1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF WYOMING 3 ------------------------------------------------------- 4 THE ESTATES OF DEBORAH MARIE TOBIN 5 and ALYSSA ANN TOBIN, Deceased, by TIMOTHY JOHN TOBIN, Personal 6 Representative; and THE ESTATES OF DONALD JACK SCHELL and RITA CHARLOTTE 7 SCHELL, Deceased, by NEVA KAY HARDY, Personal Representative, 8 Plaintiffs, 9 vs. Civil No. 00-CV-025D 10 SMITHKLINE BEECHAM PHARMACEUTICALS, 11 Defendant. 12 ------------------------------------------------------- 13 DEPOSITION OF RONALD D. WAGNER 14 Taken in behalf of Defendant 11:10 a.m., Tuesday 15 February 13, 2001 16 17 PURSUANT TO NOTICE, the deposition of RONALD 18 D. WAGNER was taken in accordance with the applicable 19 Federal Rules of Civil Procedure at 500 S. Gillette 20 Avenue, Gillette, Wyoming, before Vonni R. Bray, 21 Registered Professional Reporter and Notary Public of 22 the State of Wyoming. 23 24 25 2 1 A P P E A R A N C E S 2 For the Plaintiffs: MR. JAMES E. FITZGERALD (By telephone) 3 Attorney at Law FITZGERALD LAW FIRM 4 2108 Warren Avenue Cheyenne, WY 82001 5 (307) 634-4000 6 For the Defendant: MS. MISHA E. WESTBY Attorney at Law 7 HIRST & APPLEGATE 1720 Carey Avenue, Ste. 200 8 P.O. Box 1083 Cheyenne, WY 82003-1083 9 (307) 632-0541 10 11 I N D E X 12 DEPOSITION OF RONALD D. WAGNER: Page 13 Direct Examination By Ms. Westby 3 14 Cross-Examination By Mr. Fitzgerald 42 15 Redirect Examination By Ms. Westby 43 16 17 18 19 20 21 22 23 24 25 3 1 P R O C E E D I N G S 2 (Deposition proceedings commenced 3 at 11:10 a.m., February 13, 2001.) 4 (Witness sworn.) 5 RONALD D. WAGNER, 6 called for examination by the Defendant, being first 7 duly sworn, on his oath testified as follows: 8 DIRECT EXAMINATION 9 Q. (BY MS. WESTBY) Let's start with some 10 introductory kinds of things. Please state your name 11 and address for the record. 12 A. My name is Ronald Wagner, and my address is 13 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 14 Q. Is that your home address? 15 A. Yes. 16 Q. And what is your business address? 17 A. 500 Industrial Park Drive. 18 Q. And what's your telephone number? 19 A. xxxxxxxxx. 20 Q. Have you ever had your deposition taken 21 before? 22 A. No. 23 Q. Let's just talk a couple minutes about 24 depositions. Basically, the court reporter is going to 25 take down every word you say. So it's important for you 4 1 to let me finish my questions before you give your 2 answer, and I'll do the same for you. The other thing 3 to remember is that she can't take down nods of the head 4 and gestures. So you need to make sure that you say yes 5 or no instead of nodding your head. 6 Do you have -- and I had asked you this before 7 the deposition started. But for the record, do you have 8 any documents pertaining to Donald or Rita Schell? 9 A. No. 10 Q. Are you married, Mr. Wagner? 11 A. Yes. 12 Q. And what is your wife's name? 13 A. Vicki. 14 Q. And how long have you been married? 15 A. 20 years. 16 Q. Tell me a little bit about your work history. 17 Say in the last about 20 years, where have you worked? 18 A. I left the University of Wyoming and went to 19 work for company called Cities Service, and they are now 20 owned by Occidental Petroleum. I worked there until 21 August of '91, I guess it was. And I left there and 22 went to work for Amerada Hess in North Dakota and worked 23 there about a year and a half. And I went to work for 24 Pathfinder Energy, where I'm employed now. 25 MR. FITZGERALD: Excuse me. Mr. Wagner 5 1 is cutting out. Is the telephone on the table? 2 MS. WESTBY: It is, Jim. 3 MR. FITZGERALD: Can you move it a 4 little closer to him? 5 Q. (BY MS. WESTBY) And, Mr. Wagner, if you could 6 speak up just a bit so we can hear you better. 7 So you're currently employed by Pathfinder 8 Energy; is that correct? 9 A. Yes. 10 Q. And how long have you worked for Pathfinder? 11 A. About seven years. I guess eight years. 12 Q. Time flies. What did you study at the 13 University of Wyoming? 14 A. Petroleum engineering. 15 Q. And do you have your degree? 16 A. Yes. 17 Q. What was your position with Cities Service? 18 A. I was an engineer. 19 Q. And what were your responsibilities? 20 A. Monitoring field performance, coming up with 21 projects to enhance field performance in wells. A 22 little bit of everything. 23 Q. And when Cities Service became Occidental, did 24 your position change, or did it stay the same? 25 A. Stayed the same. 6 1 Q. What's your current job requirements or job 2 duties with Pathfinder? 3 A. Pretty much the same thing, other than I have 4 a little more supervisory capacities, in that I 5 supervise contract people that currently work for us. 6 Q. Okay. Tell me when you first met Don Schell. 7 I'm assuming that you met Don Schell before you met Rita 8 Schell; is that correct? 9 A. Correct. 10 Q. Tell me when you first met Don Schell. 11 A. That would have been shortly after I went to 12 work for Cities Service in Gillette. He was a field 13 foreman in the field we operated. 14 Q. And what year would that have been? 15 A. '81. 16 Q. And what did you say his position was? 17 A. I believe he was an assistant foreman at the 18 time. 19 Q. How well did you know him in 1981? Did you 20 spend a lot of time with him? Were you in the same 21 area? 22 A. Well, he -- his field office was south of 23 Gillette. Our office was here in town. So not very 24 well, other than just maybe talking to him over the 25 phone. I believe I don't -- I don't believe I took care 7 1 of some of the wells in his area. I was in a different 2 part of the field but knew of him because he was working 3 in the field. 4 Q. How often would you say that you talked to him 5 either on the phone or in person? 6 A. Maybe once a month. 7 Q. What was your impression of him when you first 8 met him or first started talking to him in 1981? 9 MR. FITZGERALD: I object on the grounds 10 it's irrelevant. 11 Q. (BY MS. WESTBY) And you can answer. 12 A. He came across to me as a very depressed 13 person. 14 Q. Did you view him as being friendly and easy to 15 talk to or maybe professional in the way that he was all 16 work and no play? 17 MR. FITZGERALD: Leading. 18 Q. (BY MS. WESTBY) Go ahead and answer. 19 A. I felt he was professional. I think -- he 20 wasn't all work. But he also, you know, you can carry 21 on a conversation about activities other than work, 22 sports. 23 Q. Did that type of relationship, then, where you 24 just talked to him maybe once a month continue for a 25 certain amount of time during the time that you both 8 1 worked for Cities Service and then Occidental? Or was 2 there a time whenever you spent more time with him 3 during that period? 4 MR. FITZGERALD: Leading and compound. 5 MS. WESTBY: And it also wasn't a very 6 good question. 7 Q. (BY MS. WESTBY) But if you understood, go 8 ahead and answer. 9 A. It was about the same. I think the time we 10 spent together working up here in Gillette for Cities or 11 Occi, maybe it was a monthly deal sometimes. Maybe not 12 quite as often depending on what part of the field I 13 worked and he worked in. 14 Q. Would that have been true, then, all the way 15 up until 1991 when you left Occidental? 16 A. Yes. 17 Q. Did you know him on a social basis outside of 18 work? 19 A. No, not really. Not during that period maybe 20 other than activity or office functions. 21 Q. What kind of office functions did you attend 22 at Cities Service, slash, Occidental? 23 A. Just like Christmas parties, awards banquets, 24 things of that sort. 25 Q. How many office functions were there a year 9 1 about? 2 A. Two or three maybe. 3 Q. Did you always see Don Schell at those 4 functions? 5 A. Not always. 6 Q. Did you ever see Don and Rita Schell together 7 at those functions during that time period? 8 A. If he was there, she was usually there. 9 Q. What was their relationship like as you 10 observed it? 11 A. During that time, you know, I didn't know them 12 personally outside the office that well. So they seemed 13 to get along together whenever I saw them. 14 Q. Okay, let's talk about the time period after 15 '91 when you left Occidental. When did -- did you have 16 any contact with Don or Rita Schell from the time that 17 you left Occidental until the time that Don came to work 18 for you or for the company you were working for? 19 A. Just maybe in the month or two prior to when 20 that all transposed. 21 Q. And when would that have been? When did he 22 come to work for Pathfinder? 23 A. I was working for a company at the time, kind 24 of a joint -- Pathfinder and company called Wellstar 25 Corporation went together and bought a group of these 10 1 properties. And they were properties that Don had taken 2 care of as a foreman for Occidental. And Wellstar was 3 already a bonded corporation in the state of Wyoming as 4 an oil and gas operator. 5 So they became the operator of these wells. 6 And I was basically the engineer. I was working for 7 Pathfinder, but I also did some work for Wellstar. So 8 it was Wellstar, he came to work for Wellstar at the 9 time. And we have since split up and done some things 10 differently. But I was working for Wellstar as well. 11 Not really as a direct employee of them, but -- I don't 12 want to say consultant, but kind of. But anyway, that 13 was in March of '93 is when I believe he went to work 14 for us. And so the month prior to that or six weeks 15 prior to that is when we visited with him on getting the 16 transition and whatnot done. 17 Q. Okay. Let me back up a little bit. Did you 18 have -- were there any problems for you, for your 19 position when Cities Service became Occidental? Did you 20 leave the company when it became Occidental, or did you 21 have any problems during that transition? 22 A. No. Basically they changed the name on the 23 door. That was about it. Everybody else pretty well 24 stayed the same. 25 Q. Do you know about Don Schell's position with 11 1 Occidental? Do you know if there was any positive or 2 negative ramifications to him because of the 3 changeover? 4 A. I don't, because that was -- we were all on 5 the same little company up here. It was two different 6 entities. He was in the field, and we were in the 7 office. And a lot of times we didn't know a lot of 8 things other than just the business stuff and whatnot 9 that went on in the fields. 10 Q. Okay. Tell me how you came to -- was it you 11 that contacted Don about working for Wellstar? 12 A. Yes. 13 Q. And tell me how that came about. 14 A. Well, we took over the wells. They had some 15 people, personnel working for them that field people, 16 plumbers, lease-type operators, people that were not 17 going to stay, and wanted to get into a different line 18 of work. And Don didn't really want to leave Gillette. 19 And I know he'd been offered a position elsewhere within 20 Occi, I believe. 21 And so we had some openings for some contract 22 people in the field. So it worked out that he wanted to 23 stay here and didn't really want to leave Gillette. And 24 we needed some people. So it worked out pretty good. 25 And being he had been taking care of the wells for the 12 1 couple of years or whatever for Occidental, it was a 2 perfect fit for both of us. 3 Q. How did you find out that Occidental had 4 offered him a job in a different location and that this 5 would be something that he would possibly be willing to 6 do? 7 A. He and I talked about it, you know, during the 8 transition period. 9 Q. And when you say transition period, do you 10 mean from the time he worked for Occidental to -- 11 A. Well, kind of the six weeks or so prior to us 12 taking over operations. 13 Q. Okay. Did you contact him, or did he contact 14 you originally? 15 MR. FITZGERALD: Asked and answered. 16 Q. (BY MS. WESTBY) Go ahead. 17 A. I believe I contacted him. 18 Q. Did you contact him at home? Was he 19 already -- had he already left his job with Occidental 20 at that point, or was he still employed by them? 21 A. He was still employed by them. 22 Q. Did you contact him at home or work? 23 A. At work. 24 Q. And I guess what I'm trying to figure out is 25 how you became aware that he was looking at a transfer 13 1 within Occidental that he didn't really want to do that 2 and that this might be an option. 3 A. I think just visiting with him and knowing him 4 the prior time that I've worked for Occidental that we 5 talked about that. And he knew some of his people were 6 leaving and weren't going to stay on doing the same job 7 they were doing or pumping -- or contract operating 8 jobs. So something I think, you know, he kind of 9 expressed to us that he might want to do. He said he'd 10 like to go someplace else. 11 Q. Okay. How many times during this transition 12 period, you know, couple of months did you talk to Don? 13 A. Probably once every couple weeks maybe. 14 Q. Okay. And then you said that he started 15 working for Wellstar in about March of '93; is that 16 correct? 17 A. Correct. 18 Q. After he began working at Wellstar -- no, let 19 me ask you another question. 20 From 1993 until the time of his death, did his 21 position stay the same? Did his job duties and all of 22 those things stay the same? 23 A. Yes. 24 Q. Were you in a supervisory capacity over him? 25 A. Yes. 14 1 Q. Were you his direct supervisor? 2 A. He is a contract employee. And my job was to 3 take care of -- oversee what the contract employees do. 4 He was not the only one that we had working for us at 5 the time in that position. We have numerous different 6 fields that we take care of. 7 Q. Okay. And during that time, from 1993 until 8 the time of his death, how much contact did you have 9 with him in the work capacity? 10 A. We probably visited -- if everything was going 11 fine, I probably wouldn't talk to him but once every 12 couple weeks. And if we had problems in the field, it 13 might be daily for a short period of time. 14 Q. Can you describe for me what his job duties 15 were? 16 A. He basically would go out and gauge the oil 17 tanks and make sure all the equipment is running. Make 18 sure the oil got sold. We had minor things that -- 19 workovers, rig running or roustabout crew working that 20 he might oversee, see what they were doing, making sure 21 they were doing their little job right. His background 22 would kind of give him a little more flexibility than 23 some of the others. 24 Q. What was his compensation package? How was he 25 compensated? 15 1 A. He was paid on a per-well basis, per-well 2 per-month basis. 3 Q. Do you know what that was? 4 A. 300 a well per month. 5 Q. And did that remain the same from '93 until 6 his death? 7 A. Yes. 8 Q. And how many wells did he -- was he in charge 9 of? 10 A. I believe it was around 15. We don't have 11 that field anymore, so I don't remember. 12 Q. Do you know generally what his work hours 13 would have been? 14 A. I believe he usually left fairly early in the 15 morning. 6:00ish or 6:30. As long as everything was 16 running fine, we didn't really tell them what time they 17 have to be there. Just every day. 18 Q. Do you mean every day during the week or 19 during the weekends, too? 20 A. 365 days a year we have to have someone 21 there. 22 Q. That doesn't give you a lot of breaks. So I'm 23 assuming if that's 365 days a year, that maybe on some 24 type of regular basis, did he have somebody that covered 25 those wells for him? 16 1 A. Yeah, I believe he had someone else here in 2 town that would -- they called relief for him, you know, 3 if he wanted to take a week off or a weekend off or 4 whatever. 5 Q. Do you know who that was? 6 A. I believe it was someone with Jordan 7 Production Service. And I don't know who in there, if 8 they rotated or whatever, rotated people in there or 9 not. 10 Q. Do you know Kevin Nelson? 11 A. I know of him. 12 Q. Was he -- 13 A. He was one of them I believe that was relief 14 from time to time for Don. If he was in the area 15 pumping some other wells for other companies. 16 Q. But it could have also been other people from 17 Jordan Production? 18 A. Yes. 19 Q. Can you give me an idea generally -- I know 20 there were some times when he was off work for a more 21 significant period of time. But do you know generally 22 how often he called in a relief person to handle his 23 wells for him? Was that regular? 24 A. No. No, not very regular at all. I imagine 25 in however many years it's been from the time he started 17 1 working for us, but it wasn't very often. He may take a 2 weekend here or two there, but it wasn't very often. I 3 know he worked quite a bit most of the time. 4 Q. Can you give me an idea, like, per month how 5 many days generally he would take or per year? 6 A. Maybe two weeks on a yearly basis. 7 Q. Generally, what kind of, I guess, contractor 8 was he? Was he reliable? All of those kinds of 9 things? 10 A. He was very reliable. He did his job and made 11 the wells when he was supposed to make them. And if 12 there was any problems, he was very good about reporting 13 any problems so we could take care of them. 14 Q. Do you recall any times during the years that 15 he was a contract employee when he was off for a 16 significant period of time? And by significant, I mean 17 more than a couple of days at a time? 18 A. There was a couple instances that he was off 19 probably more than that. 20 Q. And were you aware of the reason for those 21 more extended absences? 22 MR. FITZGERALD: Lack of foundation. 23 Q. (BY MS. WESTBY) And go ahead. 24 A. Probably not directly, other than a couple 25 times that did happen, I know he wasn't feeling very 18 1 well, so he asked for some extended time off. 2 Q. And when you say not directly, were you 3 getting -- where were you getting your information 4 from? 5 A. From him directly. 6 Q. What was his explanation -- 7 MR. FITZGERALD: Sorry, what was -- I 8 need the last -- the answer before this was muffled, the 9 answer before this question. Could the reporter read it 10 back for me, please? 11 (Record read.) 12 MR. FITZGERALD: Pursuant to the Rules 13 of Civil Procedure, I'm objecting only to form. 14 MS. WESTBY: Okay. 15 Q. (BY MS. WESTBY) Let's go to that last 16 question. What was his explanation to you why he needed 17 this leave or this time off? 18 A. He just wasn't feeling very well and wanted 19 some time off, not have to worry about his duties at 20 work. He felt that he could get himself feeling better 21 without having to worry about that at the time. 22 Q. Okay. Did he elaborate to you on what he 23 meant by not feeling well? 24 A. Not really, no. 25 Q. Did there come a time when you became aware of 19 1 the specifics of why he wasn't feeling well? 2 MR. FITZGERALD: Lack of foundation. 3 A. I think there was some time later on. I don't 4 know for sure the time frame on that. 5 Q. (BY MS. WESTBY) Okay. Were you aware that 6 Don Schell suffered from depression? 7 MR. FITZGERALD: Leading question. 8 Q. (BY MS. WESTBY) And go ahead. 9 A. Yes, I was. 10 Q. And how did you become aware of that? 11 MR. FITZGERALD: Lack of foundation. 12 A. Mainly just visiting with him I think. After 13 he became -- he started working for us, I think we -- 14 beings we worked together one on one a little more, we 15 became closer friends. I mean, we became friends as 16 well as -- I don't think I ever felt that he was always 17 working for me, supervisor or employee type of deal. We 18 became friends. 19 Q. (BY MS. WESTBY) And can you give me a time 20 frame of when that would have occurred that you became 21 closer, and he talked to you about some of his 22 problems? 23 A. Probably within the first year or so after he 24 started working for us. 25 Q. Okay. Do you remember when the first occasion 20 1 occurred that he asked for time off because he was not 2 feeling well? 3 A. Right after he started working for us. 4 Q. Can you give me, generally, like a month or a 5 season when that occurred? 6 A. It would have been -- we took over in March of 7 '93, and it would have been a week after we took over 8 that he asked for some time off. 9 Q. And how long was he off that time? 10 A. About a month. 11 Q. And after he was off for a month, right after 12 he started working for you, did he tell you the reason 13 that he was off for that long of a time? 14 A. Not right away. 15 Q. How long after that do you think it was when 16 he confided more in you? 17 A. Probably within a year. 18 Q. And tell me specifically what he told you. 19 MR. FITZGERALD: Lack of foundation. 20 A. I don't know if I can tell you specifically. 21 But he just.... 22 MR. FITZGERALD: Hello? 23 MS. WESTBY: He's thinking. 24 Q. (BY MS. WESTBY) And it has been a long time, 25 but just whatever you can remember. 21 1 A. See, I don't know if it was specifically. He 2 just felt that he wasn't feeling very well and that -- 3 and I think -- oh, it's been a long time. He just 4 wanted I think to get everything right within the 5 change, the changes that were coming on. Even though 6 they weren't big changes, I think it was a lot for him 7 to make it at that point. And he just wanted some time 8 to kind of gather everything in and make sure that 9 his -- he was doing the job the best of his ability, I 10 believe. 11 Q. Okay. And when you say changes, do you mean 12 in terms of employment changes? 13 A. I believe so, yeah. 14 Q. When was he off the next time after that first 15 time when he was off for that month? 16 A. Most of the other times it was vacations, or I 17 believe he had a -- I don't know if it was his brother 18 passed away or his father. Somebody up in North 19 Dakota. He went up for some of that. But that was the 20 most time. That was his time off were vacations or some 21 other family problems of that sort. The only other 22 time, it was about the last week or so before the 23 tragedy, so.... 24 Q. So we've got that the last week before he died 25 and the month right after he started working. Are you 22 1 aware of any other times during that five years or so 2 when he was off because he wasn't feeling well, 3 something that could have been related to the 4 depression? 5 A. No, not that I know of. 6 Q. How did you become -- you said that the way 7 that you became aware that when he said he wasn't 8 feeling well, he meant in terms of being depressed or 9 agitated or having anxiety, something like that. Tell 10 me about the conversation that you had or conversations 11 you had where he told you that that was the problem. 12 MR. FITZGERALD: Lacks foundation, 13 assumes facts not in evidence. 14 Q. (BY MS. WESTBY) Go ahead. 15 MR. FITZGERALD: It's overbroad, assumes 16 facts not testified to with this witness. 17 Mr. Wagner, you can answer these questions. 18 We have to make these objections because there's no 19 judge to rule on these today. And if the judge needs to 20 review these later, they can look and see what 21 objections were made. 22 A. Okay, I'm just trying to think here. I think 23 we just visited a little bit about when he came back. 24 And like I say, you know, we became closer. I think he 25 just wanted to reassure me that everything had been 23 1 taken care of and everything was going to be fine. When 2 he came back it was like nothing had ever changed. 3 Q. (BY MS. WESTBY) Did he ever mention the word 4 depression to you? 5 MR. FITZGERALD: Leading. 6 A. No. 7 Q. (BY MS. WESTBY) Did he mention, you know, 8 sadness, being upset emotionally, something like that? 9 MR. FITZGERALD: Leading. 10 A. No, I don't think so. 11 Q. (BY MS. WESTBY) Okay. How did you come to 12 believe, then, that it was related to depression? 13 MR. FITZGERALD: Lack of foundation. 14 A. Within that first month, the times we would 15 talk up until when he told me he was leaving, just in 16 his tone and I met with him a couple times prior to him 17 taking off. 18 Q. (BY MS. WESTBY) Okay. And can you be more 19 specific about his tone? When you say his tone, what do 20 you mean? 21 MR. FITZGERALD: Lack of foundation. 22 A. He just -- it didn't seem like the Don Schell 23 that I knew the previous 10 or 12 years or whatever it 24 was. 25 Q. (BY MS. WESTBY) And how was he different? 24 1 MR. FITZGERALD: Lack of foundation. 2 A. Prior to that he seemed to be easygoing and 3 enjoyed his job very well and did it well. The way his 4 tone and -- just the way he came across, he wasn't 5 feeling very well and didn't express that it was really 6 a physical problem. But at the time he really didn't go 7 into it. 8 Q. (BY MS. WESTBY) Okay. So if he was easygoing 9 and gave you that impression before this, what 10 impression did he give you during this time that made 11 you think that he was different than he had been 12 before? 13 MR. FITZGERALD: Lack of foundation. 14 A. In his demeanor and talking with him 15 personally. 16 Q. (BY MS. WESTBY) Right, but what was it about 17 his demeanor that seemed different? 18 MR. FITZGERALD: Lack of foundation. 19 A. I guess he just seemed like he had other 20 things on his mind and felt that, you know, he really 21 couldn't dedicate the time that, you know, as a 22 professional that he was to the job. 23 Q. (BY MS. WESTBY) Okay. Did he seem sad to 24 you? 25 MR. FITZGERALD: Lack of foundation. 25 1 A. Probably not as jovial as normal, as he was 2 normally. 3 Q. (BY MS. WESTBY) What about -- you said his 4 mind was on other things. Did he appear distracted? 5 MR. FITZGERALD: Leading, lack of 6 foundation. 7 Q. (BY MS. WESTBY) Is that a fair adjective to 8 describe him? 9 MR. FITZGERALD: Same. 10 A. Maybe a little bit. 11 Q. (BY MS. WESTBY) Okay. What about nervous or 12 anxious? 13 MR. FITZGERALD: Same objections. 14 A. He didn't seem either one of those. 15 Q. (BY MS. WESTBY) What about when you saw him 16 during that time frame, did he -- what was his -- was 17 his physical appearance any different than when you had 18 seen him before? 19 A. No, probably not. 20 Q. Did you ever notice any shaking? 21 A. No. 22 Q. What about looking more pale? 23 A. I don't believe so, no. 24 Q. Did his voice ever shake when you talked to 25 him? 26 1 A. No. 2 Q. When he talked to you, and I think the context 3 you said it in was reassuring you that he was going to 4 be able to do his job and that he was going to be okay. 5 Did -- was he comfortable talking to you about the 6 problems that he was experiencing? 7 A. Yeah, I think so. 8 Q. Okay. Then you said the next time he was off 9 work was the week before his death. Did you notice a 10 change in him prior to the time that he stopped 11 working? 12 MR. FITZGERALD: Vague. 13 A. Not up until he called me and told me he was 14 going to take some time off. 15 Q. (BY MS. WESTBY) How long before he called you 16 and said he was going to take some time off had you seen 17 him? 18 A. Maybe a month. As long as things were running 19 fine, we didn't talk very much. 20 Q. Okay. Do you remember specifically what he 21 told you when he called and said that he was going to 22 take some time off? 23 MR. FITZGERALD: Lack of foundation. 24 A. Again, he just said he wasn't feeling very 25 well, and he wanted to kind of stay at home and wanted 27 1 to know if he could have a few days off. 2 Q. (BY MS. WESTBY) And you've used the term not 3 feeling well several times. Are those the words that he 4 said to you? 5 A. Yes. 6 Q. And what was your understanding of what that 7 term meant -- 8 MR. FITZGERALD: Lack of foundation. 9 Q. (BY MS. WESTBY) -- from Don Schell? 10 A. From the second time, I guess I would have to 11 recollect it back to the first time. And I felt that he 12 wasn't feeling well and was having problems somewhere 13 personally. 14 Q. And what was your understanding of what those 15 problems were? 16 A. It was -- 17 MR. FITZGERALD: Lack of foundation. 18 Go ahead, Mr. Wagner. 19 A. Depression related, I think. 20 Q. (BY MS. WESTBY) Anything else? 21 MR. FITZGERALD: I didn't hear the 22 answer, I'm sorry. 23 MS. WESTBY: He said depression related. 24 MR. FITZGERALD: And then your question 25 was anything else? And I'll object to that on lack of 28 1 foundation. 2 Q. (BY MS. WESTBY) Okay. 3 A. No. 4 MS. WESTBY: And his answer to that was 5 no. 6 MR. FITZGERALD: I got that one, 7 thanks. 8 Q. (BY MS. WESTBY) During the time that he 9 worked at Wellstar, were you also spending time with him 10 socially? 11 A. Yes. 12 Q. And about how often did you spend time 13 together? 14 A. Three or four times a year maybe. 15 Q. And what would you do those times? 16 A. We had a Christmas party once a year, and 17 another get-together once a year for the people who 18 worked for us. 19 Q. Anything unrelated to work? 20 A. We became fairly good friends. And every once 21 in a while, I'd stop by their house and visit with them 22 in the summertimes. 23 Q. Did you live near the Schells? 24 A. Not near them. We lived in the same town. 25 Q. Okay. How often would you say you went to 29 1 their house? 2 A. Mainly was in the summertime. If the weather 3 was nice, he might be working in the yard, and we might 4 drop by and visit with him. 5 Q. What was your impression of Don and Rita's 6 relationship after 1993 when you were working with him 7 and spending time with him socially more? 8 A. Seemed to be no changes from what I knew 9 before. 10 Q. Which would have been? 11 And what was your impression before? 12 A. I think that he had -- I think they enjoyed 13 each other's company very well. 14 Q. Did Don ever -- when he was talking to you 15 about his problems and when he -- and not feeling well, 16 did he have an explanation for you about why he was 17 experiencing those problems? 18 MR. FITZGERALD: Lack of foundation. 19 A. No. 20 Q. (BY MS. WESTBY) Did he ever confide in you 21 any problems that he was having, other than not feeling 22 well? 23 A. No. 24 Q. Did he ever mention any marital problems? 25 A. No. 30 1 Q. What about problems with the rest of his 2 family? 3 A. No. 4 Q. Okay. What about any problems with work? Did 5 he ever mention any problems with work? Any concerns 6 about his job? 7 A. No. 8 Q. Okay. What kinds of things -- 9 MR. FITZGERALD: Was the answer to that 10 no? 11 MS. WESTBY: Yes. It was no. 12 MR. FITZGERALD: Thank you. 13 Q. (BY MS. WESTBY) What kinds of things would 14 you and he talk about when you were together, either 15 socially or just talking about unrelated things at 16 work? 17 A. Unrelated things? We maybe just talked about 18 the weather, depending what day it was. Sports season, 19 whatever was going on in that particular sports season. 20 Q. Okay. Did you ever witness or hear of Don 21 Schell getting angry or upset? 22 A. No. 23 MR. FITZGERALD: Lack of foundation and 24 vague. 25 A. No. 31 1 Q. (BY MS. WESTBY) What about any violence, did 2 you ever see or hear of him getting in a bar fight, any 3 other kind of violent behavior? 4 A. No. 5 Q. Was your wife friends with Rita? 6 A. Yes. 7 Q. Did she spend more time with Rita than you did 8 with Don, or did you only see each other as couples? 9 A. Mainly as couples. Maybe once in a while they 10 would have lunch together. But probably not any more 11 than Don and I would talk. 12 Q. Okay. Do you know if Rita ever mentioned any 13 concerns about Don to your wife? 14 A. I don't believe so, no. 15 Q. Did Rita ever mention any concerns about Don 16 to you? 17 A. No. 18 Q. Do you ever talk with Rita or Don about their 19 relationship or their family? 20 A. No. 21 Q. Okay. Can you give me a specific date when 22 Don called you the week before his death to tell you 23 that he was going to need some time off? 24 A. I believe it was a Tuesday, Monday night or 25 Tuesday I believe of that week. I don't know what 32 1 specific date that was. 2 Q. Did he tell you who was going to be taking 3 over the wells for him? 4 A. I believe he mentioned that Kevin was going to 5 be taking care of his stuff while he was off. 6 Q. Did he tell you how long he was going to take 7 off? 8 A. No. 9 Q. How was his tone when he talked to you this 10 time compared to when you had talked to him and he was 11 having problems early on after -- right after he started 12 with your company? 13 MR. FITZGERALD: Lack of foundation. 14 A. His tone was probably similar. 15 Q. (BY MS. WESTBY) Okay. Did he seem worse to 16 you? Better to you than that time? 17 A. Maybe a little worse. 18 Q. Did he say anything to you that you found 19 unusual or that was a concern to you? 20 MR. FITZGERALD: Lack of foundation. 21 A. No. 22 Q. (BY MS. WESTBY) How long was your 23 conversation, do you think? 24 A. About ten minutes maybe. 25 Q. And do you remember anything else that was 33 1 said during that conversation? 2 A. I just told him to take as long as he needed. 3 He had a job when he came back. 4 Q. Some information that we've received from 5 other sources indicates that there was maybe a problem 6 with his job prior to his death, maybe sometime fairly 7 soon -- or fairly close in time to his death, where 8 maybe there were some problems with the company. Maybe 9 some problems with the contracts. Are you aware of any 10 potential problems with his job? 11 A. I sure don't. 12 MR. FITZGERALD: The question is vague. 13 Q. (BY MS. WESTBY) Do you know if he had any 14 concerns about his job at that time maybe that was 15 unfounded or that he had received from somebody else? 16 MR. FITZGERALD: Lack of foundation. 17 A. Not that I know of, no. 18 Q. (BY MS. WESTBY) Okay. If you had to describe 19 his demeanor on the telephone, what words would you 20 use? 21 A. During which time? 22 Q. During this time right before he died. 23 A. Well, he just seemed saddened and I guess 24 depressed, for lack of a better word. 25 Q. Did you ever talk to Don again after that 34 1 Monday or Tuesday? 2 A. No, I didn't. 3 Q. Did you ever go to see him during that time 4 period? 5 A. No, I didn't. 6 Q. And is it correct that before that, it would 7 have maybe been a month since the last time you had 8 talked to him? 9 A. Probably. 10 Q. Then how did you find out about what had 11 happened? 12 A. A lawyer for the family had called me in the 13 middle of the night and had spoke of a -- that there was 14 a tragedy. And he was concerned that -- he knew what 15 Don did for us and wanted to make sure that everything 16 was going to be taken care of in the field. And I 17 assured him that it was. 18 Q. Do you know which attorney that was? 19 A. It was Joe Hallock. 20 Q. And what night would that have been? 21 A. It was late Friday night, Saturday morning, 22 middle of the night type of thing. 23 Q. And what were your thoughts when he called and 24 told you? 25 MR. FITZGERALD: Irrelevant. 35 1 Q. (BY MS. WESTBY) Were you surprised? 2 MR. FITZGERALD: Leading. 3 A. I was surprised. I thought -- not knowing 4 what was tragedy was, I -- it's one of those deals 5 that's kind of like a nightmare. You get calls in the 6 middle of the night wondering if -- I mean, even when I 7 heard it, I didn't quite believe it. But Joe didn't 8 really go into it, so I didn't know really what was 9 going on. I didn't know if it was to Don personally or 10 someone in his family. 11 Q. (BY MS. WESTBY) And after you learned about 12 what happened, did anything come to mind that you 13 thought, oh, you know, well something then seemed more 14 significant that he had either said or done prior to 15 this time? 16 A. No. 17 Q. What was your understanding of what had 18 happened? 19 A. I don't believe I -- other than what I read in 20 the newspapers, that pretty well spoke for itself what 21 happened. 22 Q. Okay. But did you ever hear or did anybody 23 ever tell you an explanation for why this had happened, 24 a reason why this had happened? 25 A. No, not really, because I didn't talk to too 36 1 many people associated with it. 2 Q. So your only information was from the 3 newspaper, then; is that correct? 4 A. Actually what happened, yeah. 5 Q. Were you aware of any times prior to working 6 with Don at Wellstar when he was out of work due to 7 similar kinds of problems? 8 A. I sure didn't. 9 MR. FITZGERALD: I'm sorry, could you 10 read that question back to me? It cut out on me. 11 (Record read.) 12 MR. FITZGERALD: Lack of foundation. 13 A. No, I wasn't. 14 Q. (BY MS. WESTBY) Were you aware of any 15 instances when Don had difficulty making it home from 16 the job at Wellstar? 17 MR. FITZGERALD: Lack of foundation. 18 A. No, I don't. 19 Q. (BY MS. WESTBY) Okay. Do you know if Don was 20 right- or left-handed? 21 A. I believe he was right-handed. 22 Q. Do you know if he -- when you saw him, did he 23 wear a wedding ring? 24 A. I think so. 25 Q. How would you describe Don and Rita's house? 37 1 A. Few times we were there, it was immaculate. 2 Q. Did you know that Don had guns in the house? 3 A. No, I didn't. 4 Q. Did you know that he owned guns? 5 A. No. 6 Q. Did Don ever mention suicidal feelings when he 7 was talking to you about his problems? 8 A. No, he didn't. 9 Q. How serious or severe did he tell you these -- 10 I think you described it as depression-related problems 11 were? 12 MR. FITZGERALD: Lack of foundation. 13 A. I don't think he really ever said they were 14 very serious in his own mind. 15 Q. (BY MS. WESTBY) Okay. Did you and your wife 16 ever use Rita Schell as a real estate agent? 17 A. Yes. 18 Q. And on how many occasions did she work in that 19 capacity for you? 20 A. Probably a couple, two. 21 Q. How did that relationship work? 22 A. It was fine. She kind of knew what we wanted, 23 so she was always willing to find whatever we were 24 looking for at the time. 25 Q. Okay. Were you involved in a real estate 38 1 transaction with her within a few weeks or months prior 2 to the deaths? 3 A. It had been quite a few months before that 4 probably. 5 Q. Okay. And did that involve a new-construction 6 home being built by Tonn Construction? 7 A. Yes. 8 Q. Okay. Did you put an offer and sign a 9 contract for that home? 10 A. Yes, we did, contingent upon selling our own 11 home. 12 Q. Did you subsequently -- were you subsequently 13 released from that contract? 14 A. 'Cause they had another offer I believe on that 15 house, and we hadn't sold our house. So everything was 16 kind of null and void then. 17 Q. Were you upset about how this transaction 18 proceeded, about anything about this transaction? 19 A. Of course we didn't have our house sold. We 20 were a little upset we didn't have our house sold and 21 lost the settlement. But it's not like we were out on 22 the street, so.... 23 Q. Were there any problems with Tonn 24 Construction, where Tonn Construction felt like you had 25 not complied with your requirements under the contract? 39 1 A. That would be up to them to answer, I would 2 assume. 3 Q. Did they ever give you that impression, or did 4 Rita ever give that you impression from them? 5 A. Not that I know of. 6 Q. Were you aware of any impending or threatened 7 litigation from Tonn Construction? 8 A. Yes. 9 Q. And tell me about that. 10 A. The time frame that that happened, I don't 11 know how the final paperwork came out of the people who 12 eventually bought the house. But I think that they 13 thought that they, in the time frame that we were going 14 to do the deal until they closed the deal, I think they 15 felt they lost some money on the deal in the housing 16 market at the time. 17 Q. So while they were holding the house for you, 18 they felt like they had lost some money? 19 A. Right. 20 Q. And were you -- did you tell Tonn Construction 21 that you were potentially going to be able to get money 22 from your father to cover any time frame between the 23 time you sold your house to the time you bought the new 24 house? 25 MR. FITZGERALD: For the sake of the 40 1 record, this is so irrelevant that it shouldn't be 2 inquired into. I guess depositions are fair ground to 3 ask anything that might lead to the discovery of 4 admissible evidence. But this looks irrelevant, so I 5 object on the grounds it's overbroad. 6 A. The only problem was that my father was 7 probably going to be a cosigner on the loan. 8 Q. (BY MS. WESTBY) And that fell through? 9 A. The deal fell through. 10 Q. How did you become aware that there was 11 possible litigation or the suit was possibly going to be 12 filed in regard to this transaction? 13 A. I had some correspondence I think from Tonn 14 Construction. 15 Q. What did you feel -- what was Rita's role in 16 all of this? 17 A. As far as litigation, I don't believe there 18 was anything that they had to do with it -- or she had 19 to do with it. 20 Q. Okay. Did you feel ever at any time that she 21 maybe had not given you all the information that you 22 needed in terms of the contract that you put on the Tonn 23 Construction? 24 A. I don't think so. 25 Q. Were you upset with her in any way about this 41 1 potential problem? 2 A. Which problem is that? 3 Q. The litigation, or the house, the contract 4 falling through? 5 A. There was not much she could do about the 6 house deal falling through. We didn't have our house 7 sold, and they had an offer that they took. Of course, 8 we would have liked to have moved in, but it just didn't 9 work out that way. 10 Q. And were you upset with her about -- you know, 11 either not selling your house, the problems with the 12 Tonn Construction house, anything like that? 13 A. No. I think we all wanted our house sold. 14 But it didn't work out that way. 15 Q. Did you ever talk to Don about these 16 problems? 17 A. No. 18 Q. Was suit ever filed? 19 A. No, it was not. 20 Q. Okay. Since their death or at any time prior 21 to their death, did you ever receive information from 22 any source about Don's psychological problems? 23 A. No. 24 MR. FITZGERALD: Lack of foundation, 25 overbroad. 42 1 A. No. 2 Q. (BY MS. WESTBY) Were you surprised about what 3 you had read in the newspaper about what happened? 4 A. To say the least, yes. 5 Q. Did your wife ever receive information from 6 any other source about Don's psychological problems? 7 A. No. 8 MR. FITZGERALD: Lack of foundation. 9 Q. (BY MS. WESTBY) I think that is all that I 10 have for you right now. Mr. Fitzgerald may have some 11 additional questions, and I may think of one or two 12 after he's done. 13 CROSS-EXAMINATION 14 Q. (BY MR. FITZGERALD) Mr. Wagner, this case is 15 set for trial starting May 21st in Wyoming here. And 16 the question I have for you is it's going to go for a 17 3-week period of time. Will you be out of Wyoming 18 during that time? 19 A. Yes. 20 Q. Where will you be? 21 A. Texas. 22 Q. For the whole three weeks? 23 A. No, probably a week period in there. 24 Q. One of those weeks during that time, and the 25 other two weeks you'll be around? 43 1 A. I think so. It's a long ways away. 2 Q. All right. Well, could we have a phone number 3 for you in case we need to call you later and figure out 4 which of those weeks you're not going to be around? 5 A. Yeah. It's 686-5716. That's my office 6 number. 7 Q. Okay. I have no other questions. Thank you. 8 REDIRECT EXAMINATION 9 Q. (BY MS. WESTBY) Okay, just so I'm clear, the 10 last contact that you ever had with Don or Rita Schell 11 was on Monday night or Tuesday prior to their death when 12 he called to tell you he was going to be out of work? 13 A. Yes. 14 Q. Okay. I have nothing further. 15 You have the right to read and sign your 16 deposition if you would like to do that. It can be sent 17 to you, and then you can make sure that the spellings 18 are right and that everything is correct in there. 19 Would you like to do that? 20 A. That would be fine. 21 (Deposition proceedings concluded 22 at 12:16 p.m., February 13, 2001.) 23 24 25 44 1 DEPONENT'S CERTIFICATE 2 I, RONALD D. WAGNER, do hereby certify 3 that I have read the foregoing transcript of my 4 testimony consisting of 43 pages, taken on February 13, 5 2001 and that the same is a full, true and correct 6 record of my deposition. 7 8 RONALD D. WAGNER 9 10 ( ) No changes ( ) Changes attached 11 12 13 Subscribed and sworn to before me this 14 day of , 2001. 15 16 17 Notary Public 18 19 20 21 My commission expires: 22 23 24 25 45 1 C E R T I F I C A T E 2 I, VONNI R. BRAY, Registered Professional 3 Reporter, and Notary Public of the State of Wyoming, do 4 hereby certify that RONALD D. WAGNER was by me first 5 duly sworn to testify to the truth, the whole truth, and 6 nothing but the truth; 7 That the foregoing transcript, consisting of 8 43 typewritten pages, is a true record of the testimony 9 given by the said deponent, together with all other 10 proceedings herein contained. 11 IN WITNESS WHEREOF, I have hereunto set my 12 hand and affixed my Notarial Seal this day of 13 February, 2001. 14 15 16 17 VONNI R. BRAY, RPR 18 19 My commission expires July 6, 2003. 20 21 22 23 24 25