. Lilly has defended this product. 15 We're proud of this product. We're proud that it's safe, that 16 it works to help people. We're proud of the men and women who 17 invented it and caused it to be able to help people. We've 18 brought witnesses down from Indianapolis, a number of them, 19 the actual people who did it, who were involved, and you've 20 heard, of course, there are thousands more who were involved. 21 With respect, this evidence is just 22 overwhelming. How could you possibly say, how could you 23 possibly say, in light of all this, that Prozac was defective 24 or unreasonably dangerous. It's beyond me. How could you 25 possibly say that a reasonably prudent drug company wouldn't 43 1 put this medicine out, this helpful medicine that's said to be 2 safe by all these people and all these tests. But you should 3 ask, correctly, if it wasn't Prozac that caused this tragedy 4 here, what did. We know what did. It was Joe Wesbecker. Joe 5 Wesbecker and his disease planned out murders. Now, mass 6 murders have occurred before, ladies and gentlemen, they've 7 occurred throughout human history. They occur today and, 8 unfortunately, it's probably in the nature of human beings 9 that they'll occur in the future. But Prozac didn't have 10 anything to do with that, and it had nothing to do with this. 11 Now, after a break, Mr. Stopher is going to talk 12 to you a little bit more about the facts of this case, not all 13 these other things that many of which were tangents and blind 14 alleys, that took a lot of time in this trial but didn't 15 really have much to do with it. Mr. Stopher is going to talk 16 to you about that part. 17 I want to thank you now for your attention, and 18 I do that very sincerely. This has been a long, arduous 19 trial. You've had to sit in that box for a long time, be 20 talked at and not be able to say anything back, and I'm sure 21 it's been very frustrating. But it is very important. It is 22 terribly important to the parties in this case, the folks out 23 here, of course, to Eli Lilly, but more than that, to the 24 people in this country and the world who need these good 25 medicines, that you decide this case fairly and correctly. It 44 1 would be a terrible shame if anybody took away from your 2 verdict a notion that that medicine should not be used because 3 of a false charge that Joe Wesbecker did this because of 4 Prozac. He didn't. For all of us, for all of them, I thank 5 you for your attention, and for deciding this case as the way 6 you think it ought to be done. Thank you, ladies and 7 gentlemen. 8 I think, Your Honor, if we could take a break 9 now. 10 JUDGE POTTER: Ladies and gentlemen, we're going 11 to take a 15-minute recess. As I've mentioned to you-all 12 before, do not permit anybody to speak to or communicate with 13 you on any topic connected with this trial; do not discuss it 14 among yourselves; do not form or express opinions about it. 15 We'll take a 15-minute recess. 16 (RECESS) 17 SHERIFF CECIL: The jury is now entering. All 18 jurors are present. Court is back in session. 19 JUDGE POTTER: Please be seated. 20 Mr. Stopher. 21 MR. STOPHER: May it please the Court. 22 Mr. Smith, Ms. Zettler, Mr. Foley. To the 23 families of the victims of the shootings at Standard Gravure, 24 and to you, ladies and gentlemen of the jury, good morning. 25 45 1 CLOSING_ARGUMENT _______ ________ 2 3 BY_MR._STOPHER: __ ___ _______ 4 On September the 26th, we began this long 5 process. We've had 47 days of trial. By my count, we've had 6 75 live witnesses from the witness stand. We've heard 22 7 depositions read, and there have been 411 exhibits given to 8 you. On behalf of every one of us, on behalf of both sides of 9 this case, on behalf of the court system, I want to thank each 10 and every one of you for what you've done. You have been here 11 diligently doing that task, which has not been easy. Some of 12 you have been ill; some of you have suffered great 13 inconvenience. Probably none of us will ever know the amount 14 of trouble and turmoil that it's caused in your lives. And on 15 behalf of everybody, I want to thank you for the energy and 16 the dedication that you've given to this system. Without you, 17 it would not work. 18 I will tell you that from time to time I, like 19 everybody else, read in the newspapers and see on television 20 or whatever, comments that are sometimes critical of our court 21 system. They're too slow, it doesn't work anymore, critical 22 of lawyers and sometimes even judges, if you'll pardon me, 23 Your Honor. But to those cynics I say, "Look at this trial." 24 For 200 years in our country, lawyers have been standing at a 25 railing just like myself and arguing cases, perhaps not as 46 1 large as this, before a learned and good judge like Judge 2 Potter, in which witnesses have testified and in which there 3 is a real dispute. I say to everyone that is critical of that 4 system that it still works, and I point to you as the reason 5 that it works. I will tell you that no matter who wins and no 6 matter who loses, no matter what your verdict in this case, 7 there is no disgrace and no dishonor to anyone who has been 8 here; there is only honor. 9 I want to end my participation in this trial 10 exactly where I began. I want to tell you that I feel deeply 11 for the victims of the terrible, awful crimes that occurred on 12 September 14, 1989. Every time I'm reminded of it, it drives 13 a stake through my heart. I feel for these good people, as we 14 all do, nothing but sympathy. They have my love and my 15 support and the support of our city. Not a one of them 16 deserved anything at all that happened to them. Not one hair 17 on their heads should have been disturbed by Joseph Wesbecker. 18 I remember precisely where I was when I heard it on the radio 19 that day, just like the day that President Kennedy was shot. 20 I'll never forget it, nor will they. I would give anything 21 that it had never occurred. But we are here today not to 22 express our sympathy, we are here to make a decision, as you 23 have been authorized to do based on the facts and on the law, 24 not based upon my emotional reaction or yours or anyone 25 else's. 47 1 It's an interesting picture to stand here and to 2 look at you. I will tell you that if we were going to build a 3 new bridge across the Ohio River, which is a matter of some 4 debate, as you know, we would probably assemble a group of 5 expert engineers to design it and to specify the materials, 6 the strengths and so forth. If we were going to try to design 7 a new audio system that would work all the time in this 8 courtroom, we'd probably get some audio engineers together, 9 hand picked because of their experience and their expertise. 10 But I will tell you that you have been selected to decide this 11 case because you are people selected to represent our 12 community. You're not here because you know anything 13 particular about homicide, suicide, violent assault or Prozac. 14 You are here because your backgrounds and your education, your 15 jobs, your ages, what you know about is different and varied, 16 just like our community is. It is in your hands that we put 17 this case. 18 In analyzing all of this mass of material that 19 has come in, witnesses, documents, scientific reports, 20 psychiatric diagnoses, half of the things I've heard I 21 couldn't begin to pronounce and surely can't spell. I 22 couldn't even spell mental illness the other day. But we are 23 here to ask you to decide this case based upon your common 24 sense, based upon your life experiences, what you think is 25 right and wrong, the way you evaluate people, your experience 48 1 with human nature and with human behavior. We're not looking 2 for an expert opinion; there have been enough of those. I'm 3 here to ask you to use your own good judgment, what my 4 grandfather used to call walking-around sense. I'm here to 5 ask you to use your values, to use your sense of what's fair 6 and what's right and what's true to character and what's not 7 true to character. Your logic, not someone else's; your 8 experience, not what you hear from lawyers; your values 9 applied to these issues in this case. A famous judge once 10 wrote, "A jury verdict is the expression and the perfection of 11 common sense." 12 In this case, and in making my remarks, I want 13 to speak to you about only one thing. I want to speak to you 14 about cause. In the jury instructions that have been read to 15 you and you now have a copy of those, there are a couple of 16 key phrases with regard to cause, and I'd like to write them 17 down. The first one is, "If you are satisfied from the 18 evidence..." The standard in this case is your satisfaction 19 from the evidence. The second phrase that I would like to 20 write down which relates to that, "...a substantial factor in 21 causing..." I would like to discuss for just a few moments 22 those key phrases. In deciding what is a substantial factor 23 and in deciding when you are satisfied from the evidence, I 24 invite you to use your common sense, your sense of logic in 25 giving those phrases meanings. There are no definitions of 49 1 those phrases contained in the jury instructions. Those 2 definitions come from you. 3 Now, let me focus on those for just a moment. 4 In deciding what's a substantial factor in causing what Joseph 5 Wesbecker did, does that mean that it is anything that might 6 have contributed? Does it mean that his car might be at fault 7 as a contributor because it got him there, or that the Time 8 Magazine article describing mass murder might have brought him 9 there? Does it mean something real insignificant? Of course 10 not. You are not to find Lilly at fault under these 11 instructions, not even one percent, not even a smidgeon, 12 unless you are satisfied from the evidence that Prozac is in a 13 defective and unreasonably dangerous condition and that it was 14 a substantial factor in causing Joe Wesbecker's actions on 15 September 14, 1989. 16 Now, to be satisfied, common sense tells us that 17 if it's a mere possibility, that isn't being satisfied. Of 18 course anything could have happened. Gee, maybe it's a 19 possibility that Prozac triggered it or pushed him, that it 20 was the little straw, the little fragment that might have 21 contributed to this. That's not a substantial factor. 22 Questions that are asked of witnesses are not evidence; only 23 the testimony, only the documents that are put in as exhibits 24 are evidence. Arguments by lawyers are not evidence. You are 25 sworn to decide this case based only on evidence and on the 50 1 law that Judge Potter has already given to you. 2 Now, let me talk with you for just a moment 3 about cause. In this case, the real issue is: Did Joe 4 Wesbecker do this voluntarily? Did he do it because he wanted 5 to? Was it something that he was forced or compelled to do 6 because he was controlled by Prozac? Was he motivated by 7 Prozac to want to commit these terrible, awful acts or did he 8 intend to do these things because of his twisted, distorted 9 view of reality? Did Prozac cause him to become homicidal, to 10 have ideas and to make plans of killing many people, or was it 11 the result of his desire to get revenge against a place that 12 he hated? Did Prozac cause him to do something that he didn't 13 want to do or did he do what he wanted to do, as terrible as 14 it was, while he had Prozac, lithium and Restoril in his 15 bloodstream? If it was intentional, if he decided that he 16 wanted to do this, as crazy as the reasons may be, as 17 unjustified and undeserved as his conduct was, if it's what he 18 wanted to do, he is the sole cause. 19 Judge Potter has already instructed you in the 20 instructions that you have before you that Joseph Wesbecker 21 had a duty not to hurt these people, and he violated that duty 22 and he is at fault. The issue is not whether or not his acts 23 were justified and whether this was deserved, the question is 24 whether or not Standard Gravure -- the question is not whether 25 or not Standard Gravure or these good people deserved this 51 1 kind of violence. Nothing justifies that, not ever. 2 Everything he did was wrong. But the issue remains, did he do 3 these things because he wanted to based upon a distorted, 4 twisted view of Standard Gravure and its people, or did he act 5 involuntarily, not knowing where he was and what he was doing, 6 out of control, agitated or anxious? Did he do something that 7 he wouldn't have done if he hadn't taken Prozac for 26 days? 8 If he did what he intended to do or what he 9 wanted to do, then Prozac is not the cause; he is the only 10 cause. If he knew what he was doing and wanted to do it, then 11 he alone should be held responsible for what he did. That 12 doesn't mean that his intentions make any sense -- all murders 13 are without a rational basis -- or that his actions were 14 justified; most assuredly, they were not. But from his point 15 of view, if he did what he desired to do, then he alone should 16 be held accountable for what he did do. 17 In 1963, Martin Luther King said, "Like an 18 unchecked cancer, hate corrodes the personality and eats away 19 its vital unit. Hate destroys a man's sense of values and his 20 objectivity. It causes him to describe the beautiful as ugly 21 and the ugly as beautiful and to confuse the true with the 22 false and the false with the true." Hatred for Standard 23 Gravure was in the heart of Joe Wesbecker on September 14, 24 1989. Hatred distorted his views. The true became false and 25 the false became true, and the right became wrong and the 52 1 wrong in his mind became right. 2 I would like to look now at two aspects of the 3 evidence in this case, just two things. I want to look at the 4 office notes of Doctor Lee Coleman and I want to view those 5 notes in a way that none of us in this trial have ever seen 6 them. I want to view them placed against the context of the 7 history of what was going on in Joe Wesbecker's life, exactly 8 at the same times that he was seeing Doctor Coleman. 9 Now, I'm going to plead guilty to having to put 10 in evidence out of order. I had to do it for a lot of 11 different reasons, most of which I couldn't begin to control. 12 They dealt with schedules, the witnesses' schedules and the 13 like, and you've heard a lot of facts about his life that I 14 have presented to you out of order. I'll also confess to you 15 that I've cut some of it out. The parts that I thought were 16 repetitive, I have mercilessly not taken the time to present 17 it to you, but I have tried to present to you facts about him 18 so that you can understand the mind behind the actions on 19 September 14. 20 Let me talk to you about Doctor Coleman's note 21 of September 11, 1989, three days before the shootings. You 22 will recall the note. I'm just going to read a portion of it 23 to you now, and I'm going to show you the whole thing in just 24 a few minutes. "Patient seems to have deteriorated. 25 Tangential thought. Weeping in session. Increased level of 53 1 agitation and anger. Question from Prozac." Doctor Coleman's 2 question mark was written at the time that he did not know 3 what you know now. He did not know Joe Wesbecker. He did not 4 know those 22 assumptions that I presented to him, those 22 5 items of fact at the time he wrote that note. He didn't know 6 a one of them. They have subsequently been proven, together 7 with a lot of other facts and they've been presented to you, 8 not just those 22 items but many, many more, to complete the 9 picture. 10 In trying to decide what was the cause of what 11 Joe Wesbecker did, I want to tell you a brief story about 12 myself. My first recollection of any kind of work was when I 13 was two or three years old, living with my family, my mother 14 and my father at 41st and Michigan Drive. I recall being at 15 the kitchen table and my mother was upset because there was a 16 dead mimosa tree in our backyard. Mimosa trees don't get very 17 big but this one was an old one and it was leaning over the 18 house, and my mother wanted my father to cut it down and get 19 rid of it so that it wouldn't damage the house or somebody. I 20 remember my mother was upset that my dad didn't seem to think 21 it was very important. He had something else that he wanted 22 to do that Saturday. And so as a little toddler, I went out 23 into the backyard and I got a stick. I beat on the trunk of 24 that old, dead mimosa tree until I got pretty tired, went 25 inside and took a nap, and when I woke back up and went into 54 1 the backyard, the tree was down. And I remember very proudly 2 telling my mom I did that. I caused that tree to come down. 3 She didn't tell me that my father and the next-door neighbor 4 had gotten a big saw and while I was asleep they felled the 5 tree. I assumed that because I had beat on the trunk of that 6 old tree with a stick first and then later it fell down that I 7 was the cause. I thought I did it. I hit it first, and then 8 it fell, and I didn't know the real cause. I didn't know 9 because my mother didn't tell me that the real cause was 10 something else altogether. 11 A cause in a case like this cannot be determined 12 by simply learning that something occurred first, that a man 13 took Prozac and then subsequently did these awful things and 14 that they're necessarily connected up. In order for anyone, 15 including Doctor Coleman, to determine the cause of Joe 16 Wesbecker's actions, we must know all of the facts. We need 17 to know about the two men with the saw. 18 Now, Doctor Breggin has talked in this case 19 about what a compliant and what a conscientious patient Joe 20 Wesbecker was, but Joe Wesbecker, either intentionally or by 21 neglect, kept at least 22 important facts from Doctor Coleman 22 that relate to cause. Twenty-two important facts about 23 himself that relate to his condition were kept from Doctor 24 Coleman when he wrote that note. 25 Let me talk with you about some of these facts. 55 1 You'll remember these because they have come from the witness 2 stand in this case. Let me go back to the beginning. Brenda 3 Camp, his wife, has told us that in 1982 or 1983 that Joe 4 Wesbecker threatened to kill Doctor Beasley two or three 5 times, one time was during Wesbecker's marriage to Brenda and 6 another time was two years before the incident. He said one 7 time he would wait at his Southern Parkway office and when he 8 left the office he would roll down the window and blow his 9 brains out. 10 Charles Metten testified Wesbecker told him that 11 he followed Doctor Beasley everywhere Doctor Beasley went. He 12 pretty well stalked Doctor Beasley for quite a while. 13 Ann Detlefs Minch, the social worker who was 14 assigned to James's case, testified that while she worked on 15 that case from the spring of '82 until '84, that Wesbecker was 16 a difficult person to work with, communicate with, reason 17 with. He was angry, expressed that quite openly. He was 18 hostile. He was aggressive. She described him as red in the 19 face, aggressive, yelling loud and angry. "My experience with 20 Joe Wesbecker is that he was a very hostile, aggressive person 21 who was difficult to deal with." 22 Tom Gosling, a pressman at Standard Gravure who 23 knew Wesbecker well, testified that as early as '83 or early 24 '84, that Wesbecker was having trouble in his second marriage 25 and he started talking about hurting people, violence. "He 56 1 had asked McKeown to take him off the folder and McKeown 2 wouldn't do it, and he took it as a personal insult and 3 started saying he wanted to kill him." 4 '83 to '84, David Fewell, who testified by 5 deposition, "You didn't want to be around him when you talked 6 to him because he was acting like he had tunnel vision. He 7 would be mad at somebody and he would just change the subject 8 and he would want to bring it back and just dwell on it like 9 it was eating on him." 10 Tom Gosling again, in the four-year period of 11 '84 to '88, it was during this period of time that Wesbecker 12 started saying he wanted to kill different people. 13 "Question: How many times did he say that, Mr. 14 Gosling, to you that you specifically remember? 15 "All right. From '84 to '88, I couldn't begin 16 to count the times. 17 "Was it more than five? 18 "It was more than that. 19 "Was it more than ten? 20 "I would think so. 21 "Was it more than 15? 22 "I would think so. 23 "Was it more than 20? 24 "I really can't give you the number." 25 You recall Brenda Camp talking about the 57 1 occasion in April of 1984, when he attempted to take his own 2 life, attempted to commit suicide by using the carbon monoxide 3 from his car. And then you'll recall that in that same month, 4 according to the records of Doctor Senler and the Our Lady of 5 Peace records, he was admitted to Our Lady of Peace after 6 suicide, diagnosed with major depressive illness, unable to 7 cope with family and job. Ineffective at coping exhibited by 8 suicidal attempt and homicidal thoughts. Worries about losing 9 his job. Says can't compete financially with wife's family. 10 Admits homicidal thoughts towards ex-wife's ex-husband. 11 Thought of blowing his brains out, but he always has a witness 12 with him. 13 April 20, 1984, Doctor Leventhal did a 14 psychological evaluation on him and he wrote, "Currently, he 15 is attempting to contain his anger so that it doesn't 16 jeopardize the gratification of his dependency needs by 17 alienating support figures. To do this, he tends to turn his 18 anger against himself and so potential for self-destructive 19 behavior remains. Although the danger of acting out is not 20 imminent, I think he will be a difficult person to treat in 21 that he really doesn't trust anyone enough to engage in the 22 psychotherapeutic relationship, the only possible vehicle for 23 getting at the personality disorder." 24 Psychotherapy requires truth and candor on the 25 part of the patient, and Joe Wesbecker kept his real thoughts 58 1 of homicide and suicide from Doctor Coleman. When Doctor 2 Senler saw him in August of '84, he was bitter, angry, hostile 3 to the social worker of his son. 4 And then Tom Gosling, again, his testimony about 5 Joe Wesbecker between '84 and '88. "He talked about killing 6 different people; McCall, Shea, Warman, McKeown and others, 7 including Cox, depending on who made him mad that day. He 8 threatened a lot of people who had nothing to do with 9 management. He talked about making a bomb and bringing a bomb 10 in there. He started talking about coming in with guns and 11 shooting everybody." Joe Wesbecker thought about the ultimate 12 indiscrimate killing, a bomb, where the victims are everybody 13 that just happens to be there by chance at the time of 14 detonation. 15 Mr. Gosling said, "We'd sit around and talk and 16 he would talk about how bad he was feeling. Really you 17 couldn't say a lot of times because he was so agitated. He 18 just kept talking about how bad he felt. He would just get 19 tense, his face would get all red and he would be talking 20 about how many people he wanted to kill, and nothing you said 21 would calm him down. So when he started getting that way, I 22 would usually try to get away from him. He just stayed that 23 way till he left work." Gosling would see him pace. He was 24 over by his folder and he would just walk around his folder, 25 and sometimes he'd just walk up and down one side of it. 59 1 Because he was nervous with regard to the pacing, Gosling 2 said, "I can't really say that Joe ever got better at work, 3 just several days he would do that sometimes, some days he 4 would just sit there." 5 In July of 1986, Mike Shea buys Standard Gravure 6 and the atmosphere in the pressroom changed. Shortly 7 thereafter, he told Mr. Metten that somebody ought to do away 8 with Mike Shea. 9 Don Frazier described Wesbecker in 1986 as 10 antagonistic, confrontational and very agitated. 11 Richard Keilman in the mid 1980s recalls hearing 12 Wesbecker say he wanted to shoot Popham. "I don't know. It 13 was Popham. It was McKeown. It was -- oh, hell, Cox. It 14 was, you know, I never took him serious. I don't think 15 anybody did. Maybe if somebody had taken him more serious, 16 this wouldn't have happened. Joe went from one of the nicest 17 guys you'd ever want to meet to paranoid. You didn't realize 18 it when it was happening." 19 While the Wesbeckers were on their way on New 20 Year's Eve 1987, I'll never forget Brenda's description of 21 this from this witness stand. They were at a stoplight right 22 beside Steak N Shake. "He looked right at me and said, 'You 23 know, it would be easy for me -- same figment of speech -- to 24 blow your daughter's brains out, and then I wouldn't have to 25 look at her. I wouldn't have to see her and I wouldn't have 60 1 to be jealous of yours and her relationship.'" 2 In early 1987, he brings a loaded pistol into 3 Standard Gravure and says that he wants to kill Jim Popham; 4 that if Popham ever speaks to him about anything other than 5 work, he's going to kill him right there in the plant. Lucas 6 tells Popham that if he says anything to Wesbecker that is not 7 job related, Wesbecker will blow his head off. The next day, 8 Popham informed Don Cox. He also told McKeown, Emert and 9 Sitzler. According to Cox, several months after that, 10 Wesbecker brought the gun into the plant, that Popham told him 11 about it. Cox then reported that to Grady Throneberry, the 12 manager of safety and security, and told McCall, who was the 13 Number Two guy with Mike Shea, that Wesbecker had brought a 14 gun into Standard Gravure and was going to use it on Popham 15 and himself. The very highest level of management was aware. 16 According to Throneberry, they met and talked with Don McCall, 17 Cox met with Throneberry, told him about the Wesbecker 18 threats, and that was the end of the matter. 19 1987 still. Wesbecker was in Our Lady of Peace 20 for almost a month. At that time Barbara Sheehan, the nurse 21 who testified here from Our Lady of Peace, took out a 22 question-and-answer form from him. Inability to cope related 23 to hyperactivity, sleep deficiency, agitation with job 24 stressors. As she questions Wesbecker, he states, "I'm moody. 25 I've pushed away from my friends due to excess overtime hours. 61 1 I don't like feeling weak. I've been screwed. I'm angry. My 2 nerves are preventing me from coping. He has felt like 3 harming his foremen at work any way he can. Sometimes I feel 4 like I'm two people; one, happy and, two, mad." 5 The nurses' notes which were read out loud to 6 you from the stand in the middle of that stack of Our Lady of 7 Peace records state, "Agitation with job stressors. Speech 8 pressure, rapid, face reddened when discussing job stressors, 9 and states he became so agitated with co-worker or co-workers 10 at times, he would speed up the equipment to get back at them, 11 which makes me feel good." 12 Doctor Buchholz tested him. His findings: "He 13 didn't seem very hopeful about the future and was frustrated 14 about his abilities to solve his problems." 15 And then in May of 1987, he met with Mr. 16 Mattingly, the man from the Human Relations office, the former 17 priest, the big man who sat on the stand and testified. And 18 Mr. Mattingly says that he talked about Cox, Popham and 19 McKeown. He gave examples, insisting that there was nothing 20 -- that they claimed there was nothing really wrong with him, 21 and that if we need to put you on the folder we will, that 22 McKeown said things like, "All you need to do is just tough it 23 out and do your job." He would go home and stew and fret 24 about it. He wanted the company to say in writing, "We will 25 never ask you again to work on the folder." He was nervous, 62 1 high strung, articulate and believable. He had a lot of 2 hostility toward his supervisors and toward the company. 3 Mr. Mattingly met with Paula Warman, June 16, 4 1987, and he said, "I'm sure you're not going to want to hear 5 what I'm about to say and I know the company is not going to 6 want to hear it, but in my opinion before you put Mr. 7 Wesbecker on the folder you ought to shut it down, because 8 putting him on the folder could be endangering his life and 9 the lives of the people around him." She said, "The company's 10 not going to want to hear that." And one of Mattingly's 11 concerns was that this man who had deep emotional problems 12 might snap under the pressure and harm himself or others. 13 Wesbecker, according to Richard Keilman again, 14 felt like everyone was picking on him. Bill Ganote ran the 15 press that he was on the reel and if Wesbecker missed a 16 paster, they'd get on him. And then right after that he meets 17 for the first time with Doctor Coleman, and when he meets with 18 Doctor Coleman he doesn't tell him anything except: "Patient 19 presents primary stress as employer jerking him around." He 20 didn't tell Doctor Coleman. When Doctor Coleman asked him, 21 have you been homicidal, have you thought about killing 22 people, he said no. And when he asked Wesbecker if he had 23 ever been suicidal, he said no. No suicidal or homicidal 24 ideation. All of the things that I just showed to you that 25 you have heard about, he withheld deceitfully from Doctor 63 1 Coleman because he knew what would happen. He would go back 2 to the hospital. 3 The second time and the third time that he met 4 with Doctor Coleman, he didn't tell him anything about 5 homicide or about suicide and wanting to hurt people. 6 In 1987 or '88, there was a meeting where Mr. 7 Shea wanted Throneberry right outside the door while he met 8 with Wesbecker. Shea denies it, of course. 9 1987, Danny Senters says that Wesbecker told him 10 he was going to get even with Shea, McCall, Cox, McKeown and 11 Warman. He had a mental list and the list would vary 12 depending on who he was having trouble with. One time he even 13 wrote seven to eight names on a roll of paper that went into 14 the presses. 15 In 19 -- early -- end of '87 or early '88, 16 Brenda Camp told you that Joe Wesbecker said to her that he 17 wanted to blow up Standard Gravure with dynamite. "I would 18 say end of '87, beginning of '88, Joe talked about blowing the 19 plant up with dynamite, you know. He made the comment it 20 would be easy for him to take an airplane -- he always liked 21 gadgets and he was pretty talented with his hands before he 22 got real ill, and he made the statement, 'It would be easy for 23 me to take a plane, fill it full of dynamite and go into my 24 locker, plant it and blow the plant up.'" And in early 1988, 25 while he was thinking about those destructive plans, while he 64 1 made those statements to Brenda, he never said a word to 2 Doctor Coleman. 3 February of 1988, he bought a pistol, a .38 4 Smith & Wesson. '87 or '88, Gerald Griffin says, "When he did 5 not like his work assignment one time Wesbecker said, quote, 6 I'll be back. I'm going to get these SBs." 7 Approximately 1988, Danny Senters tells us again 8 that two to three times he heard Wesbecker say he was going to 9 blow somebody away with a gun. He talked about having guns. 10 Three to four times a week Wesbecker would talk about getting 11 even. He would get worked up about Shea or McCall and you 12 could just see the steam coming out of his ears. His threats 13 were usually against the company. He felt someone in 14 management was keeping him from leaving. 15 He goes back to Doctor Coleman and again tells 16 him nothing about his statements to blow up and to kill. He 17 tells him nothing that would indicate to Doctor Coleman that 18 this is a seriously, seriously ill man. 19 Joe Ball, the police officer, testified that in 20 the summer of 1988, when Wesbecker was being treated by Doctor 21 Coleman, that he even saw Wesbecker on the Fourth Street Mall, 22 right over on Fourth Street, with a banana clip in his back 23 pocket, walking around at lunchtime. 24 And on August 6, 1988, Wesbecker took disability 25 because of his mental illness. He did not work from that time 65 1 forward. As Mr. Frazier told us, he wanted to work. It was 2 all that he had left in his life was to go to work, and he 3 couldn't go to work because he was so ill mentally that he 4 couldn't work the folder and Standard Gravure would not let 5 him off the folder. 6 When he goes to Doctor Coleman and he tells him 7 that his work performance has deteriorated; he was off. When 8 he goes to Doctor Coleman two days later, he talks about 9 increased pressure at work; he was off work. 10 Twenty days almost to the day after he stopped 11 working, Joe Wesbecker bought the nine-millimeter pistol that 12 he killed himself with on September 14, 1989. He didn't tell 13 Doctor Coleman about his ideas at that time to take his own 14 life. He goes to Doctor Coleman and says that he's feeling 15 slightly better. He didn't level with him. 16 On September 10, 1988, Wesbecker went to the 17 Owen Funeral Home, met with Mr. Addams and paid $650 in cash 18 for his own cremation and specified, "I want the ashes 19 destroyed. I want no one to have them because no one cares 20 about me." And Joe Wesbecker did not tell Doctor Coleman that 21 he was seriously suicidal at that time. 22 In 1988, Brenda moved out of the Nottoway Circle 23 house that Joe Wesbecker had purchased for $58,000, and 24 against his attorney's advice, he deeds the house to her, 25 quote, as the deed says, for love and affection. According to 66 1 Brenda, he feared that he was becoming increasingly mentally 2 ill, might be locked away at Central State Hospital and his 3 medical insurance running out and that the house would be 4 taken away, and he gave it to her. He goes to Doctor Coleman 5 in October and November and tells him nothing about his plans 6 and his concerns. Doesn't tell him he's purchased a weapon, 7 paid for his own cremation, given his house away for zero. He 8 tells him nothing that would give Doctor Coleman any insight 9 as to what's really going on in his life and in his mind. 10 On November the 5th, 1988, two days after he 11 sees Doctor Coleman, he orders a shotgun. And then on 12 November 10, 1988, there was a big fire and explosion at 13 Standard Gravure, and his friend Jim Lucas was seriously hurt. 14 And when Wesbecker visited him in the hospital, Wesbecker 15 said, "It's a shame the whole building didn't burn up." 16 On that date, December 1, 1988, Coleman didn't 17 -- Wesbecker didn't keep his appointment with Coleman, and on 18 December 12, 1988, Wesbecker tells him he's feeling better. 19 He doesn't tell him about the weapons he's purchased, about 20 the statements he's made to destroy a major building and plant 21 in downtown Louisville. 22 On the same day that he sees Doctor Coleman, Joe 23 Wesbecker wrote a will leaving everything to James and Brenda 24 and nothing to his oldest son that he had not spoken to in 25 seven years. The will says that he leaves nothing to Kevin 67 1 Wesbecker. And Wesbecker said, according to James, quote, his 2 father thought he didn't deserve it. 3 And on January 9, 1989, we're now nine months or 4 eight and a half months before these violent acts, Wesbecker 5 goes back to Doctor Coleman and says he's feeling better, 6 doesn't tell him about the wills, doesn't tell him he hasn't 7 spoken to his son for seven years, doesn't tell him about the 8 weapons that he's purchased nor has he told him about the 9 developing plans that he's got of destruction. 10 January 17, 1989, Patrick Purdy took an AK-47 in 11 Stockton, California, and opened fire on innocent school 12 children in a yard. January 18th, 1989, that was covered by 13 the media in the newspaper here, and on January 19, 1989, Joe 14 Wesbecker bought an AK-47. 15 February of 1989, that same month that he 16 purchased that weapon, Jim Lucas told us that he had a 17 fixation that people were watching him. Lucas went to his 18 house, and he had it in his mind that the company was out to 19 get him. Each time they talked, the list of people would be 20 different: Warman, McCall, Popham, Sitzler and McKeown. 21 February 1, '89, he orders two Mac-11s. You 22 recall what they look like. 23 February 2, he withdrew from the union, got out 24 of the union that he had been in for decades and, according to 25 his son, "He thought that since he had been on disability 68 1 there was no really fight for someone in their union to argue 2 for his cause, so why be in the union." Wesbecker, according 3 to his son, wanted to go back to work but he didn't want to be 4 on the folder, and he wasn't sure what he could handle. The 5 union was not getting him off the folder permanently. 6 Then he goes back to Doctor Coleman, nothing 7 significant told. He doesn't describe that he's purchased an 8 AK-47, that he has the Time Magazine article of February 6, 9 1989. He doesn't tell him about withdrawing from the union 10 and about his concerns and problems that everybody's abandoned 11 him. 12 And on February 7, 1989, the water is 13 disconnected at the house that he's living in. Next day the 14 phone was disconnected permanently. Never reconnected. 15 February 10, he picks up the two Mac-11s at 16 Tilford's Gun Shop. And then on February 20, he goes back 17 to -- he calls Doctor Coleman, talks about Halcion, says he 18 wants to switch but doesn't tell him anything about his plans 19 and what he's purchased and what he's getting ready to do. 20 February of 1989, either the 23rd or the 24th, 21 James goes to his house at 7300 Nottoway, where he's living, 22 and they discussed the fact that his son wanted to go to 23 N.C. State to graduate school and that it would cost 50 to 60 24 thousand dollars. Wesbecker said that his disability payments 25 were less than he had been making and he wasn't sure he could 69 1 come up with that kind of financial support for his son. He 2 was concerned that his disability would be cut by Standard 3 Gravure, according to James. Wesbecker suggested that his son 4 go move to North Carolina, establish residency, get a reduced 5 tuition rate and that maybe then he could make it. James 6 said, "No. I don't want to move there. I'm going to school. 7 I'll work some, but I need 50 to 60 thousand dollars from 8 you." And, finally, Joe Wesbecker said that he had a plan 9 that he thought might work, some type of trust fund or 10 something like that. He didn't tell his son what he did on 11 September 12, 1989, which was to write a check for $70,000 and 12 deposit it in his son's account. That was the plan. 13 On February 27, Wesbecker received a letter from 14 Standard Gravure saying your benefits are going from $1,420 a 15 month. And October 1, 1989, two weeks after he did this, his 16 benefits were going to be $391.21 a month for the rest of his 17 life, minus $78 that he was going to have to pay to keep his 18 medical insurance in force. Slightly more than $320 a month 19 for the rest of his life. He was 47 years old. 20 About that time, George McMillin, you remember 21 the gentleman who had had the stroke, nice, elderly man, he 22 was at Hall's Cafeteria and Wesbecker talked about bombing 23 Standard Gravure and then said it wouldn't be destructive 24 enough. He would have to plan something else; that Wesbecker 25 told him that he hated Shea and McCall because they were 70 1 trying to force him to return to work and that if he didn't 2 return they were going to take his benefits away. 3 February or March, John Henry was the repairman 4 that was there. And in March he goes back to Coleman and 5 tells him nothing about what he's planning, about his plans 6 for his son, about his hatred for Standard Gravure, about the 7 bombs that he had told George McMillin about, Doctor Coleman 8 knew none of that. 9 May, he trades in the AK-47 for a top-of- 10 the-line model. 11 Derby weekend of 1989, Brenda Camp's father was 12 in the hospital, and I believe she said that her father's leg 13 was being amputated that weekend, and Joe Wesbecker was there. 14 And he said to her, "Brenda, I'm just not talking to you about 15 things anymore because if I tell you things that I would tell 16 you, you would have me put back in the hospital." His quote 17 was, "He always called me Goody Two-shoes, and if I told you 18 things I was going to tell you, you'd call the police on me." 19 He said, "I'm just not going to talk to you anymore and I 20 don't want you to ask me questions anymore." At that time the 21 plan was getting more and more focused in his mind and he knew 22 that if he told Brenda that she would report him to the 23 police, possibly have him put back in jail where he had been 24 once as a youth or be put back into a mental institution, and 25 his choice was not to tell her, just like he had not been 71 1 telling Doctor Coleman. 2 Don Frazier recalls in a long quote here about 3 how he made lots of statements about a radio-controlled 4 airplane with explosives in the thing and fly it against the 5 building in order to get even. Mr. Frazier, who was the 6 chairman, the president of the union, said that, "He wanted to 7 get all of us." That during the year that he was off, instead 8 of his stressors getting less, they got greater. He described 9 at the end that, "He was bitter at me. He was a little bitter 10 at the union. He blamed all sorts of people down there, guys 11 that he had worked with for not supporting him and not helping 12 him. I'm no doctor, but I guess the word is paranoid. He 13 just seemed like he was real paranoid, to me, about the whole 14 thing, but he really hated being off from work. He expressed 15 that to me on more than one occasion. He just did not want to 16 be retired." 17 He goes back to Doctor Coleman, he says, "I'm 18 feeling more depressed, I don't sleep well." But he doesn't 19 tell him what he feels, what his plans are. The things that 20 he wanted to keep from Brenda he kept from Doctor Coleman. 21 Wesbecker goes and visits Jim Lucas. He 22 suggests a double suicide. Lucas says he's still fixated on 23 Standard Gravure being out to get him and he was going to go 24 in and kill some people. 25 Don Frazier, the summer of 1989, "He seemed to 72 1 lose his grip on reality toward the end. He would be coming 2 in, as I told you before, hollering at me. 'I don't know why 3 you didn't get me off the folder and, you know, I wouldn't 4 have to be without my job. I didn't want to quit my job. I 5 didn't want to be retired.' And progressively he just got 6 wilder every time he came in." 7 July and August of 1989, Jimmy Graham heard him 8 say -- Jimmy Graham heard through Lucas that Wesbecker was 9 going to come into the plant and shoot people. He didn't tell 10 Doctor Coleman. 11 Gerald Griffin talked about how Joe Wesbecker 12 told him that he was going to buy a remote-controlled 13 airplane, put plastic explosives on the wings and blow up the 14 place. Didn't keep his appointment with Doctor Coleman. 15 August of '89, his grandmother died, and after 16 the funeral or at the funeral, his Uncle John Montgomery 17 stated that he was shaken. He was, you know, just like the 18 world crashed down on him. He goes to Doctor Coleman in 19 August. Doesn't tell Doctor Coleman about the death of his 20 grandmother. Doesn't tell Doctor Coleman that the world is 21 shaken and has fallen apart on him. Doesn't tell Doctor 22 Coleman about his plans of destruction and death and violence 23 at Standard Gravure. Just like Brenda, he kept it from Doctor 24 Coleman because he knew what Doctor Coleman would do, make him 25 go to the hospital involuntarily. 73 1 August 17, he gets his prescription filled for 2 Prozac. He goes to Mr. Lucas's house three Saturdays in 3 August and September. He talked about getting Cox, McCall and 4 Shea, the same list. Said he was approached by somebody -- he 5 had approached somebody with The Outlaws and that he said that 6 he wished that Lucas would not return to work. Lucas tells 7 Cox about Wesbecker's plans to blow up Standard Gravure. That 8 was testified to by Don Cox and that it occurred in late 9 August, early or late August of 1989, about 30 days before the 10 killings. 11 He gets the Prozac prescription refilled and on 12 September 6th, 1989, he takes the AK-47 to Danny's Gun Shop. 13 You remember the gunsmith, Danny Jackson. There's a 14 discussion between Jackson and Wesbecker. Jackson says you 15 need some good ammunition so the weapon won't corrode and 16 Wesbecker told him, "I got all the ammunition I'll ever need." 17 At that time he had more than a thousand rounds for that 18 weapon. According to Jackson, he was nondescript. 19 Mr. Jackson gave him a small claim check about the size -- 20 about that size, and in order to get the gun back Mr. 21 Wesbecker had to keep that claim check and present it, which 22 he did six days later. 23 September, he goes back to Lucas's house and 24 discusses blowing up Standard Gravure. Lucas suggested that 25 he would hurt some innocent people with a bomb and Wesbecker 74 1 said, "You're right. I think I'll go to Plan B. I wouldn't 2 hurt you for anything in the world," and he talked about "my 3 old friend AK-AK." 4 On September the 7th or 8th of 1989, he asked 5 his son Jim to write out his Social Security number, his 6 address and his L&N Credit Union savings account number. And 7 on September 11, 1989, he goes to Doctor Coleman 8 where the note that I just read to you was written. He 9 doesn't tell Doctor Coleman that he has a hoard of weapons, a 10 cache of ammunition. He doesn't tell Doctor Coleman any of 11 the things that he's just told Jim Lucas about blowing up and 12 killing. He doesn't tell Doctor Coleman that he's been 13 suicidal and talked about a multiple, dual suicidal pact with 14 Jim Lucas. And in that meeting Doctor Coleman specifically 15 asked him, "Are you suicidal? Do you have thoughts of harming 16 yourself?" And Wesbecker lied and said no. 17 At the time that he met with Doctor Coleman, 18 that same day he told his son, according to James, that with 19 regard to his request for the 50 to 60 thousand dollars to go 20 to graduate school, his father told him, he said that 21 basically he thought he had covered all the angles and that 22 the money would be there in the bank when he needed it. The 23 same day that he saw Doctor Coleman, he had the plan in mind 24 to get rid of all of his property, no house, no bank account, 25 $300 a month from Standard Gravure, and at that time he was 75 1 discussing with Jim Lucas on a weekly basis destruction and 2 death at Standard Gravure but never mentioned it to Doctor 3 Coleman. 4 The next day, September 12th, he goes back to 5 Danny's Gun Shop, a 17-mile drive from where he lived -- the 6 shop is just right down here on Market Street -- and presents 7 that little claim check. And on the 12th he wrote and 8 deposited a check for $70,000 to his son's bank account at the 9 L&N Credit Union. He didn't go into details or anything, 10 according to his son's testimony, but he said that the money 11 was there, that only I could get it and that before Wesbecker 12 died he had given everything of value away. Everything was 13 out of his estate and protected from people that might come 14 after him. He met with his son on the 13th. He didn't tell 15 his son about the $70,000 transfer of funds to his account, 16 and that night when James asked if everything was all right 17 with him, he said everything was fine now. 18 On the 13th, he goes to dinner with Brenda, and 19 on the 14th when he awakened -- when she awakens, Wesbecker is 20 already dressed that morning. "He already had his clothes on. 21 I'm still in my nightie shirt, so he leaned up against the 22 wall in the bedroom where I now still sleep. He looked at me 23 and he said, 'Thanks for being a good friend.' He said, 24 'Thanks for always taking care of me.'" As Brenda went to the 25 hall bathroom to finish dressing, "He turned around, and my 76 1 hallway is a long hallway. He stood there and stared at me. 2 I said, 'Joe, what's the matter?' He said, 'Nothing. I just 3 come back to tell you good-bye again.'" And he left and went 4 to Standard Gravure. 5 None of these facts were known to Doctor Coleman 6 when he wrote that note. When I gave those facts to Doctor 7 Coleman, here's what he said: "First of all, Doctor Coleman, 8 were you aware of any of those matters brought to your 9 attention during the time that you treated Joe Wesbecker? 10 "Answer: No, sir; none of them. 11 "Is this information -- and, again, sir, at this 12 point it is just an assumption, but is this list of 13 information important or significant to you with regard to his 14 actions on September 14, 1989? 15 "Well, certainly my opinion is probably most of 16 them are certainly significant and seem very clear as to some 17 explanation in my mind of the events of September 14th, 1989. 18 "Would you explain that, sir? 19 "Answer: Well, it certainly sounds like that at 20 least from the time you've dated this in August 1988, that he 21 had been making threats about hurting someone or with a model 22 airplane to take some action against Standard Gravure or 23 whomever he felt was wronging him down there. This seemed to 24 take more form, certainly, as time went on. So my summation 25 would be that from what you've just proposed to me, that it 77 1 sounds to me like it was planned, that there were specific 2 things that happened that predicted or at least caused the 3 time frame of this to happen and for the event to take place, 4 and that it was a preplanned thing that took some time to 5 formulate specifically, but I definitely think that over a 6 long period of time it had been something he had been 7 planning." 8 Doctor Coleman went on to testify: "Certainly 9 from the information that I've been supplied, I knew very 10 little about this man. He talked very little about himself 11 and there was a whole lot that he didn't tell me and that I 12 didn't know, and it seems like he also kept it from other 13 people. 14 "Question: Doctor Coleman, empowered with this 15 knowledge, assuming that it's accurate, sir, do you have an 16 opinion as to whether or not Joseph Wesbecker committed 17 multiple murders and multiple assaults on September 14, 1989, 18 as a result of his taking Prozac? 19 "Answer: My opinion is that Prozac had nothing 20 to do with it at all." 21 Doctor Coleman testified in summary, "Now, as 22 far as the events of September 14th, 1989, it's my opinion 23 that that was a premeditated, planned and executed murder." 24 The reason behind Doctor Coleman's opinion is not money. The 25 reason behind his opinion was fact. Facts about Joseph 78 1 Wesbecker that were kept from him by Joseph Wesbecker. Doctor 2 Coleman did not know when he wrote that note what you know 3 now. Just like me, when I beat on the trunk of that old, dead 4 tree, Doctor Coleman did not know about Joe Wesbecker's 5 long-standing building hatred, his desire for revenge against 6 Standard Gravure; he knew none of it. 7 Truman Capote, the author of the book that was 8 on the best-seller list a long time ago, called In Cold Blood, 9 once said, "Great fury, like great whiskey, requires long 10 fermentation." Joe Wesbecker kept the facts about his fury 11 and their building fermentation from Doctor Coleman. Without 12 those facts neither Doctor Coleman or me or you can determine 13 the cause of his action; with those facts Doctor Coleman 14 concluded that it was intentional. He did what he wanted to 15 do. 16 Doctor Greist testified that Joe Wesbecker's 17 mental illness was like a saw-toothed downward deterioration 18 that went steadily downhill for many years. Joe Wesbecker 19 began talking about killing Doctor Beasley, Melissa Beasley, 20 and even awakened Brenda with the question, "How would you 21 like to die today?" But in the mid 1980s, the focus began to 22 center, all of his anger began to be directed, his hatred was 23 focused on Standard Gravure. 24 I've thought a great deal in the last few weeks 25 why he didn't kill Brenda or Melissa or Doctor Beasley. And I 79 1 think the answer is that Brenda treated him with compassion. 2 She knew he was mentally ill. She was his friend and she put 3 up with it for many years in a long story that I'll never 4 forget on those two -- that afternoon, that Friday morning and 5 that Monday morning that she testified. She stood by him. 6 She knew he was hurt mentally. She knew he was a problem, but 7 she would forgive him. He never forgave people; not his son, 8 not his mother, but she would forgive him and forget and try 9 to support him. 10 Shea's management at Standard Gravure, though, 11 was something else. They wouldn't take him off the folder. 12 They fought as to whether or not he had a mental disability. 13 He filed a claim saying you discriminated against me because 14 I'm mentally ill. They refused to recognize his mental 15 illness as a handicap and give him the only thing he wanted; 16 just let me off the folder. He thought that even the 17 chemicals, the air that he breathed at Standard Gravure, the 18 toluene was causing his mental illness and making him worse. 19 Even the teasing of his fellow employees there he took as 20 insults. I remember that Danny West said that there was, "If 21 you need help or something like that, call Joe Wesbecker, and 22 gave the number 589, whatever it was, NUTS, N-U-T-S. 23 "Question: Where was that sign posted? 24 "That was in the pressroom break room," the room 25 that he last fired into before he killed himself. 80 1 According to Tom Gosling, "They'd call him nuts 2 and crazy." But as bad as Standard Gravure's neglect of Joe 3 Wesbecker was, the thing that I find appalling is the fact 4 that they cared even less for the safety and security of these 5 people. Standard Gravure was warned by Joe Wesbecker 6 repetitively, "I'm coming to blow it up. I'm coming to kill." 7 It was reported up the line all the way to Don McCall. 8 Threats were repetitive over a period of time to different 9 people, even Don Cox remembers it, the superintendent of the 10 pressroom. Grady Throneberry admitted that he knew about it. 11 He even kept a file on threats. But what did Standard Gravure 12 do to protect the people that worked there? Nothing. There 13 was no security whatsoever at the Sixth Street entrance. 14 There was absolutely no means to control Joe Wesbecker coming 15 in there just like he did. 16 Certainly Standard Gravure knew before September 17 14th, 1989, or if they didn't know they certainly should have 18 known, that he was likely to do this. Jim Aabrams, the 19 security officer, you remember, who saw him as he fired that 20 first shot, complained to Grady Throneberry about no security 21 at the Sixth Street entrance in written reports. He said he 22 filed 15 to 20 of them and that Grady Throneberry told him 23 that the company didn't want to spend the money. Why after 24 all of these threats didn't Standard Gravure prohibit Joseph 25 Wesbecker from coming into the plant, mail him his checks. 81 1 Why didn't they put a video camera inside that grated bar-like 2 gate and before you get to the door with electromagnetic locks 3 and a speaker system so that either a guard at a guard shack 4 or the receptionist could see and talk to who was coming in 5 before they let them in. 6 And on September 14, 1989, there was no P.A. 7 system to alert people in the break room and in the basement 8 of the pressroom to evacuate the building. Aabrams said that 9 the only way he could have warned those people was to run 10 around the building and tell them personally face to face. 11 The P.A. system had been ripped out. If there had been a P.A. 12 system at Standard Gravure, certainly everyone in the break 13 room and in the pressroom would have been saved. 14 They had no security analysis at Standard 15 Gravure, no determination as to what sort of security should 16 be there before this incident occurred on September 14th. 17 Shea and McCall testified that they had two rules. "Exactly. 18 It was that there are two rules in business: Rule Number One 19 is never lose money; Rule Number Two is don't forget Rule 20 Number One. And that's exactly the quote," from Mr. Shea's 21 testimony by videotape. They had a rule about making money. 22 I think they had a rule about taking money, but they had no 23 rule about security because they didn't care about the people 24 that worked there. 25 Why didn't Standard Gravure call the police and 82 1 report these threats to the authorities, the people that deal 2 with terroristic threatening on a daily basis? Why didn't 3 Standard Gravure call Doctor Coleman and tell him that Joe 4 Wesbecker has been repetitively threatening to blow us up and 5 to kill our people so that the psychiatrist who had the legal 6 authority to involuntarily hospitalize him could do that? Any 7 employer exercising ordinary care in the protection of its 8 employees and the people who come into the premises wouldn't 9 ignore repetitive threats to kill people and to bomb or to 10 blow the place up. Standard Gravure did. 11 I want to talk with you finally about another 12 piece of evidence and that is in ten weeks of trial after all 13 of these people, witnesses have been heard and all these 14 exhibits have been viewed, there's only one person who has 15 said that he believes that Prozac was a substantial factor in 16 causing Joe Wesbecker's actions on September 14, 1989. That 17 sole and only witness is Doctor Breggin. Doctor Breggin was 18 the only witness who has testified that there was any 19 connection between Joe Wesbecker's taking Prozac and what he 20 did. Doctor Breggin testified for three days. He and Doctor 21 Granacher were paid about the same amounts of money to review 22 volumes of material, and in that three days of testimony there 23 are three minutes of testimony about his opinion about why Joe 24 Wesbecker did this. In this 47 days of trial, 3 minutes in 25 which Doctor Breggin said, "I think he did it because he was, 83 1 quote, already struggling with violent impulses." And the 2 suggestion was by Doctor Breggin that somehow Prozac caused 3 him to lose control of his inhibitions, that somehow he lost 4 control of his impulses. There have been questions asked of 5 other witnesses about the possibilities as to whether or not 6 Joe Wesbecker was activated, hyped up, agitated or out of 7 control on September 14, 1989, that maybe that was the little 8 push. Let's look at the facts. 9 On September 14, 1989, Joe Wesbecker left 10 Brenda's house at Blevins Gap Road and drove 17 miles through 11 traffic to Standard Gravure. He had a duffel bag in the back 12 of his car which was cleverly concealed with a moving quilt or 13 blanket. It contained an array of weapons. You've seen them 14 in the photographs that are Exhibits 7 through 11 and 139 to 15 141. Hundreds of rounds of ammunition, many clips carefully 16 loaded one bullet at a time in preparation for what he did on 17 that day. The last time that he left his house, he opened up 18 this magazine and he laid it out very carefully on top of the 19 dishwasher to these two pages and to the photograph of an FBI 20 agent, Patrick Purdy's AK-47 over his head. It was 21 photographed by the police exactly as it was found, and Brenda 22 testified that the top of that dishwasher was the message 23 center. If she left a note for him or he one for her, that's 24 where it would be put. 25 Those are not the kinds of things that a person 84 1 out of control, hyped up, a person who has lost all 2 inhibitions, who's acting on impulse does. And when he got to 3 Standard Gravure, he parked in front of the door there at the 4 Sixth Street entrance. Dianah Oehmann, who testified in this 5 case, was walking toward him on the sidewalk, just as he 6 pulled up. "Ms. Oehmann, had you entered the door at Sixth 7 Street before this vehicle stopped there? 8 "No. I watched him pulled up. He passed our 9 entrance door and like one spot past the door he parked and 10 stopped, and he just sat there as I kept walking. 11 "Did you look at him? 12 "Yes. 13 "Did he look at you? 14 "Yes. 15 "Did he get out of his vehicle as you were 16 walking by? 17 "No. He waited till I passed his car, then he 18 got out of the vehicle." 19 Joe Wesbecker went to the back of his vehicle, 20 got the duffel bag out and the AK-47. He walked right in the 21 door, got on the elevator. He had two target areas that were 22 preplanned and predetermined in his mind; one was that long 23 hallway, the first office being Mr. Shea's. Those row of 24 management offices, including the Human Resources office, 25 Paula Warman's office. That was the first target area to go 85 1 down that straight hallway. The second target area was the 2 break room and the supervisor's office, which was only about 3 that far away. Unfortunately, tragically, in order to get to 4 these target areas he shot, wounded or killed many people who 5 were in his way or people that he figured might come up behind 6 him and in some way interfere with his deranged plan to commit 7 these violent acts. He never varied from those paths. He 8 didn't pursue avenues of escape. He didn't wander off of the 9 management row or away from the direct and efficient route to 10 the pressroom and to the break room. Lieutenant Burbrink said 11 he took the most efficient route in that maze of a building to 12 get from target area management area to target area pressroom. 13 He walked nine hundred feet, took two different elevators, 14 went down a long flight of stairs. While he was on the 15 management floor, Jo Anne Self, the little bookkeeper, 16 testified: "How far away would that have been from Mr. 17 Wesbecker? 18 "Answer: I'd guess maybe 20 feet. 19 "What was he doing at the time you first stepped 20 out there? 21 "He was -- from what I can remember he was 22 facing Mike Shea's office. 23 "Question: Facing it? 24 "Yes: His face was turned towards Mike Shea's 25 office, but he was kind of walking straight down this hallway. 86 1 "When you saw him, how fast or how slow was he 2 moving? 3 "He wasn't running. He was just deliberately 4 walking. 5 "You saw him turn toward Mike Shea's office or 6 into Mike Shea's office? 7 "Answer: When I stepped out of the office his 8 face was that -- headed that direction. I believe he was 9 looking for Mike." 10 Terri Dattilo, who was a little further down the 11 hall up there on the third floor, you've got the photographs 12 and the video, testified: "What did you do see? 13 "Mr. Wesbecker. 14 "And where was he? 15 "Standing right there coming at me. 16 "And when you saw him how was he, how did he 17 appear to you? 18 "He appeared very calm, very determined. 19 "What about him indicated to you that he was 20 calm and determined? 21 "Just the way he walked towards me, the way he 22 looked at me. 23 "How did he walk towards you? 24 "Answer: Very calm. Just strided right towards 25 me. 87 1 "And what about him indicated determination? 2 "Answer: Just his eyes. 3 "When you saw him, what did he look like? 4 "Answer: He just looked real calm. I had never 5 seen him before. I remember he had glasses on and a jacket 6 and a shirt, and he didn't look upset. He wasn't running. He 7 was just calmly walking with a gun at his side." 8 These are accounts of a person in control, not 9 accounts of a person hyped up, blown out or whacked up on some 10 sort of stimulant or other medication that is causing -- or 11 other ingested material that's causing someone to lose 12 control. These three women who saw him that morning all say 13 he was in control. He was calm. And I'll never forget 14 Lieutenant Burbrink testifying about the amount of control 15 that it takes to change the clip on an AK-47. A person who's 16 agitated and who's out of control could not make that 17 maneuver. Joe Wesbecker we know did it at least once and 18 perhaps twice. He hid the bag of ammunition, that heavy 60- 19 to 65-pound bag under a stairwell about halfway through these 20 terrible acts so that no one could find it, so that he would 21 be relieved of the burden of carrying it. He never fired 22 indiscriminately; he never sprayed rounds of ammunition 23 without a target. As awful as it was, it was preplanned, it 24 was the act of a man under control, a man who knew what he was 25 doing and where he was. 88 1 Andrew Pointer testified: "Question: And when 2 you saw Mr. Wesbecker in that area, do I understand, sir, that 3 you watched him approach that set of steps, and I think your 4 words were in your deposition, quote, like a hunter stalking 5 his prey? 6 "Answer: Yes. 7 "Is that the way that he moved and held the 8 weapon, sir? 9 "Answer: He sure did." 10 And then, to me, the most important piece of 11 evidence about why he was there, after he had killed three 12 people and after he had wounded eight, he met John Tingle. 13 They were standing just as I stood right in front of you about 14 six to seven feet apart. John Tingle and I stood here with 15 the big map that I've got over there. Mr. Tingle stood here 16 and I stood about over here. And Mr. Tingle recalled and 17 testified what happened. They were down in the basement in 18 the reel room. "Did he come around the end of the press as 19 you were walking this way? 20 "Answer: Right. 21 "And all of a sudden there both of you are, you 22 standing there and he's got a gun; right? 23 "Right. 24 "And you're walking toward him? 25 "Right. 89 1 "Do you stop when you see him with a gun? 2 "Answer: When he told me to stop, I stopped. 3 "Question: Did he hold out his hand or did he 4 just say stop? 5 "He said, 'Stop right there, John. Get all the 6 way back, back to the wall, and get out of my way.' Well, but 7 he cussed. He said, the F-ing wall and stay out of my way. 8 "He was walking toward you at that point? 9 "Right. Well, he stopped. He stopped right 10 about here at the end of the press and I stopped right about 11 here when I seen the guns and that. 12 "And so did you say anything to him? 13 "I said, 'What's happening, Rock?' 14 "Was this before or after he said, 'Don't come 15 any further?' 16 "I think it was after. 17 "And what did he say? 18 "He said, 'I told them, now I'm going to show 19 them.' I said, 'Rocky, you're messing up.' He says, 'I told 20 them, now I'm going to show them.' He said, 'Get all the way 21 back to the F-ing wall and stay out of my way.' And I said, 22 'Go for it.' It was like a cheap movie." 23 This is the last conversation that Joe Wesbecker 24 ever had. He spared John Tingle's life, and when he did he 25 knew who he was, he knew where he was. And listen to the 90 1 confession that Joe Wesbecker made to John Tingle. "I told 2 them and now I'm going to show them." He had told them. 3 These are not the words of a man who doesn't know where he is, 4 who had no appreciation for right or wrong, who didn't 5 understand, who was out of control. These are the words of an 6 intentional killer. A man who has been overcome by his desire 7 for revenge, his hatred for the place that he worked. This 8 confession is his statement of why he was there and what he 9 was doing, and Joe Wesbecker's statement to John Tingle 10 absolutely undisputed, no one has ever contradicted this, his 11 last words in that confessional conversation were, "I told 12 them, and now I'm going to show them." 13 Tragically he did go on, tragically he did 14 proceed to kill others and of course he got to that break 15 room. And then after doing that, he stood in front of the 16 supervisor's office, the door that they posted the job 17 assignments on, and as Lieutenant Burbrink described it, those 18 people that really intend to do it jam that gun way up under 19 the chin, and he pulled the trigger. 20 Prozac didn't make Joe Wesbecker do what he did 21 on September 14, 1989. Prozac has been in public use for six 22 years, and it doesn't make people commit mass murders. Joe 23 Wesbecker was an ill and deteriorated man who kept from the 24 people that might have been able to save him, to salvage him, 25 the vital information that they needed. He didn't tell Doctor 91 1 Coleman about his real problems. He went to six different 2 psychiatrists over these 1980s, was tried on a long list of 3 medications. His problem was unsolvable because, as Doctor 4 Leventhal said, "He doesn't trust anybody and he's not going 5 to tell you the truth." 6 We now know these facts. You now know the whole 7 story as to why the tree fell, what brought him there. Never 8 justified, never deserved, entirely wrong, but you now know 9 what was in his mind because he said so. 10 A long time ago at the very beginning of this 11 trial, you were seated out here along with a large other group 12 of people, all the potential jurors, and I asked you as a big 13 group a number of questions at a time that you took an oath to 14 tell the truth, and the last question that I asked you was 15 this: "After you've heard all of this evidence, if the facts 16 in this case justify it, and if the law given to you by Judge 17 Potter at the very end of this trial warrants it, do you know 18 of any reason at all why you could not find that Eli Lilly and 19 Company and its medication Prozac did not cause or did not 20 contribute to cause, even in the slightest degree, the 21 terrible behavior of Joseph Wesbecker on September 14, 1989." 22 And every one of you silently agreed that if the facts did 23 justify and if the law did warrant it, that you could find in 24 favor of Eli Lilly and Company. I ask you to now follow 25 through with that commitment under oath and to return Verdict 92 1 Form A. 2 I thank you for your kind and respectful 3 treatment of me and my client. You have been exemplary. On 4 behalf of everybody, I thank you for the weeks, the notes, the 5 attention, the concentration that you've given to us. Thank 6 you very much. 7 JUDGE POTTER: Ladies and gentlemen of the jury, 8 at this point we're going to take the lunch recess. As I've 9 mentioned to you-all before, do not permit anybody to talk to 10 you about this case; do not discuss it among yourselves; and 11 do not form or express opinions about it. Would anybody have 12 any difficulty if we just took the lunch till -- an hour, till 13 1:15 -- well, 2:15. Sorry. We'll take an hour and a couple 14 minutes and stand in recess till 2:15. 15 (LUNCH RECESS) 16 SHERIFF CECIL: All rise. The jury is now 17 entering. All jurors are present. Court is back in session. 18 JUDGE POTTER: Please be seated. 19 Mr. Smith. 20 MR. SMITH: May it please the Court, Counsel, 21 ladies and gentlemen. 22 23 24 25 93 1 CLOSING_ARGUMENT _______ ________ 2 3 BY_MR._SMITH: __ ___ _____ 4 I'm not much for final argument in a 5 two-and-a-half-month trial. I am not going to work on the 6 assumption that you people can be convinced of anything that I 7 say at this time. When I started trying lawsuits I had a full 8 head of hair, and I have truly got to say I have never seen a 9 jury pay as much attention and be as interested and 10 conscientious as you have. Mr. Stopher and I are as far apart 11 on many things, as far apart as from Louisville and Dallas, 12 but one thing we do agree on, our jury system is under attack 13 by some people in this country, but our jury system is 14 democracy in action. It's hands-on democracy by people who 15 care. 16 You people have demonstrated to me that you care 17 in the utmost. You have brought your intellect to this case; 18 you've brought your interest to this case; you've brought your 19 hearts to this case. On behalf of these people whose lives 20 have been changed by this drug, we can't thank you enough for 21 the interruption in your life. Truly, I will go back and I 22 will tell everybody what a good job, what a conscientious jury 23 you were. 24 As you know, probably by my hoarseness and by my 25 coughing -- and I, again, Mr. Stopher, apologize for coughing 94 1 during your argument -- I am fighting a sore throat, 2 laryngitis, and so my bad luck may be your good luck. I may 3 keep my remarks brief, but then again, I may, you know, 4 continue on. I'll try as long as I can because I have a lot 5 of things that I would like to bring to your attention. 6 This lawsuit involves serious questions 7 concerning matters that probably go beyond this courtroom and 8 will affect more people than you and my clients. When Mr. 9 McGoldrick comes and tells you that a verdict that you render 10 might affect the production of this drug or the mental health 11 of other people, that is nothing but an illusion. This 12 lawsuit is about a corporation's responsibility to individuals 13 who consume their products. It's a lawsuit about a 14 pharmaceutical firm that markets a drug to people who are ill. 15 It's about a corporation, a pharmaceutical firm's 16 responsibility to people of the most vulnerable sort, and I'm 17 talking about Joseph Wesbecker, and I'm talking about people 18 that suffer from depression, and I'm talking about people who 19 have significant mental illnesses. 20 I didn't choose -- it's the worst thing 21 personally that could happen to me is right here at the last 22 of the case I would come down with laryngitis and a cold and 23 be running a fever and not be able to communicate, not be able 24 to concentrate like I want to. You know, it's the last thing 25 I want, to be physically ill. It is impairing my performance, 95 1 it's impairing my life. 2 Certainly the same thing was true of Joseph 3 Wesbecker. Joseph Wesbecker did not choose his mental 4 illness. Joseph Wesbecker did everything he could to solve 5 his mental illness. It would be amazing that there could have 6 been some long-standing plan of some evil man who was ravaged 7 by hatred that he would be in his psychiatrist's office three 8 days before this happened seeking treatment. 9 Regularly, he sought treatment for his mental 10 illness. It's not like Joseph Wesbecker ignored the problem 11 that his mental illness created. He did everything that he 12 could to solve his mental illness. It's smoke and mirrors to 13 say Joseph Wesbecker had a plan when he was in his 14 psychiatrist's office three days before this occurred seeking 15 help. If he had a plan of a long-standing nature three days 16 before, if he was an evil, homicidal, had a specific intent to 17 kill since 1983, why was he in his psychiatrist's office three 18 days before this happened? It's obvious that the man was 19 seeking treatment for his illness, which is the complete 20 opposite of the picture that Lilly would paint here. 21 It seems inconceivable to me that Eli Lilly and 22 Company would defend this case, defend their drug, by 23 attacking the person for whom their drug was intended. Keep 24 that in mind, that every word uttered against Joseph Wesbecker 25 is a word uttered against a patient for whom all people say 96 1 Prozac was intended. Prozac was specifically designed, 2 synthesized and manufactured to treat Joe Wesbecker. Where is 3 corporate responsibility? Where is truth here when Lilly will 4 point to the victim of their drug as the culprit in this 5 tragedy? 6 Obviously, this is not a new or unusual attack 7 by the Defendants. I mean, it goes back as far as, you know, 8 criminal law. You know, it's like -- what they're saying 9 about Joseph Wesbecker is like saying, you know, that a victim 10 of a rape, the defense lawyer for a rapist is saying that the 11 victim of a rape somehow brought this rape on herself by her 12 particular conduct. I mean, it just doesn't make any more 13 sense than that. This man, if you would believe that this 14 drug is safe and efficacious, this man should have been helped 15 by this drug. I don't know how strongly I can express that. 16 You know, I'm almost outraged that Lilly would attack the 17 person who was receiving their drug, and, you know, they point 18 repeatedly at some evil character in Mr. Wesbecker, and they 19 force the victims of his shooting to defend him. They're not 20 defending their drug. Mr. McGoldrick came in from New Jersey 21 and talked to you for 43 minutes about Prozac, and Mr. Stopher 22 talks for an hour and a half criticizing Joe Wesbecker. They 23 have already automatically put us on the defensive. 24 Certainly, there are several uncontradicted 25 facts here that need to be kept in mind. Number One, Joe 97 1 Wesbecker was mentally ill. Number Two, this drug was 2 manufactured to treat the mental illness for which Joe 3 Wesbecker suffered. Number Three, these people who are the 4 plaintiffs in this case did nothing to contribute to their 5 injuries or cause Joe Wesbecker to shoot them. If Joe 6 Wesbecker had a plan, why did he shoot some people there in 7 the back that he didn't know? David Seidenfaden, Mr. Sallee, 8 they were shot in the back. He didn't even know who they 9 were. He shot Mr. Sallee in the grinding room when Mr. Sallee 10 was bent over the machine, as he walked into a room and shot 11 him. This is not a plan to get people, as is expressed by the 12 Defendants in this case. Remember, throughout your 13 deliberations, that Joseph Wesbecker by all accounts, by all 14 experts, by everyone here, was mentally ill. Number Two, this 15 drug by all of the Defendant's experts, should have had a 16 beneficial effect, but it didn't. Did Prozac cause Joseph 17 Wesbecker to shoot and injure and kill the Plaintiffs? That's 18 the issue that we've been here for two and a half months on. 19 I don't know where to start. Do I start with 20 Joe Wesbecker and immediately rise to defending Joe Wesbecker 21 when I know that there is evidence all over this courtroom in 22 poster forms that we have, when I know that you've heard 90 -- 23 100 witnesses testifying with respect to the inadequacy of 24 this drug and the problems with this drug that go back a long, 25 long way, when the warning here is still absolutely different 98 1 than the warning in Germany? When at the time this shooting 2 occurred the German government was still withholding approval 3 of this drug in Germany? If we had been fortunate enough to 4 be citizens of Germany, none of us would be here because 5 Prozac wouldn't have been available on September 14th, 1989, 6 and those people, those patients in Germany, those physicians 7 in Germany, get a better, more complete picture of this drug 8 than we do here. That's not right. It wasn't right then. 9 It's not right now, and it had a direct, direct influence. It 10 was a substantial factor in this incident and Joseph 11 Wesbecker's actions. I still haven't decided whether to talk 12 about Joe Wesbecker first or about Prozac first. I had 13 intended to talk about Joe Wesbecker first, so I'll go ahead 14 and mention my observations about Mr. Wesbecker. 15 You know, only you can get a sense of a person. 16 Only you, by seeing witness after witness after witness, 17 hearing testimony after testimony after testimony, can really 18 draw the essence of an individual. I mean, we're advocates. 19 You know, I'm here for the Plaintiffs. The defense lawyers 20 are here for Lilly. You're independent. You are here as the 21 judges of the facts and to exercise your common sense. You've 22 got to mold all of this down and get a sense of Joe Wesbecker. 23 Obviously, Mr. Stopher, with the manpower and 24 the time that he spent on this case has picked fact after fact 25 after fact out of this trial, pulled them up over 15 different 99 1 posters and said this particular testimony shows a plan, but 2 that's 15 posters of selected testimony that he selected that 3 he thinks are significant to his case. Some of this I'm not 4 sure is entirely accurate with respect to what was actually 5 said from the witness stand. Not that he's intentionally 6 trying to mislead you, but he is highlighting what he wants 7 you to hear. 8 I'm fixing to tell you some things about Joseph 9 Wesbecker that I'd like you to keep in mind, but I'm not going 10 to take tit for tat, he says this, I say this; he says this, I 11 say that. That's what you-all have been sorting out for two 12 and a half months now is, you know, what is the essence of 13 Joseph Wesbecker. 14 In opening argument, Mr. Stopher would have you 15 believe that Joseph Wesbecker was Charles Manson or Jeffrey 16 Dahmer, born in carnage. There was pictures of the steeple 17 off of the church off of which Joe Wesbecker's father fell and 18 died when he was an infant. There was a picture of the 19 orphanage he went to. There was a lot of things said by 20 Mr. Stopher about the early discord and problems in the 21 family. Nothing about that was said today in his argument. 22 If you look at Joe Wesbecker's childhood, I mean, sure, there 23 was -- his father died, his mother was young. His mother 24 didn't give him the attention that his aunts thought she 25 should have, but is there anything in that that's different 100 1 from millions of other people? Is that a destined road for a 2 mass murderer? Of course not. 3 You know, there's testimony that he quit school; 4 didn't like school, so he quit school before he graduated. 5 What he did was he quit school and went to work, and he worked 6 at Fawcett-Dearing first and from the time he started 7 walking -- working at Fawcett-Dearing in, what was it, the 8 '60s, all the way until the time he was placed on long-term 9 disability, it is obvious that he was a serious, conscientious 10 worker. He probably did overwork himself. He probably did 11 spend too much overtime work and probably didn't devote as 12 much time to his family as he could have, but that could be 13 said about a lot of you and certainly all of the people that 14 have -- the lawyers that have been involved in presenting this 15 case. 16 I mean, I thought those were attributes, the 17 fact that you work hard, the fact that you save money, that 18 you're conscientious about investments. I thought those were 19 good points. It's almost like Lilly presents these as 20 negative points with respect to Mr. Wesbecker. Regardless, 21 does that mean someone's a mass murderer? Obviously not. 22 Does that lead to mass murder, overwork and conscientious 23 about investments? Certainly not. 24 He was obsessed or felt bad that he didn't 25 graduate from high school, so he went back and got his GED. 101 1 Well, that's a plus. After he started working at 2 Fawcett-Dearing, he got married to Sue Chesser. There was 3 testimony that he, you know, drove cars too fast and hung 4 around with a crowd that he shouldn't have, sort of. But Joe 5 Wesbecker was just like a lot of us. He got lucky, found a 6 good woman, and got serious about his marriage. Remember the 7 witnesses that all said that Joe Wesbecker got serious about 8 his marriage, got serious about his work and began working, 9 raising a family, just like normal. This is not the destiny 10 of a mass murderer. 11 The marriage after 17 years failed. Before 12 that, he had had two children, Jimmy and Kevin, both with 13 problems. Kevin had a physical handicap, Jimmy had obviously 14 an emotional handicap, but there wasn't any evidence but that 15 Joe Wesbecker wasn't supportive of his children to a large 16 extent. 17 Was Joe Wesbecker an evil man? Was he born a 18 murderer? When did he become a murderer? What put him on 19 this course? Was it when he got his divorce from Sue and 20 there started to be bitter animosity among them? Obviously, 21 that's a traumatic thing. I think probably if I had to give 22 my psychiatric opinion, which is worthless, the -- you know, I 23 think that's probably where you start seeing more serious 24 problems with respect to the disease manifesting itself, the 25 disease of depression. So that, certainly, he starts getting 102 1 depression, he starts getting depressed, he starts having 2 marital problems. But does that cause him to be a mass 3 murderer? Obviously not. 4 Remember, the expert testimony from Doctor 5 Greist, one of Lilly's experts, was that depressed individuals 6 normally don't commit violent acts. His diagnosis of Joe 7 Wesbecker was malignant depressive disorder. I asked him if 8 he knew of any reports of any individuals with malignant 9 depressive disorder that committed a violent act. He said, 10 "No, I don't." 11 Joe gets a divorce. There's problems in the 12 divorce with respect to Sue and Joe. You know, there's court 13 battles and things of that nature, but does that mean 14 someone's destined to be a mass murderer? Obviously not. 15 Next, Joe gets a divorce and meets and marries 16 Brenda. Brenda's got a family, Joe's got a family. Probably 17 trouble mixing families. That is common to a lot of second 18 marriages, but that certainly doesn't indicate any plan to 19 murder these people and injure these people. Threats against 20 Doctor Beasley. "I'd like to blow his head off. It would be 21 easy to drive up and blow his head off but there's a witness 22 there." You know what Joe's problem with Doctor Beasley was, 23 was that Doctor Beasley wouldn't pay his child support that he 24 owed Brenda. It's as clear as that. That was what Joe was 25 upset about, is because he wasn't treating Brenda and her 103 1 children right. 2 Remember, when Joe and Brenda met -- this is 3 according to Brenda's testimony -- when Joe and Brenda met, 4 Joe took pity on Brenda and her financial situation and the 5 problems that she was having with Doctor Beasley. What did he 6 do? He said, "You can come move into my house where I'm 7 living and I will move out, if it would make you uncomfortable 8 to live with me and your children in the same house." That is 9 taking pity on her, he's being nice to her, and he's also 10 being honorable in saying, "I'll move out if that's going to 11 cause a problem with your children living in a house when 12 we're not married." They later got married and things 13 continued for a while. These threats, though, against Doctor 14 Beasley, were frustrations that he was experiencing as a 15 result of Doctor Beasley's failure to do right by Doctor 16 Beasley's own children. 17 The threats -- it's like, you know, when 18 something like this happens -- and I've thought about this -- 19 when something like this happens, where a horrible act occurs, 20 an unbelievably horrible act occurs, then everybody starts 21 looking at the person who committed that act and they start 22 looking at their life under the microscope of 20/20 hindsight, 23 and everything that wasn't even noticed before gets blown out. 24 It was microscopic, invisible before, but after you go back 25 and look at these things, all of a sudden they can be made 104 1 large, out of proportion. 2 I think that's what occurred here. A lot of the 3 threats that have been expressed concerning Joe Wesbecker and 4 what he said, things he said, if you think about it, "I'm 5 going to blow his head off. I'd like to get these guys," or 6 "I wish that place had burned down," in connection with 7 Standard Gravure, we all say things, you know, that may be 8 overstatements, maybe -- you know, I've said I'd like to do 9 this, I'd like to do that, I mean, in just ordinary 10 conversation, but I haven't committed a violent act. But if I 11 go out and commit a mass murder, then those things that I say 12 that said, you know, that maybe didn't really mean anything at 13 the time, like, "I wish the building had burned down," you 14 know, all of a sudden have gigantic proportions. And I think 15 that is 80 percent of the threats that is experienced or that 16 is brought to you by the Defendant in this case are nothing 17 more than 20/20 hindsight, looking at these particular 18 isolated instances, picking up these incidences and looking at 19 them under the microscope of the retrospective analysis based 20 on the horrendous act that was done. 21 I hope I'm expressing myself, because I think 22 that every time -- when you go into your deliberations and you 23 say, well, you know, Tom Gosling said he was threatening every 24 day. Okay. Or he always talked about this or that. Well, 25 Number One, you know, this is all recollection after the fact, 105 1 after this mass murder has occurred, you know, and there's 2 rumors that have gone down everywhere, people are, you know, 3 thinking back to everything they can think of, things get 4 blown out of proportion. I don't think that there was a plan. 5 I don't think Lilly has established that there was a set plan 6 in place in connection with what Joe Wesbecker did. 7 Remember, you have periodic threats, but you 8 also have a man who has mental illness. He has major 9 depressive disorder, schizoaffective disorder, things that 10 maybe he is saying something that is a little out of the 11 ordinary, maybe Joe Wesbecker was a little odd in 1985, 1984, 12 1983. He certainly wasn't a mass murderer. 13 Let me go back and kind of go through a 14 chronology of his life from the time he marries Brenda. 15 Brenda and he, their marriage ends, and yet their relationship 16 continues. They just can't live with each other as man and 17 wife very much longer, but their relationship continues until 18 the day Joseph Wesbecker died. Obviously, she saw something 19 in Joe Wesbecker that was of a redeeming value. And you heard 20 her describe Joe Wesbecker in loving terms. You saw her. Her 21 emotion that she felt for him still exists today. 22 He had three hospitalizations for his mental 23 illness. Not a one of them was involuntary. On each occasion 24 he himself checked himself into the hospital. Again, he has a 25 mental illness. He's trying to do the responsible thing as a 106 1 patient. He's going to see his doctor. He's taking his 2 medication. 3 Now I want to talk to you what I think about -- 4 what I think are some things that are beyond this, threats. 5 Remember here, of all the threats you heard, of all the 6 witnesses you've seen, not one witness, not one witness has 7 testified that Joseph Wesbecker was a violent man. Not one 8 witness has testified that he was, in their opinion, 9 homicidal. Remember, remember, when he was tested by the 10 MMPI, he was demonstrated by that MMPI as not being homicidal. 11 This man was not a born killer, but let's talk about two 12 things that I think you need to address, that I need to 13 address in this case, and I want to face them head up. 14 Number One, the taking of the gun in the sack to 15 work in 1987. Joe Wesbecker takes the gun in a sack to the 16 plant at Standard Gravure and purportedly says, "I'm going to 17 shoot Jim Popham if I see him or if he says anything. You 18 better tell him to stay away from me." That says a lot. That 19 says the man was upset; that he had a mental illness and that 20 he was -- had an armed gun on the premises. We have Joe 21 Wesbecker in 1987 with a gun with the means, the method and 22 the motive. The gun is loaded, according to Jim Lucas. He 23 could look in there and see the ends of the bullets. What 24 does he do? He takes the gun out of the building. He doesn't 25 harm a soul. The fact that he took the gun out of the 107 1 building tells you as much or more about Joe Wesbecker and his 2 condition and about what Prozac later does to him than him 3 bringing the gun into the premises. If Joe Wesbecker had had 4 a specific intent to kill as early as 1983, according to 5 Doctor Granacher, the $4200-a-day forensic psychiatrist, why 6 didn't he shoot him then? Why didn't he use it then? He had 7 the gun, he had the motive, he was mad. The answer is, in my 8 judgment, the man had some propensity for violence, some 9 anger, but was able to control himself. He saw that, "Wait a 10 minute, if I pull this gun out of the sack and go shoot 11 somebody, it will hurt somebody. I will understand the 12 consequences of what will occur. You know, I will understand 13 that." So he puts the gun back in the sack, goes out the door 14 at the end of the shift. Then Jim Popham comes in, says, "I 15 didn't know about it until later. I saw Joe Wesbecker on a 16 regular basis and he and I never discussed it." Nowhere in 17 this record is there any evidence concerning any further 18 problem between Joe Wesbecker and Jim Popham, and yet there 19 was a gun on the premises at the time. 20 There was -- there's been a lot of testimony in 21 this case about the problems between Joe Wesbecker and Mike 22 Shea. Grady Throneberry testified that Joe Wesbecker had a 23 specific audience with Mike Shea in his office. Remember, 24 Throneberry was in this kitchen, this anteroom and Wesbecker 25 and Shea apparently were sitting across the desk. Shea says 108 1 it didn't happen; Throneberry, it did. You can believe that 2 the two men were in there face to face. Again, there was an 3 opportunity for Joe Wesbecker to do something to the king of 4 all evil people, Michael Shea, and he didn't. He was under 5 control. He wasn't under the influence of Prozac at the time. 6 The second, apparently, individual that most 7 threats were made against is Donald Cox, the pressroom 8 superintendent. Apparently, according to the witnesses, there 9 were repeated threats against Donald Cox. But the fact is 10 Donald Cox lived right down the street from him and Donald Cox 11 said, "We never had any problems." If he wanted to get Donald 12 Cox, why didn't he just go down the street? They lived down 13 together -- they lived down the street from each other in 14 February and March and April and May and June and in July of 15 1989, when Joe Wesbecker had an AK-47 and had a lot of -- a 16 bunch of ammo. If Donald Cox was the object of his hate, why 17 didn't he just walk down the street and get him there? It 18 seems like that would be a lot easier. The fact is Joe 19 Wesbecker still had his impulse controlled. Joe Wesbecker 20 wasn't under the influence of Prozac. 21 Second fact that I think you need to consider, 22 why did he buy these guns in January and February of 1989, the 23 AK-47 and the ammo? That was long before Prozac. That's 24 something that you've got to face. Well, the fact is, that 25 says as much about there not being any plan as anything else. 109 1 The fact is he had these weapons for nine months and didn't -- 2 eight months and didn't use them. If he had had a plan, why 3 didn't he go use it in February when he had the gun? What in 4 fact occurred was he went out and shot the gun and jammed it 5 in June or May of 1989, and it wouldn't work. He didn't take 6 the gun to get it fixed until September 6, 1989, well while he 7 was under the influence of Prozac. Before that, the gun was 8 worthless to him; it was jammed; it was corroded up; it was of 9 no use to him. 10 Time Magazine article about violence. That 11 article, if you look at it, is really an article about gun 12 control and how these types of guns can be related to these 13 types of situations, but there is mention in that article 14 about the fact that the price of these guns is going to go up. 15 But again, if the Time Magazine article gave him the idea in 16 February, why did it take eight months for him to act on it? 17 The obvious reason is because he was on Prozac not until 18 August and September 1989. 19 Let's get it a little closer, though, to when 20 this occurred. Let's compare like June and July of 1989, to 21 August and September 1989. He was living at both places in 22 June and July 1989, he lived in Blevins Gap and Nottoway 23 Circle. In June or July of 1989, he was taking care of 24 Brenda's father. He was friendly with Brenda's father before 25 he died in July of 1989. Apparently her father was an 110 1 invalid. He would come over and visit with her father and 2 give her father assistance. Is this somebody that's a mass 3 murderer that's planning with a specific evil intent to kill? 4 He was resuming his relationship with Kevin in 5 July of 1989, before he got Prozac. It was still apart, to 6 some extent, but it was far, far better than it had been. 7 Jimmy was going to graduate school. Jimmy was presenting 8 emotional problems, but Joe always, always came to the support 9 of Jimmy. He was taking him to school on a daily basis in 10 June and July. 11 On July 14th, Brenda's father died. He 12 continued to be of support to Brenda. They went on a vacation 13 together to Gatlinburg. Is this a man that's planning a mass 14 murder? 15 He attended his grandmother's funeral, and he 16 wasn't devastated at his grandmother's funeral. His grieving 17 was appropriate. Jimmy testified that they drove to 18 Springfield together and there was no unusual grief on his 19 part. The fact is, I believe the testimony was, is that Joe's 20 grandmother had been sick for some time and this was not an 21 unexpected event in August before he took Prozac. 22 A lot has been made of the financial 23 transactions that occurred before Joe took Prozac. He deeded 24 the house to Brenda. Well, the fact is Brenda asked him to 25 deed the house to her. He made a will. Does making a will -- 111 1 I mean, this is crazy. Does making a will mean that somebody 2 is going to become suicidal or homicidal? I mean, we all -- 3 we see ads, we all should be making a will. He makes funeral 4 arrangements. Well, my understanding, those funeral 5 arrangements were made at Brenda's suggestion. It's also my 6 understanding that those funeral arrangements were made for 7 financial reasons, that this way he could lock in the price of 8 the funeral. The really weird financial transaction occurred 9 on September 10th, long after he's under the influence of 10 Prozac when he gives the $70,000 check to Jimmy and gets his 11 Social Security number and account number. That's when things 12 really get weird is when Prozac gets on board. 13 Look what happens after Prozac gets on board. 14 There are serious threats against Standard Gravure, serious 15 threats. All of a sudden, he's saying I'll use AK-AK. 16 There's a proposed double suicide between Mr. Lucas and Joe 17 Wesbecker. This had never been proposed before. Mr. Lucas 18 says he was scary. There was a change. I had never seen Joe 19 Wesbecker like this. 20 Brenda reported the change. She saw him 21 becoming more agitated. She reported to Lieutenant Burbrink 22 that there was a change in Joe Wesbecker. He was more 23 agitated. He wasn't acting like he had been two or three 24 weeks before that. 25 Jimmy noted a change. Jimmy noted that there 112 1 was an instance in September of 1989 when Jimmy started 2 talking about getting a book or getting some money for a book 3 and Joe just stopped the car in the middle of the road. 4 Difference. Difference. Probably the best recollection -- 5 the best reflection of the change made by a layperson is Jim 6 Lucas's letter that he wrote immediately after this happened. 7 Obviously, obviously a dramatic change in Joe Wesbecker's 8 conduct. He said he was scary. Going from Plan A to Plan B. 9 This is all under the influence of Prozac, a vast difference 10 there. 11 Can I take a break, Your Honor? My throat's 12 getting -- we've been about an hour. 13 JUDGE POTTER: Ladies and gentlemen of the jury, 14 I will also tell you that I've told Mr. Smith if he wants to 15 take more than one break, he can. He's doing this all by 16 himself and if he wants to take more than one break, he can. 17 As I've mentioned to you-all before -- we'll take a 15-minute 18 recess. As I've mentioned to you-all before, do not permit 19 anybody to speak to or communicate with you on any topic 20 connected with this trial; do not discuss the case among 21 yourselves or form or express opinions about it. We'll stand 22 in recess for 15 minutes. 23 (RECESS; BENCH DISCUSSION) 24 JUDGE POTTER: Strictly speaking under Kentucky 25 law, the clerk is the one that draws the alternates. I've 113 1 made arrangements for -- normally I say does anybody mind and 2 have my sheriff do it and nobody ever does. I have made 3 arrangements because the lawyers are from out of town and 4 might not understand what they were waiving to have a clerk 5 come over from mental inquest and have them draw them, but 6 they leave at 4:30. Is there any problem if the Court 7 Reporter draws the alternates? 8 MR. STOPHER: No, that's fine. 9 MR. FOLEY: No. 10 (BENCH DISCUSSION CONCLUDED) 11 SHERIFF CECIL: All rise. The jury is entering. 12 All jurors are present. Court is back in session. 13 JUDGE POTTER: Please be seated. 14 Mr. Smith. 15 MR. SMITH: Plaintiffs' Exhibit 211, the letter 16 from Jim Lucas written several days after, September 26, 1989, 17 after this tragedy, this is where I'm going to stop talking 18 about Joseph Wesbecker and then go back to this drug. Joe 19 Wesbecker was prescribed Prozac on August 10th, 1989. He 20 began taking it on approximately August 13th, 1989. In 21 regards to the -- and I'm starting on Page 2, "In regards to 22 the Wesbecker incident I was confused about the exact dates, 23 but after having time to consider, I'm now stating that this 24 is the exact facts as I can recall them. On the 19th day of 25 August, Joe Wesbecker came to my home to see how I was getting 114 1 along and to find out the results were from Doctor Kleinert. 2 We had talked two weeks prior when I run in to him uptown. I 3 told him that I was due to go back to Doctor Kleinert on 4 October 5th, but as far as it looks now, my doctor who is 5 treating me for the fire in regards to my fear of returning to 6 work, who is Doctor Gabbert, have decided it would be best if 7 I return to work and try to combat my problem. Joe told me he 8 had somewhere to go and would see me later, leaving me with a 9 manila envelope to read and study just in case I changed my 10 mind about applying for LTD. 11 He called me on the 26th, and asked if I would 12 be home. I told him yes, as far as I know. He came over 13 around noon and asked me if I was still considering going back 14 to work. I told him yes. He said, 'I wish you wouldn't. You 15 might get hurt. I've got a plan that will result in 16 eliminating that F place, meaning Standard Gravure, that would 17 put an end to everybody's worry.'" This is the first, first 18 word said about I've got a plan. This is on August 26, 1989. 19 Here we have a plan in writing. 20 "He told me he is going to get plastic 21 explosives, tape these explosives on a four-foot wing span 22 remote-controlled airplane and aim it at the naphtha recovery 23 system and wipe the whole F-blank place off the face of the 24 earth. I said, 'Joe, you're kidding me, aren't you,' and he 25 said -- he didn't answer me yes or no. I said, 'You could 115 1 kill a lot of innocent people who have never done you harm, 2 and who knows, the way my luck goes, I might be working the 3 day it happens.' He said, 'You're right, Jimmy. I guess I 4 better go to Plan B because I wouldn't hurt you for anything 5 in the world.'. 6 He changed the conversation real quick and 7 started talking about the LTD plan. I told my doctor the 28th 8 about Wesbecker. He told me did I think the man meant what he 9 said and I said yes." This is the first time anybody says 10 they think they -- do you think Joe meant what he said. 11 Continuing, "He also asked me if the man was seeing a doctor 12 and I said, 'I assume he is.' Doctor Gabbert told me I should 13 tell someone of authority at work to have this man watched and 14 take some precautions if they saw him around my place of work. 15 That same day I returned to work I informed my 16 immediate supervisor and supervisor what Wesbecker had said. 17 I again told my immediate supervisors that following Thursday 18 in the presence of my supervisor again. From that day on, I 19 told the people I worked with about what Wesbecker had said. 20 Again, I mentioned to one of my -- to one of my supervisors 21 who had informed me that the superintendent had not said 22 anything to him about it. He told me he didn't think Joe had 23 any hard feelings toward him because they had a good working 24 relationship. From that day on, after he, my supervisor, told 25 me this, and knowing he is a close friend of the supervisor's, 116 1 I really became worried. 2 Joe returned on Saturday before Labor Day to my 3 home. When he pulled up to my drive he was driving a 4 gold-colored sports car with a T top. I didn't recognize the 5 car. I stood up from the table to see who it was and saw it 6 was Joe. He had a stubby growth on his face. He appeared as 7 if he just woke up and his hair was a mess. His clothes was 8 soiled and wrinkled. It certainly didn't look like the Joe 9 I'd known for 29 years. I told Betty to tell him I was asleep 10 because he looked strange. Betty said, 'No, I'm not lying. 11 He was nice enough to come and see you and maybe he can pick 12 up his papers.'. 13 When he came in, he sat down at the kitchen 14 table and Betty fixed him a Diet Pepsi. He asked me if I made 15 up my mind about going back to work. I told him I had already 16 returned to work on the five-to-one shift. Again he said, 'I 17 wish you hadn't gone back.' That's when he said, 'It really 18 doesn't matter. I'll just have to make a couple of changes in 19 Plan B.' I asked him what he meant by Plan B. He said, 'It 20 doesn't concern you and it only concerns Shea, McCall and 21 Warman, Donald Cox, Jim Popham and the rest of the F-blank 22 office cronies.' That's when Betty hollered, 'Hey, none of 23 that,' and he told Betty he was sorry, that he was really 24 pissed off at the management. 25 As he got ready to leave, he told me that 117 1 everything would be all right and that him and old AK-AK would 2 take care of everything. As he got ready to leave I walked 3 him to his car and Betty walked out to look at his car. Again 4 I said, 'Don't you do anything silly, Joe.' And when he got 5 into the car, Betty said, 'Wait a minute, Joe, you forgot your 6 papers.' He said, 'That's all right, Betty. Maybe Jim can 7 use them. I won't need them anymore.' He throwed up his hand 8 and he waved as he drove away. 9 All day Sunday and Monday, I thought about what 10 he said about AK-AK. The only AK-AK that crossed my mind was 11 an automatic aviation gun that shoots down planes. I thought 12 maybe what he was trying to tell me was that he was still 13 thinking about explosives and shooting the plane idea down and 14 was going to carry the plastic explosives on his person into 15 Standard Gravure himself. From then on I was terrified, not 16 knowing what he was going to do." Nobody had ever been 17 terrified of Joe Wesbecker before this. 18 "I told everyone on my shift that would listen, 19 Popham, Kinberger, Sitzler, Emert, Kenny Cronin, and others I 20 can't recall. When the wife woke me that Thursday morning, 21 September 14th, she told me that someone was shooting people 22 in Standard. Three was shot at that time about 9:15, 23 according to the news break-in. I then told Betty, 'Oh, my 24 God, it's Joe Wesbecker.' And she said, 'Oh, surely not.' 25 When I heard on the news he had an AK-47, then it dawned on me 118 1 what he meant when he said my old AK-AK. He was telling me 2 AK-AK. That's when I broke down and said, 'God, forgive me 3 for not understanding sooner.' That's when I called the city 4 police to inform them that I had papers from Joe and that they 5 could come to my home and get them. After waiting four or 6 five days, I called my attorney and told him that I had to 7 tell the story and gave these papers to him. The rest is 8 history." 9 This is the plan of Joe Wesbecker and this plan 10 didn't start till he started taking Prozac. 11 Let's talk about Prozac. This is a drug that 12 was specifically synthesized, doesn't come from leaves, 13 doesn't come from trees, it doesn't come from berries. It was 14 made at Eli Lilly and Company, manufactured specifically to 15 affect brain symmetry. Serotonin is a neurotransmitter that 16 has by all scientific accounts directly been linked with 17 impulse control. It is an essential neurotransmitter. 18 Prozac, as we've all learned, is a medication, a powerful 19 psychotropic medication that is specifically designed to 20 increase the level of serotonin at the synaptic cleft. This 21 is our basic biology that we've been having ad nauseum in this 22 two and a half months. 23 The point about serotonin and the point about 24 Prozac biologically is, is that it raises serotonin levels 25 without question. It's undisputed that Prozac does prevent 119 1 the reuptake of serotonin at the synaptic cleft and increase 2 levels of serotonin. The fact, though, is, ladies and 3 gentlemen, that Doctor Fuller admits that all of us, the 4 hundreds of us now that are in this room, probably have 5 different levels of serotonin among ourselves and that this 6 level can't be measured and hasn't been measured. This 7 synaptic cleft can barely be seen. There is no test where you 8 can dip down and get the amount of serotonin within the 9 synaptic cleft. 10 The theory is that serotonin is related to 11 depression, related to suicide and related to impulse control. 12 The theory is, is that if you raise the level of serotonin you 13 will reduce depression, but nobody has ever proved this theory 14 about serotonin affecting depression; it's always just that, 15 it's merely a premise. What is proven, though, what has been 16 established is, is that Prozac does raise serotonin levels at 17 the synaptic cleft but nobody knows how much it raises it and 18 it doesn't know -- anybody knows how much it raises it between 19 a particular individual. But what's even more important, 20 nobody knows what anybody starts off with. It's a roll of the 21 dice. You give me Prozac, my serotonin level may go up some, 22 but where did my serotonin level start off with. If I say I'm 23 depressed, okay, so I get some Prozac and it raises my 24 serotonin. Is that always beneficial? 25 Lilly would have you believe that Prozac is 120 1 always going to have a beneficial result. What's undoubtedly 2 undisputed is that serotonin has a definite biological action. 3 It physiologically changes brain chemistry. Is that good? Is 4 that good for people in general? Is there a certain class of 5 people that that might be dangerous for? I mean, the premise 6 is we don't even know where we're starting. We've got all of 7 these thousands, hundreds, billions of neurons and we've got 8 all of this brain chemistry going on that is affecting our 9 mood, affecting our behavior, affecting our actions, affecting 10 our sleep, affecting our impulses and everything like this. 11 Is Prozac always going to be beneficial in every instance? 12 That's what Doctor Fuller would have you believe. That defies 13 logic, when nobody knows what it is to start off with. 14 What was done was once they got the patent on 15 this drug, once they started with this premise is they started 16 giving this drug to animals. Lilly started giving this drug 17 to animals. What happened? Rats became hyperirritable. Now, 18 you know, you say, well, okay, we couldn't ask the rat, "Are 19 you feeling bad today, Mr. Rat? Are you feeling less 20 depressed today, Mr. Rat? You know, how's your family 21 situation, Mr. Rat?" All we can do is we can see this 22 hyperirritability. It occurred. It's documented. You know, 23 it's not some incidental finding. It's something that was 24 demonstrated and seen and recorded in Lilly's in-house notes. 25 You know, and I'm getting back to this in a minute. 121 1 You people have seen documents that nobody else 2 has seen until this last two and a half months. These 3 documents have all been in hundreds of thousands of pages of 4 documents back at Eli Lilly and Company in Indianapolis. When 5 we got them, pursuant to the Court's order, they were stamped 6 confidential. We couldn't show anybody, we couldn't tell 7 anybody those documents. These were Lilly's own in-house 8 documents that demonstrate that the rats got hyperirritable. 9 Number Two, the dogs became aggressive. The 10 dogs became agitated and the dogs bit their handler, and they 11 weren't killing these dogs. These dogs were reacting to this 12 medication. Again, you can't say, "Fido, are you having a bad 13 day today?" You know, it's not -- it's something that you can 14 only see as to a particular reaction. These dogs are dogs 15 that had been in the Lilly laboratory for quite some time. 16 And the handlers and the dogs become like your pet and, you 17 know, it's unusual for a dog to bite their handler. 18 The cats. More graphic, more graphic evidence, 19 and you have all of this documented in your stack of -- I 20 mean, we've got a stack of exhibits. I mean, this is the 21 Plaintiffs' exhibits. Ninety-nine percent of them have got 22 confidential stamped on them. But, you know, Doctor Slater's 23 cat study talks about the cats who had always been friendly 24 and Doctor Slater calls them our friends. All of a sudden 25 begin growling and hissing and becoming unfriendly. The same 122 1 paper -- and this is a scientific paper that was published, 2 that same paper demonstrates that once these -- the dosage was 3 taken off, reduced or once the medication was stopped, the 4 cats returned to their usual friendly self. I mean, it's A, 5 B, C. You give the drug, the cats start growling and hissing, 6 you stop the drug, and the cats become friendly again. Okay. 7 Again, you can't ask Muffin, the cat, how he's feeling today. 8 You can't ask if there was something else that made him growl 9 or hiss. What you should do, though, is that should raise a 10 red flag, we know we're changing the brain chemistry. We know 11 we're affecting something that we don't really know how to 12 measure. Shouldn't we look closely at this and shouldn't we 13 maybe consider doing more detailed or more significant 14 clinical trials? Raises a question from the outset. 15 Let's start at the open-label studies. The 16 open-label studies demonstrate that humans became psychotic, 17 became agitated, they started demonstrating this stimulant 18 profile, this profile of CNS stimulation, toxicity, mania, 19 hypomania, early patient with schizoaffective and had to be 20 prescribed a major antipsychotic medication and then got 21 better after he was taken off the drug. Early human studies 22 indicated that this drug presented a potential problem for a 23 potential set of depressed people, some people that were 24 vulnerable to this particular medication, some people that 25 were vulnerable to start with. Remember, these are 123 1 individuals who are mentally ill. 2 There's something going on. There's something 3 that can't be explained. There's something that is different 4 here. Why are these people acting this way? Why is this 5 mania being increased? Why are we seeing this? Is there a 6 study done? Let's divide out the people who are psychotically 7 depressed; let's divide out the people that are agitated 8 depressed; let's take a slower, more careful look at this 9 medication and see if this is something that -- you know, 10 let's do a clinical trial. Let's specifically examine this 11 issue of agitation. Let's see here, before we start exposing 12 it to a lot of people who are especially vulnerable, let's see 13 here, let's do a clinical trial. We've got investigators; 14 we've got the drug; we've got all this computerized data; we 15 have everything available to run any kind of test we want to. 16 This drug is going to all of a sudden, when it 17 goes on the market, it's going to be given to thousands of 18 people who present a much broader spectrum of susceptibility. 19 But what do they do? They don't do any test specifically 20 designed to look at this agitation. They didn't do it then, 21 they didn't do it before approval, and they haven't done it 22 now. What did they do? Early, early on, we had Doctor Fuller 23 and we had the document, the early Prozac team meeting where 24 there was the description of the agitation that was being seen 25 in the early human studies and the recording there is from now 124 1 on, concomitant tranquilizer medicines will be used to control 2 the agitation. The Lilly clinical trials from that point and 3 that point forward employed the use of tranquilizers at the 4 investigator's discretion to control the agitation. 5 Additionally, the protocols and you have them, advise that not 6 only tranquilizers could be used, sleeping pills could be 7 used, chloral hydrate, and the dosage could be reduced at the 8 investigator's discretion. It's as simple as that. What they 9 did is they employed measures that would mask the effect of 10 this drug. It's as clear as it can be. The clinical trials 11 started off with not one drug being tested, but two drugs 12 being tested, Prozac plus a tranquilizer. 13 Went further than that. They excluded 14 individuals who were particularly susceptible to this 15 medication and that is serious suicidal risk. You heard 16 Doctor Brown from Dallas testify about how that skewed all the 17 Lilly clinical trial data. There was massive concomitant 18 medications used. There was sleeping pills used and then what 19 was done is another set of people who were high risk for this 20 problem were excluded, serious suicidal risk were excluded 21 from the clinical trials. 22 So the data that was submitted to the FDA at 23 the -- in the NDA in September of 1983 was data that was in 24 and of itself not reflective of the true profile of this drug. 25 The true profile of this drug didn't come forth early on with 125 1 the FDA because they had concomitant tranquilizers employed in 2 all the clinical trials. 3 Now, let's keep one thing in mind when we're 4 talking about tranquilizers here, benzodiazepines and things 5 of that nature. Joe Wesbecker had for some time been 6 prescribed the drug Restoril, which is a benzodiazepine, but 7 it was not, I repeat, was not under Doctor Coleman's testimony 8 or anybody's testimony, prescribed to reduce agitation. It 9 was prescribed for sleep. It is a short-acting 10 benzodiazepine. It is something that is gone by the time you 11 wake up. It puts you to sleep at night and is almost gone by 12 the time you wake up in the morning, so it's not affecting you 13 during the next day; that's why Restoril is Restoril, is to 14 help you sleep. And so it's designed to be gone by the time 15 you get up so you'll be able to be active during the day. So, 16 the toxicity studies show the Restoril was in the 17 200-milligram level in Joe Wesbecker's blood. It was within a 18 therapeutic range, but at the low level of therapeutic ranges. 19 It was not having an anti-anxiolytic effect on him at the 20 time. Plus, Doctor Greist said clearly that Restoril had no 21 effect on this as far as having an antianxiety effect on Mr. 22 Wesbecker. 23 So -- I just wanted make that point clear, but 24 back to the early clinical trials. We have seen that Lilly 25 was just fine with this drug until they submitted it in 126 1 Germany for approval and had a different set of scientists 2 looking at the drug. Let's see what they found. This is the 3 cover letter. You've got it, it's an exhibit in our stack. 4 This is the cover letter in May of 1985, transmitting the 5 medical comment on fluoxetine from the BGA. Here it is, the 6 medical comment on fluoxetine. Looky here. "The frequency of 7 side effects was very high, partly more than 90 percent, and 8 the side effects resulted nearly in each study in dropouts. 9 The frequency of side effects depended on the dose, the age 10 and the duration of therapy. Deciding for the clinical 11 significance of side effects is not only the frequency of the 12 side effects of their occurrence but also their severity. 13 "In 15 to 20 percent of the cases, side effects 14 occur which involve the central nervous system. As most of 15 them resemble the clinical picture of the underlying disease, 16 even from the theoretical reasons one has to expect an 17 intensification and not an improvement of the symptoms. 18 "During the treatment with the preparation, 19 sixteen suicide attempts were made, two of these with success. 20 As patients with a risk of suicide were excluded from the 21 studies, it is probable that this high proportion can be 22 attributed to an action of the preparation in the essence of a 23 deterioration of the clinical condition, which reached its 24 lowest point." The BGA picks it up almost instantly. What's 25 their conclusion? What's their summarizing opinion? 127 1 "Considering the benefit and the risk, we think this 2 preparation totally unsuitable for the treatment of 3 depression." Totally unsuitable for the treatment of 4 depression. That's February and May of 1985. 5 Then what happens next? Lilly scientists get to 6 looking at it and they, Doctor Schulze-Solce, one of the 7 doctors in Germany does this reply to the BGA list of 8 concerns. All right. What she, after a long, long, long 9 explanation of everything, what she concludes is if the drug 10 is used -- now, this is Lilly, this is not the BGA, this is 11 what Eli Lilly and Company is saying in September of 1985. 12 "If the drug is used according to the revised package 13 literature, that is, in agitated and suicidal patients, only 14 together with concomitant sedative drugs, there should be no 15 doubt on fluoxetine's positive benefit/risk ratio in the 16 treatment of depression." There it is. Right there, ladies 17 and gentlemen. Lilly's position. Lilly acknowledges that 18 this drug in agitated and suicidal patients should only be 19 used with concomitant sedative drugs. 20 Was this sent to the FDA? No. Absolutely not. 21 What was sent to the FDA leaves this out. You've got it. You 22 can read it. You check it, but this wording never went to the 23 United States Food and Drug Administration. In approving and 24 analyzing this drug as far as the safety of this drug, the 25 Food and Drug Administration never saw Lilly's own admission 128 1 that considering the benefit and the risk ratio there wouldn't 2 be any question about Prozac's safety if used only together 3 with concomitant tranquilizers in suicidal and agitated 4 patients. Doctor Coleman know this? No. Did any of the 5 physicians in the United States know this was Lilly's position 6 then? Not unless they worked for Eli Lilly and Company. 7 This is -- they can bring Doctor Wernicke in, 8 they can bring Doctor Fuller in, they can bring Doctor Leigh 9 Thompson, their vice-president and their chief medical 10 officer, but this is -- to give you all kinds of flimflam and 11 smoke and mirrors, this is black and white. You know, how can 12 they deny that their own people said this early on and how 13 can -- why didn't they tell the Food and Drug Administration 14 about this? Well, that was, you know, submitted to the BGA. 15 What does the BGA come back with? They come back with an 16 intent to reject. "We intend to refuse the registration. For 17 the drugs concerned, there is according to their specific 18 profile of adverse effects, the justified suspicion that they 19 have unacceptable damaging effects. The use of the 20 preparation seems objectionable as the increase in agitating 21 effect occurs earlier than the mood elevating effect, and 22 therefore an increased risk of suicide exists." 23 It goes on. "During treatment with the drug, 24 some symptoms of the underlying disease, anxiety, insomnia, 25 agitation increase which as adverse effects exceed those which 129 1 are considered acceptable by medical standards. Accordingly, 2 the product is rejected, the application is rejected. 3 Remember, remember, in looking at this, what you've got to 4 remember, and I don't have it blown up, I should have had it 5 blown up, but remember there was the issue and there's an 6 exhibit in there, there was an issue in October 1987 or early 7 December 1987, early on, but about a few weeks before this 8 drug was finally approved by the FDA and they wrote -- 9 remember we talked to Doctor Wernicke about it, and they wrote 10 to the Lilly chief regulatory scientist and they asked him. 11 They just had this, what is unacceptable damaging effects. 12 And Lilly wrote them at a critical juncture and said the BGA 13 didn't define unacceptable damaging effects when of course 14 they defined it. It's unacceptable because there's an 15 increased risk of suicide and because of this agitating effect 16 that is higher than you would normally see or consider 17 acceptable by medical standards. Did they mislead the FDA? 18 You bet they misled the FDA. Lilly responds, well, Prozac got 19 approved in Germany. You know, it was approved in December 20 1989, two years after it was approved in the United States, 21 two months after it was approved -- two months after this 22 occurred in September of 1989. 23 Looky here what the warning was recommended -- 24 what Lilly was recommending as the warning that the Germans 25 got at the time this shooting occurred on September 14th. The 130 1 warning that they were recommending to go in the German 2 package insert was "Fluoxetine does not act generally 3 sedating. Until the onset of depression alleviating effect, 4 the patients have to be observed adequately. In patients with 5 suicidal risk, continuous observation and/or a generally 6 sedating additional therapy may be necessary. In patients 7 suffering from agitation or marked sleep disturbance, 8 fluoxetine has to be used with special care." That's the 9 recommendation that Lilly was willing to accept in Germany 10 when this occurred in Louisville, Kentucky. 11 Obviously, Joe Wesbecker was suffering from 12 agitation. Obviously he was at a risk of suicide and we know 13 of two documented suicide attempts he made. Doctor Coleman 14 knew that. He read the medical records. He knew that this 15 patient was a risk of suicide. He knew he had been agitated 16 in the past. Doctor Coleman says, well, it didn't make any 17 difference what any product insert would have said, I wouldn't 18 have changed it at all, my treatment for Joe Wesbecker. Well, 19 that's not what he wrote down in his office notes; when he 20 said that was after this trial started when he was testifying 21 here live and in person after Mr. Stopher and Mr. Freeman had 22 had two meetings with him, after they had given him this 23 information that they hadn't told us about, hadn't told you 24 about, they had not given him all of this other scientific 25 information and Doctor Coleman has spent 30 hours working for 131 1 Lilly to bill Lilly for his work in this case. 2 Don't you think that you here in Louisville, 3 Kentucky, and where I live in Dallas, Texas, is entitled to 4 the same risk and warnings concerning something that's 5 inherent in a product? Why should those individuals in 6 Germany get more information about the risk of a product than 7 we do here? Isn't it a tragedy that this wasn't available 8 here in Louisville, Kentucky, on September 14th, 1989? 9 This is the German package insert that was 10 finally published in the German PDR. Risk of suicide. 11 "Fluctin does not have a general sedative effect on the 12 central nervous system, therefore, for his or her own safety 13 the patient must be sufficiently observed until the 14 antidepressive effect of Fluctin sets in. Taking an 15 additional sedative may be necessary. This also applies in 16 cases of extreme sleep disturbance or excitability." 17 Why should you let Lilly argue to you that by 18 virtue of where you live will affect whether or not you get 19 full and complete information concerning the risk and dangers 20 of a product. Is this drug unreasonably dangerous? Is it 21 defective? Should it have a better warning? Obviously so. 22 Obviously it's unreasonably dangerous and defective. 23 Obviously the warning is not adequate. 24 Let's talk about dosage one second. You know, 25 10-milligram dosage didn't come out on this product until 132 1 years after this tragedy occurred. They were testing 5 2 milligrams, 20 milligrams and 40 milligrams back in 1985. 3 Here's what their chief scientific officer said when there was 4 thought after tremendous pressure from a lot of psychiatrists 5 for a lower dosage than 20 milligrams, which Wesbecker was on, 6 and 10 milligrams was under consideration. You remember this 7 document. You remember a lot of conversations we had with 8 Doctor Leigh Thompson about this. This is Doctor Leigh 9 Thompson. It's June 11th, 1989. It's to Charles B. Sampson, 10 one of their statisticians. It says, "Charlie, let me ask for 11 your help in putting together two slides for the board. I've 12 got to say something about 10 milligrams, both in regard to 13 attributes and to the logistics of when we will file in the 14 U.S. International filing is a big, big problem. I don't 15 think we have any 10-milligram efficacy data. We do have the 16 Wernicke study of 5 milligram versus 20 and 40. Some people 17 have massaged this data to make five milligrams look not quite 18 as good as 20 milligrams. I'm not sure I know how that 19 massage was done, but I'd probably need some slides to show 20 whatever it was that makes it look less good." 21 Is it appropriate to mean massaging data to make 22 a lower dosage look less good when we all know that the 23 side-effect profile has been proved conclusively here. The 24 side-effect profile of this drug is entirely dose related. 25 Doctor Greist, everybody testified that when patients become 133 1 agitated or anxious or nervous on this drug, they either 2 reduce the dosage or they prescribe a concomitant tranquilizer 3 medication. The only thing that was available, though, in 4 1989, in September of 1989, was 20 milligrams. It probably 5 was four times too strong than it should have been. It 6 probably still is twice as strong as it should be. Remember, 7 this is a drug that has admitted to the fact that they have 8 not established the lowest efficacious therapeutic dose. It's 9 not been established. And yet they don't even know how much 10 it raises or lowers the serotonin level. 11 This product is defective, unreasonably 12 dangerous and produces an unreasonable risk of harm because it 13 is at 20 milligrams way too strong. They knew it. Remember, 14 the 10-milligram studies were canceled by the chairman of the 15 board, Mr. Wood. You have that document. 16 How are we doing on time, Your Honor? 17 JUDGE POTTER: You have plenty of time left. Do 18 you want to know how much? Forty minutes, Mr. Smith. Do you 19 want to break? 20 MR. SMITH: No, I'm fine. I'm feeling better. 21 Thank you, Judge. 22 Let me tell you something and I don't mean to 23 interrupt my argument. You-all have probably been wondering 24 why this week had been so slow, you come, sit around, and it 25 seems like the case is struggling all week. Marcia did it, so 134 1 you-all would be here for her birthday. I want to talk to you 2 about -- I waited until she was outside to say it. 3 I want to talk to you about -- more about the 4 adequacy of the warnings in connection with this dangerous 5 product. This is the blowup of the Prozac package insert. 6 I'll move a little closer so you can see it, if you don't 7 mind. This is the famous listing of adverse events that have 8 been reported in connection with this drug. Is Lilly fairly 9 and accurately reporting the adverse events in connection with 10 this drug? If you look -- and you have this in your exhibits. 11 If you look here under nervous system, you see a lot of things 12 listed as potential side effects of this drug. Notice these 13 words are not mentioned. The doctor is not apprised of these 14 particular reactions. No agitation, no hostility, no 15 violence, no mania, no delusions, no psychosis, no CNS 16 stimulation, no psychotic depression, no suicide attempt, no 17 overdose and no worsening of depression, which is suicidal 18 ideation. None of these are reported here, but we know it's 19 occurring. We know it happens. We know this is occurring in 20 the use of the Prozac because here is the spontaneous 21 reporting system. This is just simply a compilation of that 22 big thick computerized database that we gave you as exhibits. 23 Look under depression and suicide, 933 24 depressions; psychotic depression 1114; overdose, suicide 25 attempt, over 4,830 reports of depression and suicide. Not a 135 1 word mentioned about it in the package insert. Stimulation 2 effects, agitation, anxiety, CNS stimulation, emotional 3 lability, insomnia, abnormal dreams, manic reaction, manic 4 depressive reaction, 4,128 reports. Violence and aggression, 5 not a word here about violence and aggression. Aggravation 6 reaction, 745; antisocial behavior, 4; hostility, 664 reports; 7 irritability, 940 reports; paranoid reaction, 139 reports; 8 intentional injury, 373 reports. Two thousand eight hundred 9 and sixty-five reports of this, up to July 1993. Violence and 10 aggression mentioned in the Prozac package insert as being a 11 potential side effect of this drug? It's obvious from looking 12 at this postmarketing data that it's occurring but it's not 13 being warned about in the package insert. Psychosis and other 14 severe mental dysfunction, over 3,751 reports. 15 The doctors and the patients in this country 16 deserve the full story concerning the risks and benefits of 17 this drug, and Lilly's not giving it to them in the package 18 insert. This product is defective and unreasonably dangerous 19 because Lilly is not providing an adequate warning concerning 20 the risk of the drug. 21 Did Prozac -- was Prozac a substantial factor in 22 causing Joseph Wesbecker to commit this act? This is data 23 that Lilly doesn't have control over. This is the 1639 data, 24 the spontaneous reporting data that is submitted by physicians 25 in this country. This is what physicians see and observe who 136 1 are not under the thumb of Lilly. Hostility and intentional 2 injury. Obviously that's what we have here. Do -- this is 3 the percent of total reports of all events for each drug. The 4 dramatic thing here, the dramatic thing here is the difference 5 in the percentages. Let me see if I can add percentages; 1.6 6 and .08 is, what, 2.4. Right. Trazodone, this is the drug 7 that Joe Wesbecker was on before he was switched to Prozac. 8 .04 and .01, that's .05; amitriptyline .06, .1 -- or .0.6, 9 that's .07; desipramine, .06; maprotiline, .04. 10 Why is Prozac being reported at three or four 11 times a higher incidence of hostility and intentional injury 12 than these other antidepressants? Why is that? And, again, 13 this is percentage. This is not explained by virtue of the 14 fact that there's more Prozac being prescribed. This is the 15 percent of total reports. It's three to four times. I don't 16 know whether it is statistically significant. Obviously, it's 17 statistically significant. Probably even in Doctor Wernicke's 18 terms. 19 Look at more spontaneous domestic reports. This 20 is from January 1982 until July 1991, again this is part of 21 your exhibits. 349 on Prozac; 12 on Trazodone, the drug Joe 22 Wesbecker was taken off of before he was put on Prozac; 7 on 23 amitriptyline; 9 on desipramine; and 5 on maprotiline. I 24 mean, bring in a bunch of statisticians. Bring in a bunch of 25 forensic, you know, at $4200 a day, forensic prostitutes to 137 1 explain this. I mean, this is black and white, ladies and 2 gentlemen; this is why you're here; this is why this lawsuit 3 exists because you got the common sense to see this. This 4 drug is causing people to commit hostile acts. This is 5 causing people to intentionally injure people. It's being 6 reported, you know. Okay. Is 349 unreasonably dangerous? 7 You know, I don't know. But, remember, these drugs have 8 been -- other drugs have been in existence since 1982. They 9 had a five-year start on Prozac, six-year start on Prozac. It 10 didn't start until 1988. I mean, you know, I guess if I had 11 any mathematical sense about me I'd be a statistician but, I 12 mean, it just seems to me that this is difficult to explain; 13 that there is something here; that there's something about 14 this drug that is causing people to commit hostile and 15 intentional acts. Especially, you know, it's not just this 16 number, but it's compare this number versus these other 17 numbers. You know, it's phenomenal the difference in the 18 postmarketing reports. And, again, Lilly doesn't have control 19 over this data. 20 And here's head-to-head reports per million 21 Prozac versus trazodone. Again, there wasn't any Prozac in 22 existence until 1988. Look at these levels of reports of 23 hostility and intentional injury on trazodone. Look at this 24 through here. Nothing, it's nothing. Look at Prozac. I 25 mean, look how high it goes, it jumps up to 21 reports per 138 1 million. And don't buy this argument that Lilly makes, well, 2 the national average of hostility per million people is far 3 greater than this. Well, that takes into account all kinds of 4 people. Depressed people aren't likely to commit hostile acts 5 and acts of intentional injury. You know, it seems striking 6 to me. I think it's a significant piece of evidence. 7 Let's put it all in focus. Let's get the drug 8 back with Joe Wesbecker. August 1989, he's put on Prozac, 9 starts Prozac 20 milligrams per day. Now, this is written by 10 Doctor Coleman before this happens when he doesn't have 11 anything to gain or lose, he's testified in his deposition -- 12 we already had him pinned down before Lilly got to him -- that 13 he was doing his best to make an observation of the patient's 14 demeanor, the patient's condition, and the effect of the 15 medication on the patient. I mean, at this time he doesn't 16 have anything to gain or lose. I mean, he said in his 17 deposition that it didn't ever appear to him that Joe 18 Wesbecker was deceiving him or that he characterized him as a 19 deceitful person, but what is really important here I think or 20 one of the important things is here is this man is -- Doctor 21 Coleman is just recording his observations. You know, 22 Wesbecker's physical appearance. Remember, he testified -- 23 this is not the notation, but he's testified what I wrote down 24 when I first saw him was nervous and I could tell before he 25 said anything that there was a drastic change in his 139 1 appearance. It changed. His first words in describing what 2 he saw was "Patient seems to have deteriorated." He didn't 3 use the word deteriorated and I'm sure you will look in each 4 notation in the exhibit. He didn't use the word deteriorated 5 to describe Joseph Wesbecker in any of the notes. 6 He mentioned in a letter to Standard Gravure to 7 get him off on long-term disability that the patient's 8 condition had deteriorated earlier on, but never does he 9 describe this type of deterioration. He says, "Patient seems 10 to have deteriorated. Tangential thoughts." There's never 11 been any record of tangential thoughts until he's on Prozac. 12 "Weeping in session." Never before had Joseph Wesbecker cried 13 in session. "Increased level of agitation and anger." What 14 we've been talking about the last 30 minutes, agitation, 15 anger. "Question from Prozac. Patient states he now 16 remembers sexual abuse by co-workers and has called sex crimes 17 division of police." He's having a delusion. Doctor Coleman 18 testified that what he was recalling was an incident where 19 apparently he was -- Prozac helped him remember -- Mr. 20 Wesbecker ties this to Prozac, Prozac helped him to remember 21 an incident where he was going to be -- he was being forced to 22 perform oral sex on a supervisor with his co-workers watching. 23 Well, of course, it obviously didn't happen. It was a 24 delusion. It didn't occur. But now Mr. Wesbecker, since he's 25 now under the influence of this drug, since he's in the throes 140 1 of this same syndrome that had been seen as early on as 1978 2 in the other patient who was schizoaffective in Doctor 3 Slater's study who had to be taken off the drug, it's the same 4 thing. "Question from Prozac. Because of deterioration I 5 encouraged patient to go into the hospital for stabilization." 6 Now he's unstable. He's never -- Doctor Coleman had never 7 recommended that Mr. Wesbecker go to the hospital before. 8 Never. I mean, the difference in this notation and the other 9 notations are dramatic. "Plan: Discontinue Prozac, which may 10 be cause." There is Doctor Coleman printed in black and 11 white, wrote it down, typed it up before it happened. He put 12 Prozac as the cause of this man's condition. 13 Was Prozac a substantial factor in Joseph 14 Wesbecker's actions on September 14th, 1989? Read these 15 words. Read these words. Dramatic change. The instructions 16 that you have define -- don't define substantial factor, but 17 it makes clear that such defective condition of Prozac was and 18 judge -- this is very important, a substantial factor, a 19 substantial factor, he doesn't say the only factor in causing 20 his actions. He doesn't say "the" substantial factor in 21 causing his actions; he says "a" substantial factor. 22 Obviously the reason for that is, is that there were several 23 factors involved in Joseph Wesbecker's life. Judge Potter, in 24 Instruction No. 2, tells you that because Joseph Wesbecker 25 pulled the trigger that shot the plaintiffs, that Mr. 141 1 Wesbecker is going to have to bear some of this fault. 2 I told you in opening argument that our case was 3 that Prozac was a substantial factor in causing his conduct; 4 not the only factor but a substantial factor. Your job, in my 5 judgment is, is to determine how much of this is related to 6 Prozac, how much of this is related to some voluntary action 7 on the part of Joseph Wesbecker and how much is related to 8 Standard Gravure. It looks to me like those are your options. 9 I don't think Standard Gravure, frankly, bears 10 any responsibility or any fault in this case. Judge Potter 11 doesn't ask you in Question Three whether or not Standard 12 Gravure should have taken Joseph Wesbecker off the folder 13 sooner or whether or not they discriminated against him 14 because he was mentally ill, he says that they had a duty to 15 exercise ordinary care to protect its employees and others 16 from criminal acts of Mr. Wesbecker if it knew or should have 17 known that such conduct was likely. And, again, if such 18 conduct was likely. 19 Well, let's think about that a minute. All 20 right. Let's assume that Mr. Lucas, and it's denied, but 21 let's believe Mr. Lucas, that he went and told his supervisor 22 and his supervisor told Mr. McCall that Joe Wesbecker -- the 23 threat was that -- it was related in September of 1989 -- was 24 that Joe Wesbecker was going to fly a model airplane into the 25 naphtha recovery system and explode the plant by virtue of a 142 1 four-foot wing span model airplane. Well, think about what 2 would have happened if Standard Gravure had called the police. 3 The police would have come out to Standard Gravure, probably, 4 and this is reasonable to assume, and they would have said, 5 well, does -- you're saying this Mr. Wesbecker, is he some 6 aeronautical engineer? Does he have a four-foot model 7 airplane? Does he have any explosives? Has he threatened 8 anybody? Is Mr. Lucas credible? There's several people that 9 questioned the credibility of Mr. Lucas. I think that the 10 threat, if it was presented to Standard Gravure, wasn't the 11 type of threat that a reasonable person would have felt like 12 presented any risk of harm to the people at Standard Gravure 13 because the testimony was the naphtha recovery system wasn't 14 even explosive. It wouldn't explode. Well, let's say that a 15 policeman went out there and investigated Mr. Wesbecker, would 16 he have found the model airplane? No. Would he have found 17 some explosives? No. I mean, he probably wouldn't have had 18 probable cause to go in there and do anything. Remember, 19 Joseph Wesbecker had been off of the job since August of 1988. 20 This primary stressor that had been a problem for him for 21 quite some time didn't re-emerge until he started taking 22 Prozac again. In other words, you know, Mr. Gosling said that 23 Joe Wesbecker was at peace; that he felt like justice had been 24 done after Joe had been placed on long-term disability; that 25 Joe seemed happy and relieved to be on long-term disability. 143 1 There's nothing in the office notes about any 2 anger at work until, you know, all of a sudden Mr. Wesbecker 3 remembers this incident at work, this sexual incident at work. 4 Well, he hadn't been there in a year. I mean, it had to have 5 been a delusion. 6 And, remember, Doctor Greist -- I mean, Doctor 7 Granacher, the forensic psychologist, says that he notes that 8 Mr. Wesbecker was delusional on two occasions; that he was 9 delusional here when he was in Doctor Coleman's office, and 10 that he was delusional at the time -- he was half delusional 11 at the time that he was doing the shooting at Standard 12 Gravure. No delusions until Prozac. 13 One other loose end that I want to address is 14 the responsibility of -- or the issue of, well, if Prozac was 15 going to cause Joseph Wesbecker a problem, why didn't it cause 16 a problem in June of 1988? I think that he was on it for 20 17 something days or less than 21 days. The reason for that is, 18 it's obvious in the medical records that Mr. Wesbecker's 19 lithium level was off at that time and his lithium level was 20 too high. They did a blood test that showed it was 1.5, I 21 believe. That is too high. That was Doctor Breggin's 22 explanation for why Mr. Wesbecker was sleepy, fatigued in June 23 of 1988, when he took Prozac for a short time. His lithium 24 level was wrong. Doctor Greist, the lithium expert, says yes, 25 if your lithium level is upset, then it can cause you to be 144 1 fatigued. 2 In your apportionment under Instruction Four, 3 the Judge instructs you that, "In determining the percentages 4 of fault you shall consider both the nature of the conduct of 5 each of the entities you have found to be at fault and the 6 extent of the causal relationship between the conduct and the 7 damages claimed." The nature of the conduct. Think of all of 8 this in connection with all of the evidence you've heard about 9 the dangerousness of Prozac, how it causes this particular 10 reaction. You know, if Joe Wesbecker had gone in complaining 11 on September 11th, 1989, of a headache and nausea, there 12 wouldn't be anything to talk about. But here he's 13 complaining, he's exhibiting this same side effect symptoms 14 that had been hidden, that had been controlled and had not 15 been warned of for years and years by Lilly. 16 I feel a real need to go on and say more, but I 17 feel that my comments today have been somewhat not as 18 organized as I would have liked, but my thinking going into 19 this was that you people have heard this case for two and a 20 half months and that you people know where you are on this. 21 I'm confident, I'm confident that we've presented a case that 22 Prozac is unreasonably dangerous and is defective. I'm 23 confident that it was a substantial factor in causing this 24 tragedy on September 14th, 1989. You know, it was like the -- 25 it's like the -- somebody raked up some dry leaves and maybe 145 1 consider Joe Wesbecker as, you know, in autumn people rake up 2 the leaves and those leaves there don't present any risk. Joe 3 Wesbecker and those leaves in this pile are no different 4 before he gets Prozac, but somebody flips -- a careless smoker 5 flips a cigarette into that pile of leaves, which otherwise 6 presents no danger, and that cigarette ignites these leaves; 7 that's what happened here with Prozac. The leaves would never 8 have burned had it not been for this cigarette. 9 These people's lives would not be ruined were it 10 not for Prozac. These people get up in the morning and go to 11 bed at night with their loss. It's obvious here that nothing 12 will compensate them for their loss. Some people wake up 13 alone that had partners before September 14th, 1989. Some of 14 these women will go through their lives with just memories; 15 others will go through their lives with permanent injuries. 16 We've had the BGA; we've had the FDA; we've had 17 Lilly psychiatric advisory board; we've had the FDA; we've had 18 the PDAC. They issued their talk paper. The fact is the PDAC 19 didn't hear any of this that you've heard. You're the people 20 that have heard the evidence concerning the risk and dangers 21 of this product. You know that Prozac caused these people's 22 tragedy. I wish I was as eloquent as Mr. Stopher. I wish I 23 felt better. I am tired. You're tired. Everybody has been 24 through this. You know, a lawsuit for lawyers is like the tip 25 of an iceberg. You only see from the time you're in here. I 146 1 know you've given the last two and a half months. I can't 2 tell you how important this case is for these people. You 3 know, everybody has said, you know, you get this FDA talk 4 paper and it says Prozac, there's no credible evidence of any 5 relationship. You've seen the credible evidence. You've seen 6 Lilly documents themselves. Remember the report from Doctor 7 Heiligenstein to Doctor Thompson that says yes, we've assigned 8 reasonably related to several reports of violent behavior in 9 connection with Prozac. They assigned it. Lilly knew it. 10 Lilly was given a different warning. 11 I thank God for you. My clients thank God for 12 you, that you're not going to be flimflammed by a bunch of 13 psychiatrists and psychologists and corporate executives into 14 not seeing what's as clear as the nose on your face. It's in 15 black and white. This was a substantial factor in these 16 people's change. Their lives will never be the same. 17 We thank you. We thank you so much for your 18 attention. You are good people. You are conscientious 19 people. You're intelligent people. You're what stands 20 between right and wrong. Every day our jurors, like you, 21 especially like you, are the ones that make these tough 22 decisions. You're going to be guided by the evidence you have 23 seen and heard here. You've examined the demeanor of the 24 people. You've examined the demeanor of the lawyers. You've 25 examined the conduct of Eli Lilly and Company. You've put 147 1 under a microscope the life of Joseph Wesbecker. It's like 2 Wesbecker and the drug came together. His mental illness 3 started about the time, '78, about the time these clinical 4 trials were going. It was like their tragedy was inexorably 5 tied to this drug. Thank you so much for your consideration. 6 Thank you so much for your attention. Your service will never 7 be forgotten by me or my clients. Thank you. 8 JUDGE POTTER: Okay. Ladies and gentlemen, that 9 completes the closing arguments. As I've mentioned to you-all 10 before, what now remains is for the case to be submitted to 12 11 of you for a decision. Let me tell you, we'll have the 12 originals of the exhibits brought to you in the jury room 13 shortly. They'll come to you in a very organized fashion, but 14 please feel free to take them apart or use them or whatever 15 you want to do. Also, you have the duplicates of whatnot 16 that's been given to each of you as the trial goes on and you 17 have those available to you. 18 You have your notes. I'm going to give you the 19 same caution I gave you in the very beginning about your notes 20 and part of this is to the people that have taken -- I think 21 all of you have taken notes at one point or another, but these 22 are to the people that have taken notes on a particular topic. 23 Your notes are just an aid; they're there to help you. Okay? 24 Don't be a person that if it's in your notes don't listen to 25 anybody else because your notes says it there, and if it's not 148 1 in your notes don't refuse to listen to anybody else because 2 it's not in your notes. Your notes can be wrong just like 3 anybody else. Do not be a slave to your notes. To those of 4 you on a particular day or particular time that didn't take a 5 note, don't be intimidated by somebody that did. Your memory 6 is just as good as their note or their memory plus a note, and 7 there are certain jurisdictions and certain judges that would 8 now collect your notes and not let you take them to the jury 9 room, and the purpose of that would be to prevent the abuse or 10 the intimidation or whatever I've just talked about. I let 11 you take them because I think you-all put a lot of effort into 12 them, and I told you in the beginning I would let you take 13 them. I don't think it would be fair to change the rules 14 halfway through. Okay? But I caution you about the use of 15 them. 16 I'm going to start at the end of some things. 17 When you reach a verdict -- I'll give the original of these 18 instructions to my sheriff. When you reach a verdict, knock 19 on the door and advise my sheriff. If you should have a 20 question during your deliberations, knock on the door and 21 advise my sheriff, but I can tell you her first comment to you 22 would be please write it down, so if you do have a question 23 you can save yourself a trip. 24 As I said, it will be up to you whether you 25 deliberate on Saturday, but I will ask that when you first go 149 1 back you-all make that decision and advise my sheriff so we 2 can notify the various departments and the people that are 3 going to have to be here if you're going to be here on 4 Saturday. The sooner the better. And I will give you the 5 option of half a day on Saturday or whatever you want that 6 way. Just let us know as soon as you can. 7 As for tonight, you can deliberate as long as 8 you want to. My schedule would be on a normal day if you're 9 here on Monday, I'm going to ask you to deliberate at least 10 from nine to five or eight-thirty to five-thirty, and then it 11 will be up to you whether you want to go beyond that or not. 12 As far as tonight goes, and by making these arrangements I'm 13 not suggesting that your deliberations will take any length of 14 time or should take any length of time. I just have to plan 15 for all eventualities. As far as tonight goes, if you-all 16 would like supper brought to you, advise my sheriff, there's a 17 sandwich and soup and whatnot list and you can check it off, 18 and they will bring it to you in the jury room. It takes 19 about 45 minutes, so, you know, that will help you plan that 20 if you decide to take advantage of that. 21 Obviously, there is a telephone available for 22 anybody that wants to advise my sheriff, step out and use the 23 telephone to advise the family member of anything. We have 24 agreed since the clerks have gone home that we will allow the 25 Court Reporter to draw an alternate. 150 1 Ms. McBride, would you step up here, pick out 2 three envelopes, show them to Ms. Zettler and, Ms. Zettler, if 3 you'll then pass them over to Mr. Stopher. And you can then 4 pass them up to me. 5 JUDGE POTTER: Madame Sheriff, would you step up 6 here and be sworn. 7 8 SHERIFF CECIL, after first being duly sworn, 9 proceeded as follows: 10 11 JUDGE POTTER: Okay. Ladies and gentlemen, 12 would all of you with the exception of Mr. Fitch, Ms. Ryan and 13 Ms. Jones, please go with my sheriff. I'm going to ask the 14 three of you to wait. That's Mr. Fitch, Ms. Ryan and Ms. 15 Jones. I'm going to ask you to wait a second. 16 JUDGE POTTER: Mr. Bailey, were you-all riding 17 together or anything? 18 JUROR BAILEY: Yes. 19 JUROR RYAN: I'll take him home. 20 JUDGE BAILEY: I just advised him he should let 21 me know if he takes the bus. 22 JUDGE POTTER: Ms. Ryan says she'll give him a 23 ride, so that's taken care of. I'm sure the three of you at 24 this point thought -- Ms. McBride, could I get you to shut the 25 door? 151 1 I'm sure the three of you at this point thought 2 I was going to thank you and then excuse you. I'm not going 3 to do that. There is the possibility, probability, 4 possibility, whatever, I'm not going to say whether it's 5 likely or not that I could need your services further. Okay? 6 So what I'm going to do is recess you-all until I get in touch 7 with you and ask you to come back down here. Okay? And what 8 I'm going to do -- Mr. Fitch, you're retired; is that right, 9 sir? 10 JUROR FITCH: That's right. 11 JUDGE POTTER: And, Ms. Ryan, are you likely to 12 be away from your home for a long time? 13 JUROR RYAN: I'll be at work. 14 JUDGE POTTER: Okay. Let me check your -- your 15 number is correct on the back; is that right? 16 JUROR RYAN: Yes, sir. 17 JUDGE POTTER: And, Ms. Jones, you'll be I guess 18 going back to work, too; is that right? 19 JUROR JONES: Uh-huh. 20 JUDGE POTTER: I won't be in touch with you 21 until Monday, but what I'm going to ask you to do is 22 throughout this weekend or starting with Monday morning be 23 either at your home or at your work where I can get you here 24 within three hours. What that means is -- what's the number 25 back here, 595-4000? 152 1 SHERIFF MOSS: Yes, Your Honor. 2 JUDGE POTTER: Okay. 595-4000 is the number 3 here in the sheriff's office, and what that means is if Monday 4 you go someplace, what you need to do is call in and then call 5 back three hours later and say that I'm now at work if you 6 need me. All right? I'm going to give you the same 7 admonition I've given you before about talking about this 8 case. All right. And it's going to be very difficult to not 9 let somebody communicate with you about this case. Let me 10 tell you this. I will have somebody call your home or your 11 office probably at noon and at 5:00 every day to check with 12 you and let you know what the status is. We won't forget 13 about you. All right. And it's going to be doubly important 14 that you not watch the news or the newspaper about this. I 15 can guarantee you, you know, things are -- importance of 16 things go up and down in the news and this is probably an 17 important day for this case in the news, so I can guarantee 18 you if you turn on your TV tonight, there's going to be some 19 very attractive man or woman telling you what's important that 20 went on today or tell you something that, you know, that 21 happened in the trial that should have been mentioned today 22 and wasn't or whatever. Okay? I don't know what they'll say. 23 But because of that I'm going to ask you to be very careful 24 about watching the news and very careful about reading the 25 newspaper on this. Okay? So don't let anybody -- also your 153 1 family members I guess are going to see it on the TV and 2 they're really going to jump on you to tell them what it's all 3 about. 4 JUROR RYAN: I don't have any family here. 5 JUDGE POTTER: Well, your friends then or 6 whatever. Okay. So I just can't emphasize important enough 7 because you-all are still potential jurors to participate in 8 this case and if something happened to somebody, we -- we 9 might need you later on in this case, and I don't want you to 10 disqualify yourself by doing something you're not supposed to. 11 I know this is taking a long time, but I just want to 12 emphasize it very, very much. All right? Do not let anybody 13 communicate with you and that also includes communicate with 14 you through the newspaper or the television. Don't discuss 15 the case with anybody, including each other, and do not form 16 or express opinions about it until I finally discharge you. 17 The three of you-all are discharged. Go on out 18 through your normal door. Thank you very much. I'll have 19 Marcia meet you there and take your folder and put them where 20 she normally puts them. All right. 21 (THREE JURORS EXCUSED; HEARING IN CHAMBERS) 22 JUDGE POTTER: We have the records of Doctor Lee 23 Coleman. Included in the records of Doctor Lee Coleman is an 24 article published February of '88. Why should it -- what is 25 the relevance of it, Mr. Myers? 154 1 MR. MYERS: Judge, the article that's in there 2 has to do obviously with fluoxetine. It is contained and was 3 contained in the certified records that we obtained from 4 Doctor Coleman. It was part of his file on this patient. It 5 predates the events in question and can reasonably be said to 6 go to his state of knowledge about fluoxetine and the 7 sufficiency of the warnings for fluoxetine, the side effects, 8 the risks, the benefits, et cetera. 9 JUDGE POTTER: Was there ever any testimony that 10 he had that in his file before September 11th, 1989? 11 MS. ZETTLER: No. Absolutely not. That was 12 never in his chart. How that got into a certified record, I'm 13 not sure. 14 JUDGE POTTER: No. No. No. He simply 15 certifies this as his chart. So without evidence that it was 16 in there before Doctor Coleman saw Mr. Wesbecker for the last 17 time, it can't have any value as having influenced him or been 18 something he knew. To come in as a medical chart you have to 19 come in as being -- I don't want to pull out the rule book, 20 but it has to be something done for treatment and whatnot. 21 Also, I find that its appearance in there is going to create 22 more confusion. The jury will start -- even if it had some 23 value for its content in the sense that it's a nice article 24 about drugs and it's a learned treatise, when it appears in 25 this thing this way, it's likely to confuse the jury. So I'm 155 1 taking out something called International Drug Therapy 2 Newsletter of February 1988, Volume 23, No. 2. 3 MS. ZETTLER: It's got a Coleman number down 4 there. 5 JUDGE POTTER: Doctor Coleman number is 700397 6 through 700404. 7 MS. ZETTLER: One other thing, Judge, real 8 quick. It's my understanding that the Defendants at the 9 beginning of this made some sort of motion to keep out results 10 of the inquest, et cetera, et cetera, the coroner, okay. 11 Lilly has agreed to take out all of the letters that had come 12 in, that had been included in these various medical records, 13 asking for documents or something or testimony at the 14 coroner's inquest. Now we see in the record here the 15 postmortem examination of Joseph Wesbecker, which has never 16 been authenticated or made part of the record. The part that 17 has is the drug toxicology portion which we have no objection 18 to, but we have an objection to putting in the postmortem 19 examination of Mr. Wesbecker when it has never been discussed, 20 entered, authenticated or anything. And it's not relevant. 21 MR. MYERS: Our position on that is, Judge, that 22 the postmortem is not, per se, part of the coroner's inquest. 23 There can be a postmortem without a coroner's inquest. In 24 this case, there was a postmortem done on Mr. Wesbecker which 25 included certain toxicology studies. My concern is if you 156 1 take the postmortem report out it gives undue emphasis to the 2 toxicology reports only, when in this case a postmortem was 3 done routinely, as was the toxicology screen, and thus it's a 4 routine series of reports. To take out part of it when part 5 of it clearly needs to get put in the record, that is the 6 toxicology, will give undue emphasis to the toxicology, and I 7 think they should both stay in there as routine reports. 8 JUDGE POTTER: The toxicology has been 9 introduced in its own way; right? 10 MR. MYERS: Yes, sir. 11 MS. ZETTLER: Right. This other document has 12 never been introduced. Our discussion about this book earlier 13 was that we would have no objection to putting it in in this 14 format in a three-ring binder, but we've never waived an 15 objection to having the opportunity to object to documentation 16 or exhibits that were never properly admitted into evidence. 17 JUDGE POTTER: Well, a lot of this stuff was 18 never properly admitted into evidence because it's got some 19 kind of certificate on it. At this point it comes in just as 20 a record. I mean, I don't gather... 21 MS. ZETTLER: Lots of it came in through his 22 deposition. I think all of it has, Judge. 23 MR. MYERS: Others are self authenticating. 24 JUDGE POTTER: I'll find one. I'll find one. 25 How about Schramm? 157 1 MS. ZETTLER: Schramm's came in through his 2 deposition. Buchholz testified. 3 JUDGE POTTER: Our Lady of Peace. 4 MS. ZETTLER: Right. The custodian was in here 5 to authenticate that. 6 JUDGE POTTER: How about Doctor Winders? Don't 7 remember him. 8 MR. MYERS: He didn't testify. 9 MS. ZETTLER: He didn't testify but his record 10 was also part of one of the other hospital records. 11 JUDGE POTTER: I'm at the position that you're 12 probably right, but if you're -- in a way I think maybe Mr. 13 Myers has been misled because they could have gotten -- who 14 did this? 15 MS. ZETTLER: These aren't even certified, 16 Judge. 17 JUDGE POTTER: Weakley-Jones. They could have 18 gotten Weakley-Jones down here and she would have put it in. 19 MS. ZETTLER: But they didn't and they don't 20 even have certified records. 21 JUDGE POTTER: But it's been sitting there in 22 the book the whole time. There's no question about it. Is 23 there anything in it that is objectionable, I mean, factually 24 that you think is prejudicial? 25 MS. ZETTLER: It doesn't say anything in here 158 1 about Prozac. 2 MR. MYERS: That's why they sent it out for a 3 tox screen. 4 MS. ZETTLER: Well, it's got almost everything 5 else in there but Prozac. 6 JUDGE POTTER: Don't they have it here at the 7 end? 8 MR. MYERS: And I think it's referenced on one 9 of those other pages. 10 MS. ZETTLER: And, Judge, this wasn't in there 11 before, okay, because I would have objected to it before if it 12 was in there before. 13 MR. MYERS: That was the whole set of records. 14 MS. ZETTLER: No, it wasn't, Larry. 15 JUDGE POTTER: Let me put it the other way, Mr. 16 Myers. What is there in here that's halfway important? 17 MR. MYERS: What's important is the fact that 18 simply there was a routine postmortem done, a routine 19 postmortem toxicology done, and if you take the postmortem out 20 you're simply giving undue emphasis to the toxicology report 21 and the drug screen. And the reason the entire forensic file, 22 if you will, should be in there is because it was a routine 23 record made after this man's death, which included a drug 24 screen. It's not the contents of the postmortem, per se, 25 rather, it's the routine nature of the entire report and 159 1 you're not putting the entire package in. 2 JUDGE POTTER: Okay. I'm going to overrule your 3 objection to the postmortem. 4 MS. ZETTLER: Just so the record's clear, that 5 was not in there before and it was never entered appropriately 6 into evidence. 7 JUDGE POTTER: You mean there was no R tab? 8 MS. ZETTLER: No. The part that was in here was 9 the toxicology report, not the postmortem. 10 MR. MYERS: I'm not going to argue that point at 11 this point, Your Honor. 12 JUDGE POTTER: Let me say this. What we need -- 13 let me have those. Will you give me 12 of your things. 14 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 15 PROCEEDINGS OCCURRED IN OPEN COURT) 16 SHERIFF CECIL: The jury is now entering. All 17 jurors are present. 18 JUDGE POTTER: Ladies and gentlemen of the jury, 19 it's my understanding that you do not wish to commence your 20 deliberations this evening and you do not wish to deliberate 21 on Saturday; is that right? Okay. As I told the people, at 22 least we've got a group that doesn't look like it has trouble 23 making decisions and it looks like that's what you-all are 24 going to be doing. 25 I'm obviously going to give you the same 160 1 admonition. All right? And before what I've done is, you've 2 probably thought, well, I've got time to turn off the 3 television if it starts or if something is in the paper, I'll 4 kind of avoid it. You know what I mean. I'm going to ask 5 you-all to be doubly careful over the weekend because 6 obviously when a trial first starts and even more importantly 7 when a trial ends, that's when the media, the radio and the 8 things like that are on. And I can guarantee you that if you 9 go home tonight and you turn on the news, the first thing 10 you're going to hear -- maybe not the first, but I know it 11 will be there. Some attractive man or woman will be telling 12 you what was important about this case and what happened today 13 and what you ought to listen to and what was important and 14 that sort of thing. All right. And so I just don't have any 15 alternates now. You know what I mean? I'm down to 12. So 16 button up your rain coat, take care of yourself or whatever 17 that song says. And you can drop out of this by being sick 18 and we would wait for you or you could have something happen, 19 Uncle George comes over and tells you his life story, and so I 20 just cannot emphasize wrongly enough for the system, for the 21 litigants, for the lawyers, for yourselves, be sure and don't 22 let anybody communicate with you on any topic connected with 23 this trial either by newspaper, radio, conversation, whatever. 24 All right. Obviously do not discuss it among yourselves and 25 do not form additional opinions about it. Would 8:30 cause 161 1 anybody any problems? Because that way you can take longer 2 things. 8:30 cause anybody any problem on Monday? Okay. 3 We'll stand in recess till 8:30 Monday morning. 4 (PROCEEDINGS TERMINATED THIS DATE AT 5:35 P.M.) 5 * * * 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 162 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 163 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