0001
 1      IN THE UNITED STATES DISTRICT COURT
 2          FOR THE DISTRICT OF WYOMING
 3   
 4   CASE NUMBER: 00-CV-025D
 5   
 6   THE ESTATES OF DEBORAH MARIE TOBIN, and
 7   ALYSSA ANN TOBIN, Deceased by Timothy John
 8   Tobin, et cet.,
 9            Plaintiffs,
10   vs.
11   SMITHKLINE BEECHAM PHARMACEUTICALS,
12            Defendant.
13   DEPOSITION OF DR. LEIGH HEMPHILL
14            In accordance with Rule 5(d) of
15   The Federal Rules of Civil Procedure, as
16   Amended, effective May 15, 1988, I, Lisa
17   Roussell, am hereby delivering to MISHA
18   WESTBY, the original transcript of the oral
19   testimony taken on the 22nd day of February
20   2001, along with exhibits.
21            Please be advised that this is the
22   same and not retained by the Court
23   Reporter, nor filed with the Court.
0002
 1       IN THE UNITED STATES DISTRICT COURT,
 2          FOR THE DISTRICT OF WYOMING
 3   
 4   
 5   CIVIL ACTION NO. 00-CV-025D
 6   
 7   THE ESTATES OF DEBORAH MARIE TOBIN, and
 8   ALYSSA ANN TOBIN, Deceased by TIMOTHY
 9   JOHN TOBIN, et cet.,
10            Plaintiffs,
11   vs.
12   SMITHKLINE BEECHAM PHARMACEUTICALS,
13            Defendant.
14   
15   
16                 DEPOSITION
17                     of
18              DR. LEIGH HEMPHILL
19              February 22, 2001
20   
21   TAKEN BEFORE:  Lisa C. Roussell

22                  Certified Professional
23                  Reporter and Notary Public
0003
 1           S T I P U L A T I O N
 2            IT IS STIPULATED AND AGREED, by
 3   and between the parties, through their
 4   respective counsel, that the deposition of
 5   DR. LEIGH HEMPHILL may be taken before Lisa
 6   C. Roussell, Commissioner, Certified
 7   Professional Reporter and Notary Public,
 8   State at Large.
 9            That it shall not be necessary for
10   any objections to be made by counsel to any
11   questions, except as to form or leading
12   questions, and that counsel for the parties
13   may make objections and assign grounds at
14   the time of trial, or at the time said
15   deposition is offered in evidence, or prior
16   thereto.
17   
18   
19   
20   
21   
22   
23   
0004
 1             A P P E A R A N C E S
 2   
 3   FOR THE PLAINTIFF:  (Via telephone)
 4       Mr. Richard W. Ewing
 5       Attorney at Law
 6       2929 Allen Parkway
 7       Suite 2410
 8       Houston, Texas 77019
 9   
10   FOR THE DEFENDANT:  (Via telephone)
11       Ms. Misha Westby
12       Attorney at Law
13       1720 Carey Avenue
14       Cheyenne, Wyoming 82001
15   
16              I N D E X
17   EXAMINATION BY:              PAGE NO.:
18   Ms. Westby                   6
19   

20   
21   
22   
23   
0005
 1            I, Lisa C. Roussell, a Certified
 2   Professional Reporter of Birmingham,
 3   Alabama, and a Notary Public for the State
 4   of Alabama at Large, acting as
 5   Commissioner, certify that on this date, as
 6   provided by the Federal Rules of Civil
 7   Procedure of the United States District
 8   Court, and the foregoing stipulation of
 9   counsel, there came before me at 409 East
10   Tenth Street, Anniston Alabama, on the 22nd
11   day of February, 2001, commencing at 1:05
12   p.m., DR. LEIGH HEMPHILL, witness in the
13   above cause, for oral examination,
14   whereupon the following proceedings were
15   had:
16   
17            DR. LEIGH HEMPHILL,
18   being first duly sworn, was examined and
19   testified as follows:
20   
21            MR. EWING:  I'm Richard Ewing,
22   Richard W. Ewing, one of the attorneys
23   representing the plaintiff.  I'm at 2929
0006
 1   Allen Parkway, A-l-l-e-n, Suite 2410,
 2   Houston, Texas 77019.
 3            MS. WESTBY:  And my name is Misha
 4   Westby, and I represent the defendant, and
 5   my address is 1720 Carey Avenue, Suite 21,
 6   Cheyenne, Wyoming 82001.
 7            COURT REPORTER:  Do you have the
 8   usual stipulations?
 9            MR. EWING:  This is pursuant to
10   the Federal Rules.
11   
12   EXAMINATION BY MS. WEST:
13       Q.   State your name and address and
14   phone number for the record.
15       A.   Frederick Leigh Hemphill, xxxxxxxxx
16   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
17   xxxxxxxxxxxx.

18       Q.   Is this the best address and phone
19   number to reach you?
20       A.   Yes, it is.
21       Q.   Let's start with a synopsis of
22   your educational background, if you will,
23   Doctor.
0007
 1       A.   Graduated from high school in
 2   1968.  Attended Spring Hill College from
 3   1968 to 1971, graduated magna cum laude
 4   biology.  Taught school at Mobile County
 5   Training School 1971 or late '71 to end of
 6   the spring semester in '72.  Entered
 7   medical school University of Alabama July
 8   of 1972.  Graduated May of '75 internship
 9   and residency at the Pensacola Educational
10   Program Hospitals.  Entered practice in
11   Pensacola 1978 to '79.  Relocated internal
12   medicine practice to Gillette, Wyoming in
13   1979.  Practiced there until July of 1990.
14            Was board certified American Board
15   of Internal Medicine in 1978.  Member of
16   the American College of Physicians.  A past
17   member of the American College of Critical
18   Care Physicians.  State and county medical
19   societies here in Alabama.  And I've been
20   on active staff at two hospitals here;
21   Stringfellow Memorial Hospital in Anniston,
22   and Northeast Alabama Regional Medical
23   Center in Anniston.  On active internal
0008
 1   medicine staff since 1990 to present.
 2            I think that's about all I can
 3   include unless you have something else you
 4   wish to ask.
 5       Q.   Doctor, do you have a specific
 6   area of specialty or an area that you
 7   concentrate on in your practice?
 8       A.   I practice general internal
 9   medicine that is taking care of adult
10   illnesses spanning everything from
11   cardiology, dermatology, arthritis care,
12   diabetes, and through psychiatric primary
13   care.
14       Q.   In the scope of your practice do
15   you see and treat mental illness or

16   psychological problems?
17       A.   Yes.  Psychological problems are a
18   major part of dealing with patients with
19   chronic diseases.
20       Q.   Are you qualified to treat those
21   kind of problems generally?
22       A.   I'm qualified as is our family
23   practitioners and internists, and anyone
0009
 1   else who has had the requirements of the
 2   American Board of Internal Medicine or
 3   family practice for basis in psychiatric
 4   care and mental illness.
 5       Q.   Do you in the scope and course of
 6   your treatment of these kind of illnesses
 7   sometimes prescribe medications?
 8       A.   Quite frequently we will prescribe
 9   medications after first ascertaining
10   whether the person has a true need for
11   them.
12       Q.   Have you prescribed Paxil or other
13   SSRI's in your treatment of psychological
14   problems?
15       A.   Yes.
16       Q.   And what is your experience in
17   treating patients with Paxil?
18       A.   It's been very good, particularly
19   in psychotrophic disorder, panic disorder,
20   as well as severe depression.
21       Q.   Okay.  Have you seen any serious
22   side effects as a result of prescribing
23   Paxil to your patients?
0010
 1       A.   I've had patients stop Paxil
 2   because they felt some of the side effects
 3   that are listed in the list of side effects
 4   such as jitterness the serotonergic
 5   symptoms, for instance, and some people who
 6   have taken it for a while and felt that
 7   they were not as functional sexually as
 8   they would like to be and for those reasons
 9   another drug was chosen.
10       Q.   How about any kind of extreme
11   reaction, anything like that?
12       A.   No, I have not.
13       Q.   As an aside before I forget to ask

14   you this, are you familiar with a Dr. Boyd
15   Resnahand when you were in Gillette?
16       A.   I don't believe that I was.  I do
17   not recall him.
18       Q.   Okay.  Now let me see if I took
19   this down right.  I have that you started
20   practicing in Gillette in '79 and left in
21   '90; is that correct?
22       A.   Yes.
23       Q.   And what was the reason that you
0011
 1   left Gillette in 1990?
 2       A.   I relocated to Anniston, Alabama.
 3   I was offered a position with Stringfellow
 4   Hospital here.
 5       Q.   Okay.  Do you recall the date, and
 6   I realize that -- well, let me ask you
 7   about your medical records.  Do you have
 8   medical records for Don Schell?
 9       A.   No, I do not.  Those were turned
10   over to Campbell County Hospital who
11   assumed custody of my records in
12   anticipation of hiring additional
13   internists to fill the void that I left.
14       Q.   Okay.  And since we have been
15   unable to obtain those records, you haven't
16   been provided a copy of those records; is
17   that correct?
18       A.   No, I have not.  That is correct.
19       Q.   So I realize that you're going to
20   be going strictly from your memory and not
21   from medical records, but do you have a
22   date, an approximate date of when you would
23   have first seen Don Schell?
0012
 1       A.   I would approximate it between
 2   1984 and '87 at best.  Do you have any
 3   indication otherwise?
 4       Q.   No, we sure don't.  The only notes
 5   that we have that refer to your treatment
 6   is in Dr. Suhaney's records, just that you
 7   referred Don Schell to him in 1989.  So
 8   that's the first note or that's the first
 9   indication that we have of your treatment.
10       A.   Okay.
11       Q.   Sometime between '84 and '87 you

12   saw Don Schell, and do you recall what that
13   would have been for?
14       A.   That would be in the scope of
15   general medical care.  And the only thing
16   that I recall pertaining to what you're
17   asking for was being asked to discuss with
18   him being stressed, feeling depressed or
19   angry during that time.  I don't know what
20   business Don was in, but the economics of
21   the oil field business were terrible, '85,
22   '86, '87.  As far as treating Don Schell
23   for other than adult situational
0013
 1   depression, I have very little recall on
 2   that.
 3       Q.   Okay.  Did you treat anyone else
 4   in Don's family, either his wife, Rita
 5   Schell or his son or daughter, Deobrah
 6   Tobin, or Michael Schell?
 7       A.   I do remember treating Rita Schell
 8   again for general problems, sore throat,
 9   flu, et cetera, but not for any psychiatric
10   disorder or anything else specific, nor do
11   I remember treating his daughter or
12   granddaughter.
13       Q.   Okay.  Now is it your impression
14   that during this time frame that you were
15   the general physician or the physician that
16   they were treating with generally, Don and
17   Rita Schell during this time?
18       A.   I believe that would be correct.
19       Q.   Okay.  Do you have a specific
20   recollection of when Don Schell came to you
21   with concerns about feeling stressed,
22   angry, or depressed?
23       A.   The only thing that jogs my memory
0014
 1   at this point would be, you know, sometime
 2   in 1984 because I was in a temporary office
 3   building, and at that time I vaguely
 4   remember him being stressed out, being
 5   angry, things weren't going well, and I
 6   don't recall anything more specific than
 7   that.  I certainly don't recall there being
 8   any suicidal tendencies.  If I put him on
 9   any medications at that time it would not

10   have been the SSRI's because those didn't
11   come out until in the late '80's.  I
12   believe '88 was when Prozac came out.
13       Q.   Okay.  So then what you meant is
14   you would have been in your temporary
15   office building at the time when Don Schell
16   came to see you about these concerns; is
17   that correct?
18       A.   And that would have put the time
19   around 1984 because I moved into another
20   office building in '85.  Subsequently moved
21   again in either '87 or '88.
22       Q.   Okay.  Do you recall how many
23   times you saw Don Schell for psychological
0015
 1   concern?
 2       A.   Would see him the initial time and
 3   then a brief follow-up anywhere from two to
 4   four weeks later.
 5       Q.   And do you remember if you treated
 6   Don Schell at that time with any kind of
 7   antidepressant that would have been on the
 8   market at that time?
 9       A.   At that time if I had treated him
10   it would have been with one of the older
11   tricyclic antidepressants.  It would have
12   been Sinequan.  Yeah.  Sinequan was out at
13   that time.  I don't recall anything about
14   panic disorder, so I probably would not put
15   him on Trofranil, but it would not have
16   been the SSRI at that time obviously, and I
17   don't recall any time after that that I
18   would have treated him.
19       Q.   Focusing on the 1984 time that
20   we're discussing, do you recall if he
21   experienced, and I am assuming that the
22   answer to this is going to be no because
23   you don't have specific recollection about
0016
 1   medications, but do you have any
 2   recollection at all about any side effects
 3   that may have been suffered as a result of
 4   medications?
 5       A.   I don't recall him mentioning any.
 6       Q.   Okay.  Do you recall if he told
 7   you or if you were aware of any previous

 8   episodes of depression prior to this 1984
 9   incident when he came to see you?
10       A.   No, I wasn't.
11       Q.   Okay.  The notes that we have from
12   Dr. Suhaney indicate that Don Schell had
13   been treated probably by you because
14   there's several references to Dr. H, and
15   Dr. Suhaney said that during his deposition
16   that he assumed that was you since you were
17   the only Dr. H he knew in Gillette.  But
18   there's some reference to you treating Don
19   Schell in approximately 1989 with --
20   sometime in 1989 with Prozac and then
21   switching him to Desyrel.  Do you have any
22   recollection of that?
23       A.   I recall at that time that one of
0017
 1   my colleagues whose wife was a friend of
 2   Rita's mentioned that Don was having
 3   problems with irritability and would I
 4   please see him.  And I agreed to do that,
 5   and at that time most probably would have
 6   put him on Prozac because the results were
 7   good in coming out, and I would not have
 8   felt that he would be at a suicidal risk in
 9   going on that drug.  I recall later
10   speaking with him briefly at a party get
11   together and asking him how he was doing.
12            He said well, Doc, I didn't really
13   like that drug.  It just didn't seem to
14   agree with me and I think he was alluding
15   to sexual dysfunction with the drug or it
16   made him tired.  And he said he quit it and
17   he was feeling fine.  That seems to come to
18   mind at or about that time I was at a
19   gathering at, I believe, Dr. Stifel's house
20   at that time.  Anyway, we're way back.
21       Q.   Okay.  Do you know, did Dr. Stifel
22   ever treat Don Schell?
23       A.   Dr. Stifel was a radiologist, so
0018
 1   he would not have engaged in any treatment
 2   other than reading of x-ray films if those
 3   would have been ordered.
 4       Q.   Oh, okay.  You mentioned that the
 5   friend of Rita's told you about a problem

 6   with the irritability.  Did you -- what
 7   kind of outward signs or what kind of
 8   description of symptoms do you recall that
 9   Don may have given you other than your
10   irritability about his depression?
11       A.   He seemed rather -- well, like I
12   say, he seemed rather depressed, his affect
13   was fairly flat.  I don't recall him
14   showing much in the way of emotion.
15   Certainly didn't express anger or hostility
16   towards me, but no references were made to
17   any violent tendencies that I recall.
18       Q.   Did you notice any anxiety or
19   signs of nervousness or jumpiness?
20       A.   I felt that he was anxious.
21       Q.   Now would this have been before or
22   after you started treating him with some
23   kind of medication?
0019
 1       A.   You've made mention that he was or
 2   that this would be back reference from Dr.
 3   Suhaney, that he was treated at one time
 4   with Prozac and then was changed to Desyrel
 5   Trazodone which would have more of a
 6   sedating effect.  So I can presume from
 7   that that I would have changed him because
 8   of some anxiety.
 9       Q.   Do you recall if you noted anxiety
10   in the initial visits when he came to see
11   you before you put him on medication?  Do
12   you recall that?
13       A.   Everybody who comes to me and is
14   willing to even speak about depression or
15   mental illness, particularly if they're
16   male, is going to be anxious, so that
17   wouldn't be anything unusual.
18       Q.   Do you recall or have any idea of
19   how long you would have treated him with
20   Prozac later on and some other kind of
21   antidepressants -- that's going to be
22   compound.
23            Do you recall how long you would
0020
 1   have treated him on Prozac between the time
 2   you prescribed it and the time he told you
 3   at the party that he had discontinued that?

 4       A.   I try to get anyone that I start
 5   it on, any type of psychotropic medication
 6   into a psychiatrist as soon as I could
 7   because my practice at that time was
 8   primarily critical care medicine hospital
 9   based, and I was not in the psychiatry
10   business even though before we had
11   psychiatric capability there at Campbell
12   County, I did have to by default take care
13   of many psychological emergencies and was a
14   part in getting the certificate and me
15   through the Campbell County to get a
16   psychiatric unit.
17       Q.   Do you recall that -- I'm trying
18   to get a feel for how the medications
19   switched before you sent him to Dr.
20   Suhaney.  Would that have been -- you
21   started him on Prozac, then you saw him at
22   the party and he said that it didn't agree
23   with him.  Would it have been after that
0021
 1   time that you then switched him to Desyrel;
 2   do you recall?
 3       A.   I believe it would have been since
 4   he said he wasn't taking whatever drug I
 5   chose first.
 6       Q.   Okay.  As far as you can remember
 7   the side effects that he was complaining
 8   about or the reason that it didn't agree
 9   with him was that he felt tired and that it
10   could have been related to some kind of
11   sexual dysfunction?
12       A.   Yes.  That's correct.
13       Q.   Okay.  And it would not have been
14   anything that you would have described as
15   akinesia?
16       A.   No.  Nor tardive dyskinesia nor
17   suicidal ideations or violent acting out.
18       Q.   Very good.
19            MR. EWING:  I object.
20   Nonresponsiveness.
21       Q.   Do you recall if at any point in
22   your discussions with Don Schell he
23   mentioned missing work or being out of work
0022
 1   due to his illness?  I should be more

 2   specific.  Due to his psychological
 3   problems, concerns, depression?
 4       A.   I do not.
 5       Q.   Okay.  Do you recall if his wife
 6   ever attended any of the visits with him
 7   where he discussed his depression?
 8       A.   No, I don't.
 9       Q.   And do you recall any time when
10   his wife may have made an appointment for
11   him regarding depression or psychological
12   issues?
13       A.   No, I don't.
14            (Off-the-record discussion.)
15       Q.   Is there anything about Don Schell
16   about his treatment with you, anything that
17   may be helpful to us in this case that we
18   have not gone over in the deposition so
19   far?
20       A.   No, I do not recall anything, and
21   I appreciate the memory jogs that have been
22   given, otherwise I don't think I could have
23   been much help at all.
0023
 1            MS. WESTBY:  Okay.  Well, I sure
 2   appreciate your time, Doctor, and I think
 3   that that is all I have.  You have the
 4   option of reading and signing your
 5   deposition basically just gives you a
 6   chance to look over spellings and those
 7   kind of things and the court reporter can
 8   send it directly to you with instructions
 9   and then you send it back to her and she
10   sends it to us.
11            Is that something you would like
12   to do?
13       A.   That would be quite satisfactory.
14   
15            FURTHER DEPONENT SAITH NOT
16   
17   
18   
19   
20   
21   
22   
23   

0024
 1            C E R T I F I C A T E
 2   
 3   
 4   STATE OF ALABAMA
 5   JEFFERSON COUNTY
 6   
 7            I hereby certify that the above
 8   and foregoing deposition was taken down by
 9   me in stenotypy, and the questions and
10   answers thereto were reduced to typewriting
11   under my supervision, and that the
12   foregoing represents a true and correct
13   transcript of the deposition given by said
14   witness upon said hearing.
15            I further certify that I am
16   neither of counsel nor of kin to the
17   parties to the action, nor am I in anywise
18   interested in the result of said cause.
19   
20   
21   
22            COMMISSIONER-NOTARY PUBLIC
23