368 1 IN THE UNITED STATES DISTRICT COURT 2 DISTRICT OF WYOMING 3 -------------------------------------------------------- 4 THE ESTATES OF DEBORAH MARIE TOBIN and ALYSSA ANN TOBIN, deceased, by 5 TIMOTHY JOHN TOBIN, personal representative; and THE ESTATES OF 6 DONALD JACK SCHELL and RITA CHARLOTTE SCHELL, deceased, 7 by NEVA KAY HARDY, personal representative, 8 Plaintiffs, Case No. 00-CV-0025-BEA 9 vs. May 23, 2001 Volume III 10 SMITHKLINE BEECHAM PHARMACEUTICALS, 11 Defendant. ----------------------------------------------------------- 12 13 14 TRANSCRIPT OF TRIAL PROCEEDINGS 15 16 Transcript of Trial Proceedings in the above-entitled 17 matter before the Honorable William C. Beaman, Magistrate, 18 and a jury of eight, at Cheyenne, Wyoming, commencing on the 19 21st day of May, 2001. 20 21 22 23 Court Reporter: Ms. Janet Dew-Harris, RPR, FCRR Official Court Reporter 24 2120 Capitol Avenue Room 2228 25 Cheyenne, Wyoming 82001 (307) 635-3884 369 1 A P P E A R A N C E S 2 For the Plaintiffs: MR. JAMES E. FITZGERALD Attorney at Law 3 THE FITZGERALD LAW FIRM 2108 Warren Avenue 4 Cheyenne, Wyoming 82001 5 MR. ANDY VICKERY Attorney at Law 6 VICKERY & WALDNER, LLP 2929 Allen Parkway 7 Suite 2410 Houston, Texas 77019 8 For the Defendant: MR. THOMAS G. GORMAN 9 MS. MISHA E. WESTBY Attorneys at Law 10 HIRST & APPLEGATE, P.C. 1720 Carey Avenue 11 Suite 200 Cheyenne, Wyoming 82001 12 MR. CHARLES F. PREUSS 13 MR. VERN ZVOLEFF Attorneys at Law 14 PREUSS SHANAGHER ZVOLEFF & ZIMMER 225 Bush Street 15 15th Floor San Francisco, California 94104 16 MS. TAMAR P. HALPERN, Ph.D. 17 Attorney at Law PHILLIPS LYTLE HITCHCOCK 18 BLAINE & HUBER, LLP 3400 HSBC Center 19 Buffalo, New York 14203 20 INDEX TO WITNESSES 21 PLAINTIFFS' PAGE JOHN MALTSBERGER, M.D. 22 Continued Direct - Mr. Vickery 372 Cross - Mr. Preuss 415 23 Redirect - Mr. Vickery 485 Recross - Mr. Preuss 494 24 RICHARD EWING 25 Voir Dire - Mr. Vickery 427 Voir Dire - Mr. Zvoleff 432 370 1 INDEX TO WITNESSES CONTINUED 2 PLAINTIFF'S PAGE PENNY DURANT 3 Direct - Mr. Fitzgerald 496 4 BONNIE ROSSELLO Videotape Deposition played 531 5 THOMAS OGG 6 Deposition testimony read 545 7 IAN HUDSON, M.D. Videotape Deposition played 564 8 INDEX TO EXHIBITS 9 PLAINTIFF'S RECEIVED 3-A 485 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 371 09:15:59 1 P R O C E E D I N G S 09:15:59 2 (Trial proceedings reconvened 09:15:59 3 9:00 a.m., May 23, 2001.) 09:15:59 4 (Following out of the presence of the jury.) 09:15:59 5 THE COURT: The record should reflect court is in 09:15:59 6 session without the jury at this time because I understand 09:15:59 7 one of the parties wishes to place some information on the 09:15:59 8 record. 09:15:59 9 Mr. Preuss. 09:15:59 10 MR. PREUSS: Yes, Your Honor, it was brought to my 09:15:59 11 attention after Dr. Healy's examination yesterday that there 09:15:59 12 was a visual exchange between Dr. Healy during the course of 09:15:59 13 the testimony and juror number 1 to include some winking and 09:15:59 14 some words were said by Dr. Healy as the jury filed out. 09:15:59 15 My only purpose in putting it on the record -- I know 09:15:59 16 the judge has given the admonition to the jurors and what we 09:15:59 17 can and cannot do, and I'm just concerned that we make sure 09:15:59 18 the jury stay pure and isolated during the course of the 09:15:59 19 trial. 09:15:59 20 THE COURT: Thank you very much. 09:15:59 21 Anything from you, Mr. Vickery? 09:15:59 22 MR. VICKERY: All I was going to say is I did discuss 09:15:59 23 it with Mr. Preuss when I learned about it. Of course as an 09:15:59 24 officer of the court I told all my witnesses to avoid any 09:15:59 25 kind of contact with the jury. I can't say, "Don't look at 372 09:15:59 1 the jury," and I did hear as Dr. Healy started to step off 09:15:59 2 and the jury started to walk out at the same time he stepped 09:15:59 3 back and said, "Go ahead," or something like that, but 09:15:59 4 nothing beyond that. 09:15:59 5 THE COURT: Very well. Thank you very much. 09:15:59 6 We will stand in recess for five minutes. 09:15:59 7 (Recess taken 9:00 a.m. until 9:05 a.m.) 8 (Following in the presence of the jury.) 09:16:12 9 THE COURT: Mr. Vickery, you may recall 09:16:16 10 Dr. Maltsberger. 09:16:26 11 MR. PREUSS: Your Honor, while the witness is taking 09:16:28 12 the stand I would like to renew my objection under the 09:16:31 13 Daubert ruling for purposes of the record and reserve my 09:16:34 14 questions to cross-examination. 09:16:35 15 THE COURT: Very well, so noted. 09:16:40 16 Dr. Maltsberger, I need to remind you again you're 09:16:44 17 still under oath. 09:16:45 18 THE WITNESS: Yes, Your Honor. 19 20 JOHN MALTSBERGER, M.D., 21 called as a witness on behalf of the Plaintiffs, being 22 previously duly sworn, testified further as follows: 23 CONTINUED DIRECT EXAMINATION 09:16:46 24 Q. (BY MR. VICKERY) Good morning, sir. 09:16:50 25 A. Good morning, Mr. Vickery. 373 09:16:52 1 Q. We talked yesterday mainly about your background and 09:16:55 2 experience and credentials, and there are just two things I 09:17:00 3 wanted to do to finish that topic and then we'll move on to 09:17:05 4 others. 09:17:06 5 As a Texan I must ask you this: Where were you born 09:17:10 6 and raised? 09:17:11 7 A. I was born in a small town in southwest Texas, the name of 09:17:15 8 Cotulla, down southwest of San Antonio. I was raised on a 09:17:19 9 cattle ranch. 09:17:20 10 Q. You abandoned that to go east for your education and 09:17:22 11 stayed out there ever since? 09:17:24 12 A. That's right. I found an attractive woman and married 09:17:27 13 her. 09:17:28 14 Q. Dr. Maltsberger, on a different note, we were talking 09:17:34 15 about your interest in suicidality and suicidology as a field 09:17:38 16 of study or endeavor. Has that field matured over the years? 09:17:42 17 A. Yes, there was very little being published back in 1960 09:17:45 18 which was when I first became interested. There's been an 09:17:48 19 explosion of interest in the subject and now there are lots 09:17:53 20 of articles every year. 09:17:55 21 Q. And indeed, last year did someone publish for the first 09:17:59 22 time ever a comprehensive textbook of suicidology? 09:18:07 23 A. That's right. 09:18:07 24 Q. Is this that book? 09:18:08 25 A. Yes, that's it. 374 09:18:09 1 Q. And are you one of the people that were asked by the 09:18:11 2 publishers to write a little jacket endorsement on the back 09:18:15 3 of the book? 09:18:16 4 A. I was asked, yes. 09:18:17 5 Q. And do you know, is there another one that the jury will 09:18:20 6 meet during the course of this trial that was asked to 09:18:22 7 endorse this book? 09:18:23 8 A. Yes, Dr. John Mann also wrote a recommendation for the 09:18:27 9 book. 09:18:34 10 Q. The jury has heard some medical terms, akathisia and 09:18:38 11 mania, and we're going to be talking about those in your 09:18:41 12 testimony. 09:18:46 13 Can you give us a lay term that would be common to 09:18:50 14 our own experience and would be a reasonable approximation of 09:18:55 15 what someone who has akathisia would be experiencing? 09:18:59 16 A. Well, the main characteristic of akathisia is an 09:19:05 17 experience of inner turmoil, tremendous inner restlessness. 09:19:13 18 Turmoil is as good a word as there is, I think. And it is 09:19:18 19 often so intense that the patients will be visibly restless. 09:19:25 20 They will fidget, they will -- they can't sit still. They 09:19:29 21 tap their feet, they get up, they walk about. 09:19:34 22 But the primary central phenomenon is the experience 09:19:37 23 of inner turmoil. 09:19:39 24 Q. And how about the word "mania"? What would be a 09:19:43 25 reasonable approximation just in plain folksspeak? 375 09:19:48 1 A. It is a state of such uncontrollable excitement that the 09:19:52 2 patients could be said to be in a frenzy. 09:19:54 3 Q. Frenzy would be the word? 09:19:56 4 A. That's right. 09:20:08 5 Q. Do some psychoactive drugs that affect the brain cause 09:20:12 6 turmoil and/or frenzy? 09:20:18 7 A. Yes. 09:20:18 8 Q. You've been studying suicide for 41 years now. Do 09:20:19 9 patients who have drug-induced conditions of turmoil or 09:20:23 10 frenzy or both commit suicide? Are those the folks that 09:20:28 11 commit suicide? 09:20:29 12 A. Oh, yes. There is plenty of reason to believe that the 09:20:32 13 people who commit suicide are people that are in such a state 09:20:36 14 of intense inner anguish and turmoil and suffering that they 09:20:42 15 can't stand it another minute and that they have to do 09:20:44 16 something, even if it is suicide, to get away from it. It is 09:20:48 17 a perfectly horrible experience. 09:20:50 18 Q. How about homicide? Do people who are in a state of 09:20:54 19 drug-induced turmoil or frenzy commit homicide? 09:20:59 20 A. Patients who are driven into a frenzy very often are not 09:21:03 21 thinking straight. They very often are suspicious. They may 09:21:08 22 believe that others are after them. They may be -- they may 09:21:12 23 imagine that the police are after them or that awful things 09:21:16 24 are about to happen and they will start to behave really very 09:21:21 25 aggressively. They can't think straight they're so terribly 376 09:21:24 1 excited. 09:21:36 2 Q. Let's move to your gut opinions in this case as delineated 09:21:39 3 in your Rule 26 report and discussed with counsel at your 09:21:42 4 deposition. 09:21:43 5 Is it your opinion that SSRI drugs like Paxil cause 09:21:48 6 some people to become violent and suicidal? 09:21:52 7 A. Yes. 09:21:53 8 MR. PREUSS: Objection, Your Honor. This witness is 09:21:55 9 restricted to the specifics, not general causation by 09:21:58 10 stipulation of counsel. 09:22:01 11 MR. VICKERY: I should have finished the sentence. 09:22:04 12 Q. (BY MR. VICKERY) Let me rephrase. Is it your opinion in 09:22:10 13 this case that Don Schell committed the acts of homicide and 09:22:15 14 suicide that he did because of the Paxil? 09:22:20 15 A. Yes. 09:22:21 16 Q. Do you hold that opinion to a degree of reasonable medical 09:22:24 17 certainty? 09:22:25 18 A. Yes. 09:22:30 19 Q. Now, I want to talk with you about the bases of that 09:22:33 20 opinion. You will recall Mr. Preuss asked Mr. Healy about 09:22:37 21 things you had reviewed. 09:22:39 22 Do you have your report up there with you? 09:22:41 23 A. I forgot and left it back there in the pew, if somebody 09:22:45 24 will -- 09:22:47 25 MR. VICKERY: May I approach him, Your Honor? 377 09:22:49 1 THE COURT: Yes, you may. 09:22:52 2 THE WITNESS: Thank you. 09:22:55 3 Q. (BY MR. VICKERY) Would you just sort of tick off for us 09:22:59 4 the various things that you read or considered before 09:23:02 5 arriving at your opinions? 09:23:06 6 A. Yes. I reviewed the following: A preliminary draft 09:23:14 7 entitled Application for Admission Pro Hac Vice; medical 09:23:22 8 record of Don Schell from Dr. Buchanan; medical record of Don 09:23:28 9 Schell from Dr. Patel; Gillette Police Department reports; 09:23:35 10 autopsy report on Don Schell; an in-house report by Yan Cheng 09:23:41 11 from SmithKline Beecham entitled Paroxetine: Aggression; the 09:23:51 12 Physician's Desk Reference for 1998 on Paxil; same book, same 09:23:56 13 year on Ambien; an article by Dr. S. Donovan and colleagues 09:24:01 14 entitled Deliberate Self-Harm and Antidepressant Drugs; 09:24:06 15 declaration of Dr. Jonathan Cole in the Miller versus Phizer 09:24:11 16 case; and the following deposition transcripts: Neva Hardy, 09:24:19 17 Ian Hudson, M.D., K.L. Patel, M.D., Flo Reavis, Michael 09:24:27 18 Schell, Betty Faye Smith, George Albert Smith, Timothy Tobin, 09:24:33 19 David Wheadon. 09:24:35 20 And there's some other materials that I should 09:24:39 21 mention. I had read already Dr. Healy's book called The 09:24:47 22 Antidepressant Era. Your office supplied me a couple of 09:24:53 23 other articles that he had written, one entitled The 09:24:56 24 Emergence of Antidepressant Induced Suicidality and another 09:25:01 25 one, Zoloft and Suicide. 378 09:25:06 1 And then there was an article by Jan Fausset called 09:25:10 2 The Detection and Consequences of Anxiety and Clinical 09:25:14 3 Depression. 09:25:15 4 Another article on Clinical Features of Inpatient 09:25:18 5 Suicide by Bush and colleagues. 09:25:20 6 Another article by Dr. Fausset on Risk Factors in 09:25:25 7 Depression and Panic Disorder. 09:25:29 8 And yet another article by Dr. Fausset, Time Related 09:25:33 9 Predictors of Suicide. 09:25:35 10 That's the list. 09:25:37 11 Q. Did you continue to read other materials as they became 09:25:41 12 available? 09:25:42 13 A. Yes, other materials that I read before I was deposed were 09:25:50 14 deposition transcripts of Dr. Mark Suhany, Dr. Patrick 09:25:56 15 Buchanan and Dr. Leigh Hemphill, and then there were yet 09:26:02 16 other materials after I was deposed which I've looked at, 09:26:09 17 materials that come from experts for SmithKline Beecham. 09:26:16 18 Q. Now, do those materials that you reviewed after your 09:26:19 19 deposition form any basis of your opinion in this case? 09:26:23 20 A. They had nothing to do with the -- the forming of the 09:26:26 21 basis of my opinion and they've not led me to change my 09:26:33 22 opinion. If anything, they have reinforced my opinion. 09:27:09 23 Q. Let's talk about the issue of specific causation and how 09:27:09 24 someone as yourself, a clinician, goes about deciding that 09:27:09 25 and how. 379 09:27:09 1 Do you prescribe SSRI drugs? 09:27:09 2 A. Sure. 09:27:09 3 Q. Have you ever prescribed Paxil? 09:27:09 4 A. I have. 09:27:09 5 Q. Do you regularly prescribe Paxil now? 09:27:09 6 A. I tend to avoid it. 09:27:09 7 Q. Why? 09:27:09 8 A. Well, I've had some bad experiences with it. I had one 09:27:11 9 patient a while back who was a lawyer, as a matter of fact, a 09:27:14 10 trial lawyer from Boston. I will say no more. 09:27:17 11 Q. Thanks for saying Boston. That rules us all out. 09:27:21 12 A. He is an admirable gentleman because he had horrible 09:27:25 13 depression and nevertheless was able to lead a very 09:27:28 14 successful professional life. 09:27:32 15 Q. What happened to him when you tried him on Paxil? 09:27:34 16 A. And I gave him some Paxil and he said within the first few 09:27:38 17 days of taking it that he couldn't stand this drug, that it 09:27:42 18 made him feel ever so much worse, very uncomfortable on the 09:27:48 19 inside, and that it was so sedative that he could hardly 09:27:55 20 stand it. So I took him off. 09:27:58 21 Then I had -- 09:27:59 22 Q. Any other experiences? 09:28:00 23 A. I had another patient who was in the hospital. He was 09:28:09 24 quite suicidal and he was put on Paxil and within the first 09:28:13 25 few days of taking Paxil he developed the staggers. He could 380 09:28:19 1 hardly walk straight. He was trembling and shaking and he 09:28:23 2 felt very uncomfortable. And we took him off and he got 09:28:27 3 better. 09:28:28 4 Q. When you took him off of the drug did those symptoms that 09:28:30 5 had manifested themselves right after he started on it go 09:28:33 6 away? 09:28:34 7 A. The shaking and the terrible restlessness. Although he 09:28:43 8 had had some before, it was much worse on Paxil. 09:28:45 9 Q. Are there any other instances from your clinical practice, 09:28:48 10 either where you have had the patient as a primary doctor or 09:28:51 11 been consulted in on a case where there have been bad 09:28:54 12 experiences on Paxil? 09:28:55 13 A. Well, I've heard of them, anecdotal reports that I hear. 09:29:05 14 I tend for these reasons not to prescribe it. I don't mean 09:29:08 15 to say it is the only one of the SSRIs that can do this, but 09:29:12 16 having had unpleasant experiences with it, I prefer to give 09:29:15 17 my patients other drugs that I've had better luck with. 09:29:18 18 Q. And when you use other drugs in the SSRI class of drugs, 09:29:24 19 do you take any kind of special protective measures? 09:29:33 20 A. Well, yes, I do. I am -- let me put it this way: I think 09:29:37 21 that what kills most people who are going to commit suicide 09:29:42 22 when they are in a depression is the escalation of inner 09:29:48 23 turmoil and anguish. 09:29:56 24 And if I have a patient -- and I always ask patients 09:29:58 25 to describe to me what their inner experience is before they 381 09:30:01 1 get any drug. I want to know. I ask them about anguish, 09:30:05 2 turmoil, restlessness. And if the patients have a 09:30:13 3 substantial degree of that, I take note of it because that's 09:30:16 4 going to pose problems if I give an SSRI drug. 09:30:25 5 The other thing I'm careful to ask about is if 09:30:28 6 there's been any period in the past of people getting revved 09:30:32 7 up, overactive, excited, anything that suggests the early 09:30:36 8 forms of frenzy. If I can see any warning signals of it 09:30:41 9 coming and if I find any of that in the history, I am also 09:30:46 10 careful with the SSRIs. 09:30:49 11 Now, I might give such a patient -- 09:30:51 12 Q. Well, let me follow up on that. If you decided in your 09:30:54 13 clinical judgment that in spite of one of these histories you 09:30:58 14 were going to give an SSRI drug, what type of protective 09:31:01 15 measure would you take? 09:31:08 16 A. I would prescribe at the same time either a sedative, such 09:31:11 17 as lorazepam. Maybe the jury has heard of that. It is a 09:31:15 18 common prescription drug sold under the name of Ativan, a 09:31:19 19 minor tranquilizer. 09:31:21 20 Q. Is that in the class of benzodiazepines? 09:31:23 21 A. Yes. 09:31:24 22 Q. Or what else might you do? 09:31:26 23 A. I might actually go ahead and give the patient a mood 09:31:29 24 stabilizer, one of the drugs that is used to protect patients 09:31:33 25 against getting into a mania, something like valproic acid. 382 09:31:38 1 Q. And how long would you have to give this other drug in 09:31:41 2 conjunction with an SSRI drug at the start of their taking 09:31:46 3 that drug? 09:31:47 4 A. Well, I never prescribe SSRIs without seeing the patients 09:31:52 5 for the first six or eight weeks at least once a week, and I 09:31:57 6 tend in the first week or ten days to talk to my patients on 09:32:00 7 the telephone in between sessions to see how they're getting 09:32:07 8 along. 09:32:08 9 If things seem to go well and the patients are 09:32:14 10 sleeping well and they're not terribly anxious and they're 09:32:21 11 not agitated or restless, then slowly I would wean off the 09:32:29 12 benzodiazepine. 09:32:29 13 Q. The protective drug? 09:32:32 14 A. That's right. 09:32:32 15 Q. Do you also -- when you're giving an SSRI, particularly 09:32:35 16 to someone who has anxiety as Mr. Schell did, do you do 09:32:39 17 anything with respect to the dosing of that medication? 09:32:45 18 A. Well, I do that as a matter of course and I think it is 09:32:47 19 the best practice and lots of experienced psychiatrists do it 09:32:51 20 with all of the SSRIs, or for that matter, other kinds of 09:32:54 21 antidepressants. 09:32:55 22 I tell my patients to take half the recommended dose 09:33:00 23 for three or four days to see if they're going to get any of 09:33:05 24 the side effects. 09:33:06 25 Q. How do you take half the dose if it is in a capsule? Do 383 09:33:10 1 these medications come in capsules? 09:33:13 2 A. I can't remember how Paxil comes. Some of the other ones 09:33:16 3 are tablets so you can break them in two. I have told people 09:33:21 4 if I want them to take a reduced dose of something in a 09:33:25 5 capsule, open the capsule, mix it with a little bit of 09:33:28 6 applesauce, stir it up with a spoon, take half and put the 09:33:33 7 rest aside for the next day. 09:33:36 8 Q. Mr. Maltsberger, where did you learn about the protective 09:33:39 9 measures -- dosing, titrating or other measures -- to protect 09:33:44 10 them? Did you learn that from the labels of these drugs? 09:33:47 11 A. I certainly didn't. 09:33:48 12 Q. Is there anything on the label of Paxil that would alert 09:33:51 13 you as a physician to take those precautionary measures? 09:33:54 14 A. No. I learned it because I had a good training and I said 09:34:03 15 to some people in a joke that I've been confined to a 09:34:05 16 psychiatric hospital for the last 40 years. That's where I 09:34:09 17 learned it. 09:34:10 18 Q. What about those physicians like Dr. Patel who are not 09:34:14 19 psychiatrists, who don't have the specialized training in 09:34:18 20 mental health that you have had? How are they supposed to 09:34:22 21 learn about these things? 09:34:24 22 A. How should they learn? 09:34:26 23 Q. Yes. 09:34:26 24 A. I think that they should learn from the labeling of the 09:34:32 25 medicines. They should learn it from the pharmaceutical 384 09:34:37 1 representatives who call on them in their offices like 09:34:39 2 Mr. Haase that we heard here the other day. 09:34:43 3 I think it is incumbent on the pharmaceutical houses 09:34:47 4 to print out full information about these drugs and their 09:34:52 5 hazards and to supply that to the doctors and to supply it to 09:34:57 6 their representatives who can supply it to the doctors. 09:35:01 7 The present state of affairs is that the warnings are 09:35:04 8 inadequate so that their own pharmaceutical reps don't know 09:35:09 9 about it and so they can't tell the doctors about it. And 09:35:16 10 the doctors -- 09:35:18 11 MR. PREUSS: Objection, no foundation as to what all 09:35:20 12 reps know or don't know. No foundation as to personal 09:35:24 13 information. 09:35:25 14 THE COURT: Sustained. 09:35:26 15 Q. (BY MR. VICKERY) You were here for Mr. Haase's 09:35:27 16 deposition -- his testimony in court, right? 09:35:29 17 A. Yes. 09:35:29 18 Q. And did you hear him say in six weeks of training at 09:35:33 19 SmithKline Beecham he had had no training whatsoever about 09:35:35 20 this drug causing or precipitating violence or suicide? 09:35:39 21 A. I very surely did. And I think that's shocking. 09:35:47 22 Q. Let me ask you, you say the warnings are inadequate. Is 09:35:49 23 there indeed any warning whatsoever on the package insert of 09:35:52 24 Paxil that alerts physicians, particularly primary care 09:35:58 25 physicians, that this drug might actually be the culprit, it 385 09:36:02 1 might actually trigger violent or suicidal behavior? 09:36:06 2 A. There's nothing in the labeling that says so. 09:36:08 3 Q. You think there should be? 09:36:09 4 A. I sure do. 09:36:10 5 Q. You think it ought to be in a black box to get their 09:36:14 6 attention? 09:36:15 7 A. I do. I do. Any doctor that's going to give this drug 09:36:18 8 ought to be aware that for a small subpopulation these drugs 09:36:26 9 can drive people wild. 09:36:55 10 Q. You were asked in your deposition to draft a warning, were 09:36:55 11 you not, sir? 09:36:55 12 A. Yes, I was. 09:36:55 13 Q. Let's have a look at it. It is in evidence. 09:37:16 14 MR. GORMAN: You say this is in evidence, Andy? 09:37:19 15 MR. VICKERY: Yes, it certainly is. It is 17 and I 09:37:22 16 believe it was offered yesterday. 09:38:26 17 Q. (BY MR. VICKERY) Can you read that on the screen that's 09:38:27 18 close to you? You may be able to read it easier. 09:38:30 19 A. This is better. 09:38:31 20 Q. Would you read that out loud for us, please, sir, 09:38:33 21 Exhibit 17 for our record? 09:38:35 22 A. You can hear me okay? It says, "Physicians should be 09:38:38 23 aware that in rare instances SSRI compounds such as Paxil may 09:38:46 24 produce acute homicidal and suicidal states. Close 09:38:53 25 monitoring of patients is indicated in the course of the 386 09:38:56 1 first six weeks of prescription of these drugs, especially 09:39:00 2 when there is a history of unusual anxiety, hypomania or 09:39:04 3 akathisia." 09:39:14 4 Q. Dr. Maltsberger, are you an expert in drafting warnings? 09:39:23 5 A. I never drafted a warning before I was asked. I think a 09:39:24 6 couple of lawyers different times have asked me to draft a 09:39:28 7 warning. That's the only times I've ever done it. 09:39:31 8 Q. How difficult, how hard was it for you to come up with 09:39:33 9 this language? 09:39:36 10 A. I believe it is called a no-brainer, Mr. Vickery. I mean, 09:39:39 11 it was perfectly obvious what to put in it. 09:39:42 12 Q. Do they have to use your words or just words to convey 09:39:47 13 this kind of message? 09:39:48 14 A. I'm not in a position to dictate to the pharmaceutical 09:39:51 15 companies the exact language, but I think that they ought to 09:39:53 16 have bold warnings in the product information that contains 09:39:58 17 the general sense of what is in there. 09:40:05 18 Q. Let me ask you about something. We know, we all know, 09:40:09 19 that the FDA is part of that picture as well, correct? 09:40:12 20 A. Yes. 09:40:13 21 Q. And in your report in this case you quoted a couple of 09:40:18 22 questions and answers from the testimony of the 09:40:21 23 vice-president of SmithKline Beecham, gentleman named David 09:40:26 24 Wheadon, right? 09:40:28 25 A. I did. 387 09:40:28 1 Q. Would you read for us from your report those two questions 09:40:33 2 and answers? 09:40:35 3 A. Sure. I would rather read the paragraph before as well. 09:40:50 4 Q. All right. If you would, to put it -- is that necessary 09:40:54 5 to put it in context? 09:40:55 6 A. I think so. 09:40:56 7 THE COURT: What are we reading from? 09:40:58 8 MR. VICKERY: His Rule 26 report, Your Honor. 09:41:00 9 THE COURT: What page? 09:41:01 10 THE WITNESS: Page 7, Your Honor, the first one dated 09:41:04 11 the 20th of January, 2001. 09:41:13 12 Q. (BY MR. VICKERY) Go right ahead. 09:41:15 13 A. "It is well-known that none of the marketers of SSRI 09:41:19 14 compounds have ever carried out randomized double-blind 09:41:24 15 trials to determine whether these drugs can cause suicide. 09:41:28 16 But I wish to emphasize this point: The daily practice of 09:41:33 17 medicine, of which psychiatry is a branch, does not require 09:41:40 18 pristine, rigorous evidence that a drug can drive rare, 09:41:45 19 dangerous events. Clinicians should be guided as to whether 09:41:49 20 there is reason to believe that such rare events probably 09:41:53 21 occur in association with SSRI drugs. There is ample reason 09:42:01 22 to believe that this is the case, but pharmaceutical houses 09:42:05 23 continue to avoid publishing black box warnings emphasizing 09:42:09 24 that there is such a risk when SSRI drugs are prescribed. I 09:42:14 25 would draw attention to the following testimony in this 388 09:42:16 1 case" -- 09:42:20 2 Q. Tell you what, so it is clear who is asking the questions, 09:42:22 3 let me ask the questions I asked of Dr. Wheadon in the 09:42:26 4 deposition and you read the answers he gave. 09:42:29 5 "And do the regulations, FDA regulations, 09:42:32 6 specifically say that you do not have to wait for proof of 09:42:35 7 causation of an adverse event?" 09:42:39 8 A. "The regulations do say that causation is not necessary 09:42:41 9 to be established." 09:42:43 10 Q. "So just if there is evidence" -- I'm sorry -- "so just 09:42:49 11 if there is reasonable evidence that the drug might cause 09:42:51 12 this, then a warning is appropriate, right?" 09:42:54 13 A. "That would be reason for discussion around adding a 09:42:57 14 warning, yes." 09:42:59 15 Q. Okay. Thank you, sir. 09:43:14 16 I would like to turn to the case of Don Schell and 09:43:17 17 ask you to provide, if you would, your clinical wisdom on 09:43:21 18 this case for us. 09:43:24 19 Now, you never got to see this man or know him or 09:43:27 20 treat him, did you? 09:43:29 21 A. Oh, no. 09:43:30 22 Q. You, like the other experts in this case, have to rely on 09:43:34 23 information that you can glean about what happened? 09:43:36 24 A. That's right. 09:43:37 25 Q. And is there a process within the field of suicidology, 389 09:43:42 1 process or method that a doctor such as you uses to analyze a 09:43:47 2 suicide and try to figure out why it happened? 09:43:50 3 A. Yes. 09:43:51 4 Q. What is it called? 09:43:52 5 A. Psychological autopsy. 09:44:01 6 Q. Is that what you did here? 09:44:02 7 A. In a rough manner of speaking. I analyzed all of the data 09:44:06 8 I had about this man and what preceded his suicide and came 09:44:09 9 to some conclusions. 09:44:11 10 That data included the testimony from members of the 09:44:14 11 family, people who knew him well, doctors' records, the 09:44:22 12 evidence that was collected in the preparation of this 09:44:25 13 lawsuit. 09:44:27 14 Q. Your report mentions that in his prior history he had 09:44:32 15 "several episodes of mild depression." Can you explain your 09:44:37 16 assessment of his prior medical history and its significance 09:44:40 17 to your opinions in this case? 09:44:42 18 A. Yes. It is clear that so far as we can tell that the 09:44:49 19 first time he came to medical attention because of depression 09:44:53 20 was in 1984, and he had a succession of depressive episodes 09:45:00 21 after that. They were all really very much the same. 09:45:08 22 The depressions that he had were anxious ones. He 09:45:12 23 was very tense. He was very agitated. I believe all of them 09:45:20 24 contained references to not sleeping well. It was a worried, 09:45:28 25 anxious, uneasy kind of depression. 390 09:45:38 1 And he was discouraged and had a lot of -- there was 09:45:39 2 crying in many of them. He had some morbid ideas, although, 09:45:44 3 so far as we can tell, he never had ideas of killing himself. 09:45:48 4 He had trouble concentrating. He didn't enjoy things very 09:45:57 5 much. His energy was not good. And that was the general 09:46:03 6 color of these depressions. 09:46:06 7 Q. Let me ask you a few specifics about those. Were they 09:46:11 8 usually confined in periods of time; in other words, rather 09:46:17 9 than -- I want the jury to get the correct picture. Are you 09:46:20 10 saying he was just that way for 15 years before his death or 09:46:23 11 are you saying there was some discrete instances? 09:46:27 12 A. It appears these were fairly discrete, separate episodes, 09:46:31 13 as far as we can tell. 09:46:33 14 He would typically get down. He would then after two 09:46:36 15 or three weeks go see the doctor. He would get some medicine 09:46:39 16 and he was then generally out of his depression within two or 09:46:43 17 three months, although one of them was somewhat longer. 09:46:46 18 But they were not terribly severe. They were not the 09:46:50 19 kind of depression that require hospital treatment. It was 09:46:57 20 not the kind of depression that necessarily alarmed anybody. 09:47:03 21 Large numbers of people in the general population 09:47:05 22 will have depressive episodes like this from time to time. 09:47:10 23 Q. So far as we can tell from the existing medical records, 09:47:14 24 the recollections of the doctors who treated him and his 09:47:17 25 family members, was there usually some kind of precipitating 391 09:47:23 1 life event, like stress at work or the death of a family 09:47:26 2 member, something like that? 09:47:28 3 A. Well, he tended to worry quite a lot about his work, and 09:47:32 4 particularly in the '80s, there were real difficulties in his 09:47:38 5 work. He was -- he worked in the oil industry. He had 09:47:47 6 responsibility to go around and check on wells that were 09:47:50 7 being pumped. 09:47:52 8 He was very afraid of getting laid off in the '80s. 09:47:56 9 That was not an unrealistic fear, and he does seem to have 09:48:04 10 gotten stressed out about that. 09:48:06 11 Later on, in the year before his death, there were a 09:48:10 12 couple of losses. He lost his father-in-law, Gerald, that he 09:48:17 13 was pretty close to, and sometime before that he lost a 09:48:22 14 brother. 09:48:24 15 He showed what to me would be expectable signs of 09:48:27 16 distress, but it was not anything that would alarm a 09:48:32 17 psychiatrist. I mean, he said he was -- he got kind of mad 09:48:37 18 when his father-in-law died. 09:48:39 19 Q. I wanted to ask you about that. What is your take -- one 09:48:41 20 of the witnesses in the depositions you read said he said 09:48:45 21 something -- I don't remember exactly, but like, "I never 09:48:51 22 liked him anyway," about his dead father-in-law. What's your 09:48:57 23 take on that? 09:48:58 24 A. I think if you lose somebody and it hurts, one way to deal 09:49:03 25 with it is to sort of say, "Well, that person didn't matter 392 09:49:06 1 to me anyway. I don't have them anymore but I didn't love 09:49:11 2 them anyway. They don't matter to me." 09:49:15 3 So some degree of irritation is not at all unusual in 09:49:19 4 the face of a bereavement. I remember one perfectly normal 09:49:23 5 woman who came into the emergency room after her husband, who 09:49:29 6 was a friend of mine, had died suddenly. And when they told 09:49:33 7 her the bad news, she flew into a rage and hit the wall with 09:49:39 8 her fist and said, "Goddammit. It is not fair." 09:49:45 9 So an angry reaction is sometimes predictable when 09:49:50 10 there's a loss and it doesn't necessarily mean anything 09:49:52 11 terribly sick. 09:49:53 12 Q. While we're talking about his past medical history, I want 09:49:57 13 to ask you about a couple things Mr. Preuss said in his 09:50:05 14 opening statement. 09:50:06 15 What's the significance to you that at least a couple 09:50:08 16 of those references reflect that he was out of work for a 09:50:12 17 month and in one instance each more than a month? 09:50:16 18 A. I think you have to put it in context. If one of you 09:50:19 19 lawyers fell into a depression and you didn't go to work, I 09:50:23 20 would bet because regular attendance to your office duties is 09:50:27 21 extremely important to your career, that it would probably 09:50:30 22 point in the direction of a rather substantial depression. 09:50:36 23 Most professional people who get into a depression such as 09:50:38 24 the lawyer I mentioned earlier who was my patient get up and 09:50:43 25 go to work even though they're horribly distressed. 393 09:50:51 1 Other people, particularly when the nature of their 09:50:53 2 work permits it, may elect to take some time off, especially 09:50:57 3 if it is easy to arrange some coverage. 09:51:00 4 And I think that's what Don Schell was doing. That's 09:51:03 5 my interpretation of his work absences. I think they were 09:51:11 6 more or less elective work absences and it was not that he 09:51:11 7 was so horribly depressed that he had no choice about it. 09:51:15 8 Q. Another thing that Mr. Preuss mentioned in his opening was 09:51:18 9 that some of these prior references talk about him being 09:51:22 10 irritable in conjunction with this. And what significance, 09:51:29 11 if any, does that have to you as you look at his past medical 09:51:33 12 history? 09:51:34 13 A. There are passing references to irritability in the 09:51:36 14 medical records, not on all of the occasions when he was 09:51:40 15 depressed but on three of them. I'm not sure I'm allowed to 09:51:46 16 mention Dr. Merrell's summary. It is a good one in that he 09:51:51 17 puts together the full data that comes to hand, including 09:51:57 18 some data that was gathered after I was deposed. 09:52:00 19 He identified six episodes, what he called six 09:52:08 20 episodes of depression. They were all mild. In the first, 09:52:11 21 third and sixth -- 09:52:13 22 MR. PREUSS: I will object to testimony coming out of 09:52:15 23 Dr. Merrell's report, particularly since that contains 09:52:18 24 information which the witness did not review and has told us 09:52:22 25 earlier did not rely on. 394 09:52:24 1 MR. VICKERY: That's fine. 09:52:25 2 THE COURT: Sustained. 09:52:27 3 A. Well, let me say -- maybe this will be permissible: That 09:52:31 4 there is reason to believe that -- 09:52:33 5 MR. PREUSS: Your Honor, could we proceed by question 09:52:35 6 and answer form, please? Objection. 09:52:38 7 Q. (BY MR. VICKERY) We have to do that here, 09:52:39 8 Dr. Maltsberger. I'm sorry. Let me ask you a question. 09:52:42 9 Is there anything in the prior medical history that 09:52:47 10 you have reviewed, including any matters highlighted from 09:52:53 11 information gleaned after your deposition, that causes you to 09:52:56 12 change your assessment and opinions about Paxil triggering 09:52:59 13 the homicide and suicide, an issue in this case? 09:53:07 14 A. No. May I add this, mild irritability is very common in 09:53:11 15 garden variety mild depressions. It is not an alarming 09:53:14 16 finding. 09:53:15 17 Q. Do you believe Don Schell had garden variety depressions 09:53:20 18 over the course of the years with these six episodes? 09:53:22 19 A. Yes. 09:53:23 20 Q. Your report also mentions the fact that there was this 09:53:28 21 anxiety component to his depression, particularly the last 09:53:34 22 one. 09:53:35 23 Of what significance is that in your assessment of 09:53:38 24 Don Schell's situation? 09:53:40 25 A. Well, we know that people who fall into turmoils or 395 09:53:46 1 frenzies, akathisias or manias, when they get into the full 09:53:55 2 states, they are profoundly anxious and nervous. We know 09:54:02 3 that they cannot sleep and we know that they are very 09:54:05 4 agitated. 09:54:11 5 In Dr. Patel's notes when Dr. Patel examined him 09:54:19 6 before giving him the Paxil, there's comments that the 09:54:22 7 patient was sleepless, very restless and agitated and there 09:54:26 8 was one thing in particular that bothered me. He said his 09:54:30 9 mind was racing at a hundred miles an hour. 09:54:33 10 Q. This is before he gets the Paxil, right? 09:54:35 11 A. That's right. 09:54:35 12 Q. What's the significance? 09:54:36 13 A. That suggests to me that there are warning signs that this 09:54:40 14 man might -- I couldn't say for sure, but a good practitioner 09:54:44 15 would know that these are warning signs that if this man gets 09:54:48 16 more revved up and more excited and more jazzed up by a drug, 09:54:55 17 that it is possible -- you would have to be afraid of a 09:55:02 18 possible turmoil or frenzy. 09:55:06 19 So I would not have given him an SSRI drug. That's 09:55:09 20 one thing. 09:55:09 21 The other thing is if I had, I would have given him 09:55:12 22 substantial coverage with some Ativan or a benzodiazepine to 09:55:16 23 protect against making him more nervous than he already was. 09:55:20 24 Q. Would you have titrated his dose as Mr. Haase says he 09:55:24 25 tells doctors to do when a patient has an anxious -- 396 09:55:27 1 A. I never would have started him out on a full dose. I 09:55:30 2 would have given him a half dose and I would have said, "Now 09:55:34 3 I want to hear from you by phone in the next day or two about 09:55:39 4 how you're feeling and in the meantime I want you to start 09:55:43 5 taking something for your anxiety. Start taking Ativan, 09:55:47 6 lorazepam. Take some benzodiazepine. Let's see if we can't 09:55:52 7 quiet the anxious side down." 09:55:54 8 Q. Dr. Maltsberger, you said a good practitioner would know 09:55:59 9 that. Are you referring to good psychiatrists such as 09:56:01 10 yourself? 09:56:02 11 A. Yes. 09:56:03 12 Q. How about people not trained in mental health? Would they 09:56:06 13 have any reason or way to know if these people don't give 09:56:10 14 them warnings like the one you drafted? 09:56:12 15 A. I don't see how Dr. Patel could be expected to know it. I 09:56:15 16 know it because, as I was joking, I've been in psychiatric 09:56:21 17 hospitals for 40 years and I know about these states and I 09:56:23 18 know about these drugs and I don't have to rely on the 09:56:27 19 product insert information to know a lot more about the SSRIs 09:56:34 20 than the pharmaceutical houses put out. 09:56:35 21 But people like Dr. Patel, they're not psychiatrists, 09:56:37 22 they don't see large numbers of psychiatric patients. They 09:56:41 23 pretty much have to rely on what they're told by the 09:56:44 24 pharmaceutical companies. 09:56:46 25 Q. Okay. Now, you said you would have given him something 397 09:56:50 1 like Ativan, a benzodiazepine. Why doesn't the Ambien that 09:56:57 2 Dr. Patel gave him -- why wasn't that adequate for that 09:57:00 3 purpose? 09:57:02 4 A. Well, Ambien could be called a sedative but more properly 09:57:06 5 is should be called a hypnotic drug. It is a drug to put you 09:57:09 6 to sleep. 09:57:10 7 Now, there was nothing wrong with giving him some 09:57:13 8 Ambien, but there's one thing about Ambien, it does have the 09:57:18 9 quality or the capacity to quiet down anxiety the way that 09:57:22 10 benzodiazepines do. It would make him sleepy, yes, so we 09:57:28 11 would hope, but there's nothing about Ambien that's going to 09:57:33 12 quiet down somebody who is in a state of turmoil, 09:57:36 13 restlessness and agitation. It is not supposed to be 09:57:40 14 prescribed for that and it isn't prescribed for that. It 09:57:43 15 wouldn't work for that. 09:57:45 16 Q. Do you fault Dr. Patel in any way for the deaths of the 09:57:53 17 Schell and Tobin family members? 09:57:55 18 A. I think that Dr. Patel was uninformed, but that it wasn't 09:57:59 19 his fault. And I don't fault him. 09:58:03 20 Q. Now, in your report you also mentioned the possibility 09:58:06 21 that Ambien can itself cause psychosis or, you know, 09:58:13 22 something else horrible. I forget the exact words you used. 09:58:19 23 Did you consider the possibility that in this case 09:58:20 24 Ambien could have been a culprit? 09:58:22 25 A. Yes, I wanted to be fair, and I went and I looked it up 398 09:58:26 1 and I thought about it. 09:58:28 2 And in the product information for Ambien there is a 09:58:33 3 statement that it can cause confusion and agitation and 09:58:38 4 hallucinations and psychosis. 09:58:43 5 But my experience with drugs like that is that that 09:58:46 6 happens when patients take overdoses, when they really get so 09:58:50 7 drugged up on it that they get, well, delirious. And there's 09:58:56 8 no indication that Mr. Schell took any kind of large 09:59:00 9 overdose. He didn't take any overdose at all. There was 09:59:06 10 Ambien found in his body at the time of autopsy and it was 09:59:09 11 appropriate to his having taken the amount of Ambien that had 09:59:13 12 been prescribed. 09:59:16 13 Q. Dr. Maltsberger, your report also mentions the fact that 09:59:21 14 two of the family members, the only two people who are alive 09:59:25 15 that had any contact with Don Schell himself while he was 09:59:29 16 under the influence of Paxil, recall two different things. 09:59:34 17 His mother-in-law, Flo, recalled when she talked to 09:59:38 18 him his voice was -- I think the night after he got the first 09:59:43 19 pill his voice was quivering to the point almost she couldn't 09:59:49 20 recognize him, and his son-in-law Tim testified that when he 09:59:53 21 talked to him the night before these deaths that he was 09:59:56 22 very -- I forget your word -- very abrupt with him, out of 10:00:00 23 character abrupt. 10:00:01 24 A. Yes. With respect to the telephone exchange that he had 10:00:04 25 with Tim Tobin, Tim was accustomed when he would call his 399 10:00:11 1 father-in-law's home that there would be some of the usual 10:00:15 2 things that people do over the phone like, "Hi, how you 10:00:19 3 doing? How are you feeling? Nice day we're having. Could I 10:00:24 4 please speak to my wife?" 10:00:27 5 This time it wasn't like that and Tim noticed that 10:00:30 6 his father-in-law was abrupt and, recognizing Tim, he said, 10:00:36 7 "Oh, just a minute. I will get Deb." 10:00:39 8 It seems to be a minor manner but it is consistent 10:00:43 9 with his being upset and anxious. 10:00:45 10 And in the matter of his speaking to his wife's 10:00:50 11 mother, it is a little unclear to me when they talked. They 10:00:57 12 appear to have talked on the same day that he -- that Don 10:01:03 13 Schell visited Dr. Patel. I can't tell whether he had taken 10:01:11 14 any of the Paxil before he spoke to his mother-in-law or not, 10:01:20 15 but she testifies that when she did talk to him he seemed 10:01:25 16 quite upset and very anxious and not at all himself. 10:01:29 17 Q. All right. When patients come in to doctors, whether 10:01:34 18 they're psychiatrists or any other kind of doctor, is there a 10:01:38 19 process called the taking of a history? 10:01:42 20 A. Yes. 10:01:42 21 Q. And would you just explain to the jury what the taking of 10:01:45 22 a history is and what are the representative obligations of 10:01:49 23 the doctor on the one hand, the patient on the other, with 10:01:52 24 respect to that process? 10:01:55 25 A. One presumes that the doctor is sufficiently trained and 400 10:02:02 1 sufficiently informed so that he knows something about the 10:02:06 2 general possible spectrum of what might be and the illness 10:02:22 3 that the patient presents, in this case a depression. 10:02:22 4 Now, a good psychiatrist would begin by saying to 10:02:23 5 somebody like Don Schell, "Now when was the last time you 10:02:26 6 felt perfectly okay? And what have you noticed about 10:02:30 7 yourself since that time that seems to be out of order?" 10:02:37 8 And then one would begin to get a history of 10:02:40 9 depression. One would ask him about all of the components 10:02:46 10 that we recognize as part of depression. And I would say, 10:02:52 11 "Well, now, Mr. Schell, how has your mood been?" And I would 10:02:59 12 get him to describe his mood. And I would find out if he was 10:03:02 13 able to enjoy the usual things in his life that were fun, if 10:03:06 14 he liked to look at his favorite TV show or whatever -- I 10:03:12 15 think he liked to fish, and I would find if he was off his 10:03:17 16 usual enjoyments. 10:03:19 17 And then I would want to know about his sleep and I 10:03:22 18 would want to know about his self-respect. And I would 10:03:26 19 inquire about whether he was blaming himself in unreasonable 10:03:30 20 ways, if he seemed to have any unreasonable guilty feelings. 10:03:35 21 Q. Dr. Maltsberger, let me stop you for a minute. As you're 10:03:38 22 doing that I'm seeing you gesture and you're like ticking off 10:03:42 23 things on fingers. 10:03:43 24 Are you sort of going down a checklist of diagnostic 10:03:48 25 symptoms or criteria for depression as you're doing this? 401 10:03:51 1 A. Yes. 10:03:52 2 Q. And how many are there? 10:03:55 3 A. There's six or eight. 10:03:56 4 Q. And are those diagnostic criteria for depression listed in 10:04:01 5 the PDR for Paxil? Is that something that somebody is 10:04:05 6 supposed to go down and check off those things before they 10:04:08 7 prescribe Paxil? 10:04:09 8 A. I think they're not listed in the product insert 10:04:12 9 information. Depression is mentioned, but not all of these 10:04:16 10 things. 10:04:17 11 Q. Do they come right out of a book called the DSM-IV? 10:04:21 12 A. Yes. 10:04:22 13 Q. And I think we've got one right here. Is this the DSM-IV? 10:04:28 14 A. That's right. 10:04:29 15 Q. What is this book? 10:04:30 16 A. That book is published by the American Psychiatric 10:04:33 17 Association and it is essentially a -- it contains the 10:04:38 18 definitions of different -- of all the different psychiatric 10:04:42 19 disorders according to the symptoms that you may expect to 10:04:46 20 find. 10:04:47 21 So it essentially is a definition of how we 10:04:50 22 understand depression. 10:04:55 23 Q. And is it useful in diagnosing conditions like depression? 10:04:58 24 A. Yes. 10:04:58 25 Q. Well, in this history taking -- 402 10:05:00 1 A. It ain't perfect, but it is better than nothing. 10:05:03 2 Q. Okay. You and I have had debates about the DSM-IV and I 10:05:08 3 don't know that that's appropriate for today. 10:05:11 4 Let me ask you this: As you describe that process to 10:05:14 5 us, it sounds like the doctor is the one that has to elicit 10:05:23 6 the information that's relevant to each of these categories. 10:05:26 7 Is that true? 10:05:27 8 A. That's right. 10:05:27 9 Q. Do you expect the patient to know when they come in and 10:05:29 10 start to give you a history what is significant to the 10:05:33 11 doctor? Is the patient supposed to look this up and say, 10:05:37 12 "Okay, I think I'm depressed so I need to be sure and tell 10:05:40 13 the doctor about these eight different criteria"? 10:05:45 14 A. Don't be ridiculous. Of course the patients aren't going 10:05:47 15 to know it. If they knew all about that, they wouldn't need 10:05:55 16 the doctor. 10:05:56 17 Q. You know and I think we all know why I say that. You 10:05:59 18 heard Mr. Preuss say in his opening that Don Schell withheld 10:06:05 19 information from Dr. Patel? 10:06:06 20 A. I have no reason to believe that whatsoever. 10:06:08 21 Q. Did Dr. Patel do a good job in taking a history? 10:06:11 22 A. I believe he did. I think it was an unusually good job of 10:06:17 23 history taking considering he's not a psychiatrist. 10:06:20 24 Q. Is there anything you know -- 10:06:21 25 A. There's nothing in Dr. Patel's notes that suggest that he 403 10:06:24 1 thinks Don Schell was withholding information. And 10:06:29 2 Dr. Suhany, one of his other doctors, in his deposition said 10:06:33 3 that he felt that he was a fully compliant and reliable 10:06:36 4 patient. 10:06:37 5 Q. Does that word "compliant patient" have a special meaning 10:06:42 6 to doctors? 10:06:42 7 A. It means that the patient is cooperating and that he will 10:06:45 8 cooperate in giving a history, answering the questions. He 10:06:49 9 will tell you the truth. He's not going to be telling you a 10:06:52 10 lot of lies -- although perhaps no patient is ever entirely 10:06:55 11 honest, especially with a new doctor -- and that he's going 10:06:59 12 to cooperate in the treatment that is recommended. 10:07:04 13 Q. Dr. Maltsberger, you mentioned Dr. Suhany and so I want to 10:07:08 14 move to that in a minute. But while we're still on the 10:07:11 15 subject of the history that was taken by Dr. Patel, did you 10:07:16 16 see in the history where Don Schell said, "I have taken 10:07:23 17 Prozac and," quote, "it didn't help"? Did you see that in 10:07:34 18 the history? 10:07:34 19 A. Yes, I did. 10:07:35 20 Q. Knowing what you know about these drugs, if a man came in 10:07:40 21 and was obviously anxious or related a history of being 10:07:43 22 anxious and a past history of being treated with Prozac and 10:07:46 23 it didn't help, would that send off any alarms or bells in 10:07:51 24 your head? 10:07:52 25 A. Oh, sure. I can tell you what I would ask. 404 10:07:54 1 Q. What? 10:07:55 2 A. I would say, "Well, what was there about it you didn't 10:07:58 3 like?" I would try to get him to put it in his own words: 10:08:02 4 "What didn't you like about it?" I would hear what he had to 10:08:05 5 say and I would follow it up. 10:08:07 6 I would say, "Did it make you very nervous? Did it 10:08:10 7 make you very anxious? Did it interfere with your sleep? 10:08:13 8 Did it make you feel speeded up?" 10:08:16 9 Q. Dr. Maltsberger, would you ask him -- would you draw out 10:08:20 10 from the patient, knowing what you know about it, whether the 10:08:22 11 prior experience on Prozac put him in turmoil or frenzy? 10:08:27 12 A. That's exactly what I would be reaching for, or whether it 10:08:30 13 put him into mild states of turmoil and frenzy. 10:08:34 14 Q. Why would you do that? 10:08:36 15 A. Because if it had I wouldn't want to give him another drug 10:08:40 16 like it for fear that I might really drive him into a 10:08:44 17 big-time turmoil or frenzy. 10:08:48 18 Q. Now, how is a nonpsychiatrist like Dr. Patel supposed to 10:08:52 19 know when the patient says, "I had Prozac and it didn't 10:08:57 20 help" -- how is he supposed to know to draw out from the 10:09:02 21 patient whether he's been in turmoil or frenzy on Prozac? 10:09:07 22 MR. PREUSS: Objection, Your Honor, speculation, no 10:09:09 23 foundation. 10:09:11 24 THE COURT: The witness may answer the question if he 10:09:13 25 knows. 405 10:09:15 1 A. No doctor could ask those questions unless he had been 10:09:18 2 properly educated. 10:09:20 3 Q. (BY MR. VICKERY) How do you get properly educated? 10:09:22 4 A. General practitioners and internists prescribing Paxil and 10:09:26 5 other drugs like it rely heavily on what they're told by the 10:09:30 6 pharmaceutical representatives and by what is printed in the 10:09:34 7 product information. 10:09:37 8 Q. All right. Now, let me follow up on that one because, you 10:09:40 9 know, we know what Dr. Patel has said about drug reps, but 10:09:45 10 the product information, the product insert, is that 10:09:51 11 information that's published in a book called the PDR, the 10:09:56 12 Physician's Desk Reference? 10:09:57 13 A. Yes, that's the prescribing information. 10:09:58 14 Q. Is that information that's provided to the publisher of 10:10:02 15 that book by SmithKline Beecham? 10:10:05 16 A. That is my understanding. 10:10:11 17 Q. You said if you were aware that he was in turmoil or 10:10:20 18 frenzy on the Prozac -- 10:10:22 19 A. Or approaching it. 10:10:23 20 Q. -- or approaching it, then you wouldn't give him another 10:10:27 21 drug in that class. Can you kind of use some analogy to 10:10:31 22 explain to us why you wouldn't? 10:10:33 23 A. Well, I mean, if one drug has been agitating and exciting 10:10:40 24 to the patient, one would be very suspicious that he might 10:10:44 25 have a similar response to other drugs in the same family. 406 10:10:50 1 Prozac and Paxil are first cousins. It is sort of 10:10:54 2 like -- 10:10:55 3 MR. PREUSS: Objection, Your Honor, no foundation. 10:10:57 4 THE COURT: Sustained. 10:11:00 5 A. Let's suppose that I was your GP and you came in and you 10:11:03 6 told me that you weren't feeling so well, that you had had 10:11:06 7 some indigestion and I took a history about diet and I 10:11:11 8 learned that you had a terrible allergy to lobster and you 10:11:15 9 had some lobster a while back and it made you so sick you 10:11:19 10 nearly had to go to the hospital. 10:11:22 11 I would tell you, "You better watch out for other 10:11:25 12 shellfish." 10:11:28 13 Q. (BY MR. VICKERY) Can't have shrimp? 10:11:32 14 A. "Don't eat shrimp, or if you do, eat only a tiny piece and 10:11:36 15 wait an hour to see if it disagrees with you." 10:12:03 16 Q. Your report also talks about spontaneous psychosis. Let's 10:12:08 17 put in some background. Did you in your own mind sort of 10:12:11 18 list all of the things that could be a culprit? 10:12:13 19 A. More or less I did. I tried to think about how could this 10:12:18 20 extraordinary frenzy that this man developed on the 12th or 10:12:26 21 the 13th of February -- how could this be explained. 10:12:31 22 Q. And let me follow up on that. Why do you say it was an 10:12:34 23 extraordinary frenzy? What is there about the circumstances 10:12:38 24 of these deaths that leads you to say that? 10:12:40 25 A. Well, I mean, this guy was not cold-bloodedly planning out 407 10:12:48 1 and killing these people. He was, I would infer -- 10:12:55 2 MR. PREUSS: Your Honor, objection. This is total 10:12:59 3 speculation. 10:13:00 4 THE COURT: Sustained. 10:13:01 5 Q. (BY MR. VICKERY) Dr. Maltsberger, you were here when I 10:13:04 6 read the stipulated facts at the start of this trial, were 10:13:06 7 you not? 10:13:07 8 A. Yes, I was. 10:13:08 9 Q. And did you hear both sides stipulated and agreed that 10:13:14 10 there were multiple gunshot wounds to each of the victims? 10:13:17 11 A. I did. 10:13:18 12 Q. Did you hear that each of the three women were shot with 10:13:21 13 two different guns, a small-caliber gun and a large-caliber 10:13:26 14 gun? 10:13:26 15 A. Yes. 10:13:27 16 Q. Is that significant to you in any way as you assess what 10:13:30 17 happened to this man? 10:13:32 18 A. Any man, any person who is going to shoot a little baby 10:13:36 19 multiple times, not just with one but with two guns, is in 10:13:43 20 some kind of a frenzy. 10:13:46 21 MR. PREUSS: Objection, Your Honor, total 10:13:47 22 speculation, move to strike. 10:13:49 23 MR. VICKERY: Your Honor, that's not total 10:13:50 24 speculation. That's the very kind of thing this man is 10:13:52 25 trained to do. That's the whole psychological autopsy 408 10:13:56 1 process. It is the stuff that he's done for years. 10:14:00 2 THE COURT: I will let it stand. 10:14:04 3 Q. (BY MR. VICKERY) Dr. Maltsberger, we started down this 10:14:07 4 road talking about considering all of the things that could 10:14:10 5 cause this behavior, and in your report you mentioned 10:14:14 6 spontaneous psychosis. 10:14:17 7 Would you just explain what that is and why you 10:14:19 8 thought about it, why you ultimately determined that that's 10:14:23 9 not what we have here? 10:14:26 10 A. Well, we have to entertain the possibility that if Don 10:14:31 11 Schell hadn't been taking anything at all, if he had just 10:14:35 12 been going along and had never been exposed to any SSRI drug, 10:14:41 13 whether this would have happened anyway. 10:14:46 14 And I can tell you that in a 60-year-old person who 10:14:53 15 has no previous history of anything frenzied like this, never 10:14:59 16 before in their lives, if somebody 60 years old or over gets 10:15:05 17 into such a state, there is a physical factor at work and you 10:15:12 18 have to assume that that's the case until you prove 10:15:14 19 otherwise. 10:15:15 20 Q. You mean something biological, something wrong with their 10:15:18 21 body? 10:15:19 22 A. Something is going on in their body to drive them wild. 10:15:24 23 This man never had a psychosis before. I mean, the 10:15:27 24 kind of things like manic-depressive disease, the kinds of 10:15:32 25 illnesses that put people into hospitals, these things come 409 10:15:35 1 on in youth. 10:15:37 2 This man had never had anything approaching this 10:15:41 3 state in his whole life. If he had had a history of repeated 10:15:46 4 breakdowns and hearing voices or delusions and had had to go 10:15:52 5 to the hospital multiple times because he would get 10:15:54 6 assaultive, it would be one thing. 10:15:57 7 There is not one whisper in this man's history of 10:16:01 8 such a thing. Suddenly, a 60-year-old man gets into such a 10:16:06 9 state. The presumption must be that there is some biological 10:16:12 10 physical factor at work. 10:16:14 11 Now, we know he didn't have a brain tumor because 10:16:17 12 there was an autopsy. There is no evidence that he had a 10:16:20 13 raging fever. There is no evidence whatsoever that he was 10:16:24 14 raging drunk. There's only one thing, Paxil; Paxil 10:16:30 15 superimposed on an anxious, agitated depression. 10:16:36 16 Q. Is Paxil a psychoactive drug? 10:16:38 17 A. It certainly is. 10:16:39 18 Q. What does that mean? 10:16:41 19 A. It means that it acts on the central nervous system, has 10:16:44 20 effects on the central nervous system that alter subjective 10:16:49 21 states and may alter behavior. 10:16:52 22 Q. Okay. There's one other area I want to cover with you and 10:17:01 23 it relates to a couple items you mentioned in your report. 10:17:29 24 Let me ask you a follow-up question. You said there 10:17:32 25 was no evidence of a brain tumor or anything on the autopsy. 410 10:17:34 1 Was there evidence that he had Paxil in his blood in the 10:17:37 2 autopsy? 10:17:38 3 A. Yes, there was. There was evidence that he had Paxil in 10:17:41 4 his body at autopsy. 10:17:43 5 Q. Okay. You mentioned an article in your report by Donovan, 10:17:57 6 and the title of the article is Deliberate Self-Harm and 10:18:05 7 Antidepressant Drugs. 10:18:06 8 Now, you've been studying suicide for 41 years. Does 10:18:10 9 deliberate self-harm get your attention as a suicidologist? 10:18:16 10 A. Sure. It means -- 10:18:18 11 MR. PREUSS: I object to any testimony on this 10:18:20 12 article. By stipulation he's not for general causation. It 10:18:24 13 is a general causation article. 10:18:26 14 THE COURT: What's the purpose of the proof? 10:18:27 15 MR. VICKERY: The purpose of the proof is it relates 10:18:28 16 to his specific causation opinion. It is contained -- I can 10:18:32 17 show the Court, it is right in his Rule 26 report that he 10:18:35 18 relies on this for his opinion. 10:18:38 19 THE COURT: Overruled. 10:18:39 20 Q. (BY MR. VICKERY) Investigation of a possible link: Now, 10:18:45 21 were you here -- and I know these video depositions aren't 10:18:48 22 the most scintillating thing in the world, but were you here 10:18:52 23 when the video deposition of Dr. Yamada was being played? 10:18:56 24 A. Yes, I suffered through it. 10:18:57 25 Q. I think you slept through it. I'm sorry, I didn't mean 411 10:19:00 1 that on the record. 10:19:01 2 Dr. Maltsberger, in all seriousness, did you hear 10:19:06 3 Dr. Yamada when he was asked to read the acknowledgments and 10:19:17 4 the fact that this study was funded in part by SmithKline 10:19:17 5 Beecham? 10:19:17 6 A. Yes, I did. 10:19:17 7 Q. What significance to you is it that SmithKline Beecham 10:19:20 8 itself funded this study? 10:19:23 9 A. Well, I suppose they wouldn't pay out good money -- 10:19:26 10 MR. PREUSS: Objection, Your Honor, speculation. 10:19:29 11 THE COURT: Yes, how does this witness know this? 10:19:31 12 Let's go on. 10:19:32 13 MR. VICKERY: That's a valid objection. 10:19:51 14 Q. (BY MR. VICKERY) In Table 2 of this article there is a 10:19:51 15 listing -- I'm looking at the wrong table. 10:20:00 16 A. That's the overdose table. 10:20:01 17 Q. Let me put up Table 3. Table 3 of this article lists 10:20:16 18 relative risks of self harm on various drugs, right? 10:20:21 19 A. Yes. 10:20:21 20 Q. The lowest we see is amitriptyline at 1.0 and for 10:20:27 21 paroxetine, or Paxil, we see it is 4.0. 10:20:32 22 A. That's right. 10:20:33 23 Q. What is the significance of that to your opinion about Don 10:20:35 24 Schell's suicide in this case? 10:20:37 25 MR. PREUSS: Objection, Your Honor, no foundation. 412 10:20:38 1 It calls for testimony beyond his background and experience 10:20:41 2 in epidemiology. 10:20:45 3 THE COURT: Oh, overruled. I think that the witness 10:20:47 4 can comment on this. 10:20:50 5 A. What this shows is those who were prescribed Paxil were 10:21:00 6 four times more likely to hurt themselves on purpose than is 10:21:03 7 the case of amitriptyline which is an old-fashioned 10:21:10 8 antidepressant. 10:21:22 9 MR. VICKERY: I seem to have misplaced Dr. Cole's 10:21:26 10 declaration. 10:21:27 11 Q. (BY MR. VICKERY) But in your report you mentioned one of 10:21:31 12 the things you relied on was a declaration from Dr. Jonathan 10:21:44 13 Cole. Why did you find that to be helpful information in 10:21:47 14 arriving at your opinions in this case? 10:21:49 15 A. Dr. Cole makes it very plain that it is not necessary that 10:21:56 16 there should be double-blind, randomized, placebo-controlled 10:22:01 17 trials in order to draw clinical conclusions about the 10:22:05 18 comparative safety of these drugs. 10:22:08 19 Q. So what? Is there something about the fact that Jonathan 10:22:11 20 Cole says it that makes it more likely so in your judgment? 10:22:15 21 A. Well, I know Dr. Cole and in some respect he's even been 10:22:19 22 my teacher. He is one of the most respected 10:22:26 23 psychopharmacology experts in the world. He has been 10:22:31 24 described as the father of modern psychopharmacology. 10:22:33 25 And he is very clear in his own thinking that you 413 10:22:38 1 don't have to have pristine, randomized placebo trials in 10:22:44 2 order to draw reasonable clinical inferences about the safety 10:22:48 3 or lack thereof of drugs. 10:22:56 4 Q. Dr. Maltsberger, in your judgment if Dr. Patel had been 10:23:00 5 given a warning like the one you drafted or something similar 10:23:03 6 to it, would he be alive today? 10:23:09 7 MR. PREUSS: Objection, Your Honor, no foundation, 10:23:10 8 calling for speculation as to how Dr. Patel would have acted 10:23:13 9 with that information. 10:23:14 10 MR. VICKERY: I can show the Court right where it is 10:23:16 11 in his report. 10:23:20 12 THE COURT: Do so, please. 10:23:42 13 THE WITNESS: It is in the one dated the 15th of 10:23:44 14 March. It is in the supplementary -- 10:23:48 15 MR. VICKERY: Yes, I found it there. It is the final 10:24:02 16 paragraph of the supplemental report of March 15th, Your 10:24:09 17 Honor. Be glad to read it, if you want me to. 10:24:12 18 MR. PREUSS: I don't doubt it is in the report but it 10:24:15 19 is still speculation. 10:24:16 20 THE COURT: What's the -- this witness' ability to 10:24:22 21 make that opinion? 10:24:23 22 MR. VICKERY: Just 41 years of experience as a 10:24:25 23 doctor, Your Honor. I think it is a reasonable professional 10:24:30 24 opinion of what would be the consequence of a proper and 10:24:32 25 adequate legal warning. 414 10:24:38 1 MR. PREUSS: Your Honor, it calls for what Dr. Patel 10:24:41 2 is going to do with whatever new information that this doctor 10:24:43 3 feels is appropriate and that calls for speculation. He 10:24:46 4 can't testify to that. 10:24:49 5 MR. VICKERY: We will have the other side of the coin 10:24:51 6 later from -- we have exactly the same kind of statements in 10:24:55 7 the Rule 26 reports from the defendants, except they just 10:24:58 8 have the opposite opinion. 10:25:02 9 THE COURT: I will let the witness answer the 10:25:03 10 question. You ask the question again and he may answer the 10:25:05 11 question. 10:25:07 12 Q. (BY MR. VICKERY) Dr. Maltsberger, if Dr. Patel had been 10:25:12 13 provided -- 10:25:14 14 THE COURT: Ask it like you did the last time. 10:25:16 15 MR. VICKERY: I don't know I can say it exactly the 10:25:19 16 same. 10:25:19 17 THE COURT: I'll ask the reporter to read it back. 10:25:37 18 MR. VICKERY: Would you read it back, please, ma'am? 10:25:40 19 (Previous question read.) 10:25:43 20 MR. PREUSS: I renew my objection. 10:25:45 21 THE WITNESS: I believe Dr. Patel is alive today. I 10:25:47 22 believe you meant to ask me about Don Schell. 10:25:52 23 MR. VICKERY: It was a misplaced modifier. 10:25:53 24 Q. (BY MR. VICKERY) If Dr. Patel had been given the warning, 10:25:56 25 would this man and his wife and child be alive today? 415 10:26:02 1 A. I think there's a very good chance had he paid attention 10:26:04 2 to it, and I have no reason to doubt he would have paid 10:26:07 3 attention to it -- 10:26:08 4 THE COURT: This goes way beyond the question. He 10:26:11 5 answered the question. 10:26:15 6 MR. VICKERY: I pass the witness, Your Honor. 10:26:17 7 THE COURT: Thank you very much. 8 CROSS-EXAMINATION 10:26:20 9 Q. (BY MR. PREUSS) Good morning, Doctor. 10:26:37 10 A. Good morning, Mr. Preuss. 10:26:45 11 Q. Now, as I understand your background, sir, your primary 10:26:47 12 method of treating patients that you see is psychotherapy; is 10:26:55 13 that correct? 10:26:55 14 A. No, I practice general psychiatry which includes 10:26:55 15 psychotherapy, but I also prescribe psychoactive drugs. 10:27:01 16 Q. Well, do you use psychotherapy more with your patients 10:27:06 17 than you do treatment with drugs? 10:27:08 18 A. Some of my patients are treated with psychotherapy only. 10:27:12 19 About half of them are given prescriptions for drugs which 10:27:20 20 they take while I give them psychotherapy. And a very small 10:27:24 21 proportion, typically people who have had a period of 10:27:31 22 psychotherapy and are doing well, may return only about once 10:27:35 23 a month for renewal of their prescriptions. 10:27:39 24 Q. So some are pure psychotherapy patients, some are 10:27:42 25 combination with meds, medications, and some are just 416 10:27:46 1 medications only; is that correct? 10:27:49 2 A. Fair enough. 10:27:50 3 Q. Is that true with respect to your treatment of patients 10:27:53 4 for depression, sir? 10:27:54 5 A. Oh, yes. 10:27:55 6 Q. So that same -- how would you divide a 100 percent figure 10:27:59 7 of your depressed patients that you are treating in terms of 10:28:06 8 sole psychotherapy and medication combination, please? 10:28:12 9 A. Most of the depressed patients in my practice will get a 10:28:15 10 prescription as well as psychotherapy. Then as time goes by, 10:28:21 11 they're feeling better and we've addressed what can be 10:28:24 12 addressed in psychotherapy, they very often elect to continue 10:28:27 13 to take an antidepressant. So they may come in once a month 10:28:31 14 or sometimes even less often for a session and a renewal of 10:28:36 15 the prescription. 10:28:37 16 Q. And what antidepressants do you use for medication? 10:28:42 17 A. The one that I most commonly prescribe is Zoloft which is 10:28:46 18 an SSRI. 10:28:48 19 Q. I see. What percentage of those patients you have on 10:28:54 20 medication use Zoloft? 10:28:59 21 A. Probably half of them. 10:29:02 22 Q. Now, you don't have a degree in epidemiology, do you, sir? 10:29:06 23 A. Certainly not. 10:29:07 24 Q. And you don't hold yourself out as an epidemiologist? 10:29:10 25 A. Oh, no. 417 10:29:14 1 Q. And you don't hold yourself out as an expert in 10:29:16 2 determining the cause of a particular adverse medical event, 10:29:20 3 do you? 10:29:22 4 A. Well, I have had a lot of experience in psychological 10:29:27 5 autopsy work, but I am not a drug expert in terms of 10:29:34 6 understanding all about psychopharmacology and 10:29:38 7 psychoneuropharmacology and the more arcane details of drugs. 10:29:51 8 Q. As to the methodology to establish that a drug may or may 10:29:54 9 not cause a particular adverse effect, you're not an expert 10:29:58 10 in that area, are you? 10:29:59 11 A. No, I'm just an ordinary doctor. 10:30:02 12 Q. And you're not a biostatistician or a statistician? 10:30:07 13 A. Nope. 10:30:08 14 Q. And you don't consider yourself an expert in pharmacology, 10:30:10 15 do you? 10:30:12 16 A. No. 10:30:16 17 Q. And you have had no training in regulatory matters with 10:30:18 18 the FDA, have you? 10:30:19 19 A. None whatever. 10:30:20 20 Q. And you've never drafted warnings for package inserts that 10:30:26 21 were submitted to the FDA, have you? 10:30:28 22 A. That's correct, unless SmithKline Beecham has decided to 10:30:30 23 send off my warning without my knowing it. 10:30:36 24 Q. And you've never submitted your warning to the FDA, have 10:30:41 25 you? 418 10:30:41 1 A. No, sir. 10:30:43 2 Q. You've never submitted any warning to the FDA, have you? 10:30:47 3 A. No. 10:30:48 4 Q. And you've never studied the regulations that govern the 10:30:51 5 warnings that pharmaceutical companies give to their 10:30:54 6 physicians that prescribe the pills, right? 10:30:56 7 A. I have never studied those regulations. 10:31:00 8 Q. And you've never consulted with a pharmaceutical company 10:31:02 9 on the safety and efficacy of their drugs, have you? 10:31:08 10 A. Yes, I have, on a couple of occasions called up the 10:31:13 11 pharmaceutical house and asked them when I was dealing with a 10:31:16 12 patient who reported a certain adverse event -- I've called 10:31:20 13 them and asked them if they have any comment about it. 10:31:23 14 Q. So if you had an experience with a drug, you would call 10:31:25 15 in. 10:31:25 16 Have you ever been hired by a pharmaceutical company 10:31:28 17 to advise them concerning safety and efficacy of their drug 10:31:31 18 or the drug labeling? 10:31:33 19 A. Oh, no. 10:31:35 20 Q. And you don't hold yourself out as an expert in the 10:31:38 21 labeling of pharmaceutical products, do you? 10:31:40 22 A. No. 10:31:44 23 Q. Nor do you hold yourself out as an expert in drug safety, 10:31:47 24 do you? 10:31:51 25 A. It is hard to answer that. You know, I think an ordinary 419 10:31:56 1 physician has to have a reasonable expertise in understanding 10:32:01 2 the risks and the benefits of what he prescribes, and I hope 10:32:04 3 that I'm well informed, maybe even expert to the best that I 10:32:12 4 can be about the drugs that I prescribe for my patients. 10:32:15 5 Now, I'm not an expert in terms of giving 10:32:19 6 pharmaceutical houses advice or in conducting research trials 10:32:24 7 or any of these things that I rather imagine you have in 10:32:29 8 mind, but maybe you'll go ahead. 10:32:32 9 Q. With respect to adverse reaction reports that you just 10:32:35 10 mentioned -- in other words, you had an experience with a 10:32:38 11 drug and you called the company -- you've never done that 10:32:41 12 with respect to an SSRI, have you? 10:32:51 13 A. I have. 10:32:51 14 Q. When did you do that, sir? 10:32:51 15 A. Some years ago I was giving a patient Zoloft and she 10:32:55 16 complained that it was making her hair fall out. It seemed 10:32:58 17 to me that that was a strange matter, so I called up the 10:33:01 18 company and asked them. 10:33:02 19 Q. I would like you to look at page -- your deposition, sir. 10:33:07 20 Let me get a copy for you. Would you turn to page 27, 10:34:05 21 please, sir? 10:34:05 22 A. I have it. 10:34:05 23 Q. And line 16 through line 24. 10:34:05 24 A. Yes. 10:34:08 25 MR. VICKERY: Excuse me, Your Honor. To put this in 420 10:34:08 1 context I would ask that they read from line 2. 10:34:12 2 THE COURT: Well, I think I'm going to go back to the 10:34:14 3 old way we do this and let you take that up on redirect. 10:34:18 4 MR. VICKERY: Okay. I will certainly do that. 10:34:25 5 MR. PREUSS: I don't have any objection if you would 10:34:27 6 like it. 10:34:27 7 THE COURT: If you wish to, you may. 10:34:29 8 Q. (BY MR. PREUSS) "Question: Have you ever consulted with 10:34:31 9 the FDA or anyone else in regard to pharmaceutical products 10:34:34 10 other than in litigation? 10:34:36 11 "Answer: Over the years I may have reported a 10:34:37 12 side effect a very few times to a pharmaceutical company. I 10:34:41 13 think never to the FDA. I had a patient one time who swore 10:34:44 14 that her hair was falling out and she was taking Zoloft, so I 10:34:48 15 inquired about it. We filed a report. 10:34:50 16 "Question: Is that the only time you've ever filed a 10:34:52 17 report regarding an SSRI? 10:34:53 18 "To the best of my memory. 10:34:55 19 "And you have never ever reported to the FDA about 10:34:57 20 any adverse reaction the patient had on an SSRI; is that 21 correct? 10:35:03 22 "That's correct. 10:35:04 23 "Have you ever reported to the FDA an adverse 10:35:07 24 reaction a patient had on any drug? 10:35:09 25 "Not to my memory, no, I can't remember ever doing 421 10:35:11 1 it." 10:35:13 2 A. Yes, I will stand by that testimony. 10:35:34 3 Q. You mentioned a couple experiences you had with patients 10:35:36 4 on Paxil. In fact, you mentioned two. Are those the only 10:35:40 5 two you've ever prescribed Paxil for, sir? 10:35:42 6 A. I hesitate to say. I've treated a lot of patients but 10:35:45 7 those are the only two I can recall this morning. 10:35:47 8 Q. At your deposition you indicated that you had only 10:35:49 9 prescribed Paxil two or three times? 10:35:52 10 A. I think that's right. 10:35:53 11 Q. And you don't have any current patients for whom you're 10:35:57 12 prescribing Paxil; is that right? 10:35:59 13 A. That's right. 10:36:00 14 Q. And none of your Paxil patients have committed suicide or 10:36:04 15 homicide, have they? 10:36:06 16 A. None of my patients whatever have ever done either. 10:36:09 17 Q. By the way, is there a risk of suicide with patients that 10:36:13 18 are just being treated by psychoanalysis, psychotherapy? 10:36:28 19 A. Well, I mean, sure, people can commit suicide no matter 10:36:32 20 what treatment they're getting. 10:36:34 21 Q. Or what treatment they're not getting? 10:36:36 22 A. Sure. 10:36:36 23 Q. And depressed patients are always at a risk of suicide, 10:36:39 24 are they not? 10:36:42 25 A. That's why we have to be carefully trained to know what 422 10:36:45 1 we're doing. Sure they're at risk. 10:36:48 2 Q. You have never done any reading on the pharmacokinetics or 10:36:54 3 pharmacodynamics of Paxil; isn't that right, sir? 10:36:59 4 A. Only what's in the PDR. 10:37:01 5 Q. You've never done any clinical research with respect to 10:37:03 6 Paxil? 10:37:04 7 A. No, sir. 10:37:13 8 Q. And for purposes of this case you're offering no opinions 10:37:15 9 on the general causation question as to whether or not Paxil 10:37:18 10 can cause suicide or homicide or aggression, right? 10:37:22 11 A. Well, I don't know exactly what general causation means. 10:37:28 12 Q. Something other than specifically relates to Donald 10:37:32 13 Schell, sir? 10:37:33 14 A. I'm not following you, Mr. Preuss. 10:37:37 15 Q. Well, you understand that at your deposition that there 10:37:41 16 was an understanding between your -- Mr. Vickery and 10:37:45 17 ourselves that you would not be offering any testimony with 10:37:48 18 respect to the general proposition as to whether Paxil can 10:37:52 19 cause homicide and suicide or aggression? 10:37:55 20 A. Well, I know there was some colloquy between the attorneys 10:37:59 21 at that time and there was a certain amount of technical talk 10:38:02 22 that I didn't pay much attention to. 10:38:04 23 Q. All right. Now, when were you first engaged to -- by any 10:38:12 24 individual with respect to litigation involving SSRIs? 10:38:18 25 A. By Mr. Vickery last year, I believe. 423 10:38:20 1 Q. All right. And prior to that time, sir, you were -- you 10:38:25 2 had no familiarity, no personal knowledge at all with respect 10:38:28 3 to what any pharmaceutical house that manufactures an SSRI 10:38:33 4 had done by way of research or study of their products; isn't 10:38:37 5 that right? 10:38:39 6 A. Well, I for years have read the -- 10:38:44 7 Q. PDR? 10:38:45 8 A. -- PDR and I read the psychiatric journals, so I have some 10:38:50 9 general education and information. 10:38:53 10 Q. Have you ever looked at any clinical trials or any of the 10:38:56 11 supporting material for any NDA application by any 10:39:01 12 pharmaceutical company that manufactures an SSRI? 10:39:04 13 A. Specifically pertaining to NDA applications? 10:39:07 14 Q. Sure. 10:39:08 15 A. Never. 10:39:12 16 Q. And you had no knowledge before being contacted by 10:39:14 17 Mr. Vickery whether any pharmaceutical house that 10:39:19 18 manufactures an SSRI had carried out a randomized 10:39:22 19 double-blind trial to determine whether these drugs may cause 10:39:26 20 suicide, right? 10:39:27 21 A. I'm not sure when that came to my attention. Let's say 10:39:31 22 that my attention has certainly been focused on that since I 10:39:35 23 became involved with Mr. Vickery. I may have had some 10:39:38 24 appreciation of it before, but I honestly don't remember. I 10:39:42 25 have sure thought a lot more about it since I met 424 10:39:45 1 Mr. Vickery. 10:39:50 2 Q. And with respect to -- you remember the two questions read 10:39:52 3 to you with respect to Dr. Wheadon's testimony? 10:39:56 4 A. Yes. 10:39:57 5 Q. And the question was, "So just if there is a reasonable 10:40:01 6 evidence that the drug might cause this, then a warning is 10:40:04 7 appropriate, right?" Do you remember that question? 10:40:07 8 A. Yes. 10:40:10 9 Q. And if there were not reasonable evidence, then I take it 10:40:12 10 in your view a warning would not be necessary? 10:40:16 11 A. It is a clinical call, Mr. Preuss. 10:40:20 12 Q. Could I have a yes or no answer to that, please? 10:40:23 13 A. Well, would you repeat it? 10:40:26 14 Q. Yes. Again the question, so you have it in mind, "So just 10:40:30 15 if there is a reasonable evidence that the drug might cause 10:40:33 16 this, then a warning is appropriate, right?" 10:40:37 17 My question is, if there were not reasonable 10:40:39 18 evidence, you wouldn't expect that a warning should be 10:40:42 19 changed, right? 10:40:43 20 A. Well, I cannot give you a yes or no answer. I can give 10:40:46 21 you a qualified yes. You and I may not agree about what is 10:40:50 22 reasonable. 10:40:56 23 Q. Or what isn't reasonable? 10:40:59 24 A. Yes. 10:41:12 25 Q. Now, even though you don't hold yourself out as a 425 10:41:15 1 pharmacologist and by your own admission your opinions in 10:41:18 2 this area are limited, do you understand that there are 10:41:22 3 chemical differences between the various SSRI products? Is 10:41:26 4 that right? 10:41:27 5 A. Yes, I think that Paxil is a substitute for piperazine and 10:41:37 6 the others have naphtha bases. The molecules are different. 10:41:42 7 Q. And patients may respond differently to various SSRIs, 10:41:47 8 right? 10:41:48 9 A. Yes, that's right. 10:41:49 10 Q. What might work for one patient may not work for another, 10:41:53 11 right? 10:41:55 12 A. Well, you know, there are two proverbs. One of them is 10:41:59 13 one man's meat is another man's poison and the other one is 10:42:03 14 what is sauce for the goose is sauce for the gander. 10:42:07 15 Now, all of these drugs, the SSRIs, work in the same 10:42:10 16 way. They selectively inhibit the reuptake of serotonin. 10:42:14 17 Q. My question was do some patients respond better to certain 10:42:20 18 SSRIs than others? 10:42:22 19 A. Yes. 10:42:22 20 Q. And vice versa? 10:42:24 21 A. Yes. 10:42:24 22 Q. And if you were going to prescribe an SSRI, one of your 10:42:26 23 job responsibilities in treating that patient is to try to 10:42:29 24 find the best medication that fits that particular person's 10:42:33 25 makeup? 426 10:42:34 1 A. No doubt about it. 10:42:39 2 Q. Now, as I understand it, you have had some experience with 10:42:44 3 Prozac as well, right? 10:42:45 4 A. A good deal. 10:42:49 5 Q. And you believe that Prozac is more likely to produce 10:42:53 6 akathisia in a patient than other SSRIs, right? 10:42:56 7 A. I think it is very likely to. I am not aware of any 10:43:03 8 studies that compare the akathisia-provoking potential of 10:43:06 9 Prozac in strict comparison to other SSRIs. They are all 10:43:11 10 somewhat likely to do so, some more than others, I presume. 10:43:17 11 I think that they can all do it. 10:43:22 12 Q. And your experience has been that Prozac is also more 10:43:26 13 activating than other SSRIs, including Paxil? 10:43:32 14 A. My experience? 10:43:34 15 Q. Yes. 10:43:35 16 A. Well, I have not prescribed a great deal of Paxil, so I 10:43:40 17 have to be careful about how I answer this question in terms 10:43:43 18 of my experience. I've prescribed a great deal more Prozac 10:43:50 19 than I have Paxil and I know it to be very aggravating. 10:43:55 20 I know by scientific reports that Paxil can be 10:43:58 21 activating and I know that in two of my patients it had a 10:44:02 22 disturbing effect. 10:44:06 23 THE COURT: Mr. Preuss, we will take the morning 10:44:08 24 recess at this time. We will take a 20-minute recess because 10:44:12 25 the Court has another matter to attend to, so I will add an 427 10:44:15 1 extra five minutes to this. 10:44:18 2 We will stand in recess for 20 minutes. 3 (Recess taken 10:35 a.m. until 10:50 a.m.) 11:01:53 4 (Following out of the presence of the jury.) 11:01:53 5 THE COURT: Court is in session outside of the 11:01:55 6 presence of the jury in order to resolve a matter of 11:01:56 7 foundation of documents. 11:01:57 8 MR. VICKERY: Thank you, Judge. May I proceed? 11:01:59 9 This man hasn't been sworn and I've been waiting for 11:02:02 10 years to question him under oath. 11:02:05 11 THE COURT: You will get that opportunity. 12 (Witness sworn.) 13 14 RICHARD EWING, 15 called as a witness on behalf of the Plaintiffs, being first 16 duly sworn, testified as follows: 17 DIRECT EXAMINATION 11:02:18 18 Q. (BY MR. VICKERY) State your name, please. 11:02:19 19 A. Richard Ewing. 11:02:20 20 Q. Mr. Ewing, are you a lawyer in the state of Texas? 11:02:24 21 A. I am. 11:02:24 22 Q. And are you of counsel in my law firm? 11:02:28 23 A. I am. 11:02:28 24 Q. How long have you been licensed to practice in the state 11:02:30 25 of Texas? 428 11:02:31 1 A. Since December 1957. 11:02:33 2 Q. Okay. The exhibit in issue is Exhibit 2 and it concerns 11:02:39 3 two different printouts of adverse event materials retrieved 11:02:44 4 from the FDA. Could you just explain for the judge how you 11:02:48 5 went about assembling that material and why it appears in 11:02:52 6 this fashion? 11:02:53 7 A. Yes. We ordered this material from a commercial company 11:02:58 8 in Gettysburg, Maryland. This company we had used before as 11:03:04 9 an intermediary with the FDA. They have the ability to 11:03:09 10 expedite the recovery of data from the FDA. This company is 11:03:14 11 called FOI Services, Inc., and the name is self-explanatory. 11:03:21 12 We had used them in 1997 to obtain the data on 11:03:28 13 Prozac, and at that time the FDA itself furnished the data on 11:03:32 14 computer disks, actually a couple of floppy disks. And later 11:03:38 15 the same company, when we went back to obtain additional data 11:03:44 16 last year about this time, this company had acquired the 11:03:49 17 entire FDA database up until 1997. 11:03:55 18 And I might add quickly that that's a public record 11:03:59 19 and that the Court himself, for example, could download that 11:04:03 20 database. The problem is that it is a million point two 11:04:12 21 records that are more than 400 characters each, and when you 11:04:15 22 download it it is about 100 megabytes on your computer. And 11:04:22 23 then you're faced with the problem how you separate out that 11:04:27 24 various data by drug names and by the particular outcomes and 11:04:30 25 symptoms that you're looking for. 429 11:04:32 1 So we used a commercial company. When we found out 11:04:37 2 they had that database and that capability, we were thrilled 11:04:40 3 to death because the Prozac database had cost me some of my 11:04:45 4 remaining hair and hundreds of hours. So we were delighted 11:04:51 5 to avail ourselves of that commercial service. 11:04:55 6 Q. Mr. Ewing, did you define search parameters to this 11:05:01 7 commercial service so as they got the information retrieved 11:05:04 8 under the Freedom of Information Act it would be limited, 11:05:08 9 useful information? 11:05:09 10 A. Yes. 11:05:09 11 Q. What did you do in that regard? 11:05:10 12 A. We had had the experience with the Prozac database and, if 11:05:14 13 I might explain quickly, Your Honor, there were some 2500 11:05:19 14 Prozac deaths. Of those, approximately 1800 were related to 11:05:26 15 suicide or murder, and of those, there were three central 11:05:32 16 terms that they were clustered under: Suicide attempt, and 11:05:42 17 injury intent, and overdose intent. 11:05:47 18 Those are clearly suicide terms or murder terms, and 11:05:52 19 there were about 1580 of those. 11:05:58 20 Another 300 were scattered among probably 15 more 11:06:02 21 terms. They're just a question mark. There's no way to 11:06:08 22 reduce that to certainty, but at least raises the question. 11:06:14 23 If I might explain, we weren't interested in doing 11:06:18 24 sharpshooting on the exact number of deaths because we're 11:06:23 25 talking about between 1 to 10 percent of the actual events, 430 11:06:26 1 so it would be ridiculous to try to do sharpshooting. 11:06:33 2 What we were trying to do was look at the same flow 11:06:35 3 of data the drug companies had available to them on the issue 11:06:39 4 of duty to test and duty to warn. We just wanted to see what 11:06:47 5 they have been seeing so we could form some educated opinion 11:06:50 6 about what they should have been doing about it. That was 11:06:54 7 our interest. 11:06:55 8 Q. Mr. Ewing, after you got the data collected under these 11:06:58 9 various terms, did you then go through as a function of word 11:07:04 10 processing and winnow it down to the things really relevant 11:07:07 11 here? 11:07:08 12 A. Well, there are two different sets of data. As you can 11:07:11 13 see from the exhibit, Your Honor, there's one set of 11:07:19 14 printouts that are what we ordered from that company. We 11:07:23 15 used the same criteria that we used with Prozac, the same 11:07:28 16 terminology. 11:07:29 17 And that batch of printouts was the product of that. 11:07:33 18 In the second instance -- and you will recognize it 11:07:38 19 because we've kept down the print to about six points. It is 11:07:41 20 hard to read. There's about five or six per page -- that's 11:07:47 21 the entire Paxil database from November of 1997 when the FDA 11:07:56 22 changed their database -- they redid their database -- until 11:08:04 23 the end of 1999 because we had ordered this in the spring of 11:08:07 24 2000. 11:08:15 25 That's a single document, Your Honor. I could send 431 11:08:18 1 you an e-mail and attach that document to it. You wouldn't 11:08:22 2 be very pleased because it would be enormous. 11:08:26 3 Q. How many pages? 11:08:27 4 A. 415 pages in six-point type, which means there's five or 11:08:31 5 six adverse incidents per page. 11:08:34 6 Q. Does that entire 415-page document contain lots of things 11:08:37 7 which bear no relevance to this case at all? 11:08:40 8 A. Oh, sure. 11:08:40 9 Q. How did you whittle it down? 11:08:43 10 A. What we did was take a word processor, start at the 11:08:48 11 beginning of the document and search on terms. We searched 11:08:53 12 on suicide. When the program found the first instance of 11:08:56 13 suicide in the document, we then blocked it and transferred 11:08:59 14 it to a companion document and just went through that tedious 11:09:06 15 process of blocking out that material and transferring it to 11:09:16 16 a different document. 11:09:17 17 In addition to suicide, we searched on akathisia, 11:09:20 18 aggression, we searched on suicidal ideation. And in this 11:09:25 19 instance, because of this case, we separated it between the 11:09:31 20 beginning of that new database in November of 1997 and the 11:09:36 21 start of the -- I mean, the events in this case in February 11:09:41 22 of 1998. 11:09:45 23 So, for example, there were about six suicides in 11:09:48 24 that brief month and then some 50 that followed it. We 11:09:56 25 separated those out so that the Court could look at what the 432 11:09:59 1 drug company looked at before the deaths in this case. 11:10:03 2 Q. Just one more question. The declaration that you did said 11:10:05 3 February of '99. Was that a typo? In fact -- 11:10:09 4 A. That was a typo. 11:10:11 5 MR. VICKERY: That's all the foundation I have, Your 11:10:13 6 Honor. 11:10:13 7 THE COURT: Thank you. 11:10:41 8 Mr. Zvoleff. 11:10:41 9 MR. ZVOLEFF: Morning, Your Honor. 11:10:41 10 THE COURT: Good morning. 11 CROSS-EXAMINATION 11:10:41 12 Q. (BY MR. ZVOLEFF) Good morning, Mr. Ewing. Do you have 11:10:41 13 the exhibit in front of you? 11:10:41 14 A. No, I really don't. 11:10:41 15 MR. VICKERY: I have one right here. 11:10:45 16 Q. (BY MR. ZVOLEFF) Would you please turn to what you 11:10:47 17 denominated in your declaration as Attachment 1? 11:10:51 18 A. Yes, Attachment 1 would be what we ordered from FOI. 11:10:57 19 Q. Thank you. When you were answering Mr. Vickery's 11:11:01 20 questions, you mentioned, I believe, that Attachment 1 was 11:11:06 21 something that you ordered a search done from this 11:11:09 22 third-party contractor of a database that they had, correct? 11:11:14 23 A. The database is the FDA database that was resident on 11:11:18 24 their computers. 11:11:19 25 Q. How do you know it is the FDA database that's resident on 433 11:11:23 1 their computer? 11:11:24 2 A. I have to accept their representation on that and I 11:11:27 3 guarantee you it looks like the stuff I did. I mean, it is 11:11:30 4 the same setup. 11:11:33 5 Q. Now, what search terms were used to generate Attachment 1? 11:11:37 6 A. We had given them a list of the terms that we used. The 11:11:41 7 primary terms were suicide attempt, injury intent and 11:11:46 8 overdose intent. 11:11:49 9 There's 12 or 15 more terms that we considered 11:11:54 10 secondary terms when I did the Prozac database, and they're 11:12:01 11 roughly -- oh, probably 20 percent of the events can be 11:12:05 12 subsumed under those 12 or 15 terms. 11:12:10 13 Q. And what are those 12 or 15 terms? 11:12:12 14 A. There's depression psychotic; overdose; react aggravated, 11:12:21 15 whatever that means; drug interaction; agitation; drug level; 11:12:29 16 depression; reaction unevaluated; nervousness; hostility; 11:12:38 17 anxiety; akathisia; tremor; hallucination. 11:12:46 18 Q. Now what we see on Attachment 1, then, are all the entries 11:12:49 19 that were generated by that search, as you understand it? 11:12:53 20 A. That's correct. 11:12:53 21 Q. And that's assuming that this third-party vendor performed 11:12:57 22 the search correctly? 11:12:59 23 A. That's correct. 11:12:59 24 Q. Now, would you please look at the first page of 11:13:01 25 Attachment 1? 434 11:13:02 1 A. Yes. 11:13:03 2 Q. Up on the top it says, "List reported with terms related 11:13:08 3 to suicide." The terms related to suicide are the terms you 11:13:13 4 just listed for me? 11:13:15 5 A. Yes. 11:13:15 6 Q. And that's because you believe those terms are related to 11:13:18 7 suicide? 11:13:19 8 A. Well, clearly on these first three, but on the others it 11:13:22 9 is a matter of surmise, question of deduction or surmise. 11:13:30 10 Q. Then it says, "37 reported reactions." That 37 reflects 11:13:37 11 all of the events listed on these three pages? 11:13:40 12 A. No -- yes, the 37 represents all of the reactions, but it 11:13:52 13 goes on to say, "28 unique reactions." 11:13:55 14 Q. And what's the term "unique" mean? 11:13:59 15 A. It means per patient. 11:14:00 16 Q. And is unique something that's in the FDA database? 11:14:03 17 A. Unique is a description of the data that's assembled by 11:14:06 18 case number by the FDA. 11:14:08 19 Q. You added the term "unique," correct? The term "unique" 11:14:17 20 doesn't appear in the FDA database? 11:14:19 21 A. No, it is a descriptor of what happens when you separate 11:14:21 22 the cases out. You see, you can have multiple reactions. 11:14:25 23 Q. I will get into that in a second. But it is your 11:14:28 24 descriptor, correct? 11:14:30 25 A. Yes. 435 11:14:30 1 Q. And after that it says, "28 unique reactions." Who came 11:14:35 2 up with the 28? 11:14:42 3 A. That's simply the computer determines how many unique 11:14:45 4 numbers there are in this patient number field. 11:14:47 5 Q. And who told the computer to do that? You did? 11:14:50 6 A. That would be the company, of course. 11:14:52 7 Q. And you instructed the company to do that, correct? 11:14:55 8 A. Right. 11:15:01 9 Q. You mentioned there will be multiple entries for really 11:15:04 10 the same patient here? 11 A. That's correct. 11:15:07 12 Q. At the top we see two entries in a row: Age, 62; sex, 11:15:13 13 female? 11:15:14 14 A. Sure. 11:15:15 15 Q. It is your assumption that that's in fact below Outcome, 11:15:20 16 so it looks like two people died, it would be your assumption 11:15:23 17 that that's actually the same person, right? 11:15:26 18 A. Yes. 11:15:26 19 Q. And then it says on the first line "suicide attempts" 11:15:30 20 under Reaction, but it says as the outcome "die." Can you 11:15:36 21 explain to me how the outcome of a suicide attempt is die 11:15:44 22 rather than a suicide? 23 A. The costar terminology that was in use until November 1997 11:15:46 24 was 15 single-spaced pages of medical terms and they didn't 11:15:52 25 have suicide, they didn't have murder. What they called 436 11:15:57 1 suicide was suicide attempt. 11:16:00 2 Q. And this is your testimony about what these terms mean, 11:16:02 3 aren't they, right? 11:16:04 4 A. I have been through them one by one, 43,000 of them on 11:16:08 5 Prozac. 11:16:09 6 Q. Now, let's go down a number of lines. And I'll try to 11:16:12 7 move this along quickly. If you go down about eight lines, 11:16:18 8 the first one there where you say "157 underage" and then 11:16:23 9 "female"? 11:16:24 10 A. Yes. 11:16:24 11 Q. And now there are four entries that say in a row "15 11:16:27 12 female die," correct? 11:16:30 13 A. Right. 11:16:30 14 Q. How do you -- is there any way to tell other than the 11:16:35 15 assumption that because the age and sex is the same that it 11:16:40 16 is the same person whether or not those are duplicative 11:16:43 17 entries from anything on this form? 11:16:44 18 A. You see the field there that's called control number? 11:16:49 19 Q. Yes, I do. 11:16:50 20 A. That's the key to these databases, the old and the new. 11:16:55 21 Q. There are two different control numbers for the 11:16:57 22 15-year-old female, aren't there? 11:16:59 23 A. There can be if they go into a subsequent patient. There 11:17:02 24 can be. That was one of the things that was corrected in the 11:17:08 25 1997 renewal of the database. 437 11:17:15 1 Q. Let me suggest to you that if we go through these first 11:17:18 2 three pages and count up all of the ones that appear to be 11:17:22 3 duplicates, we will not come up with 28 unique reactions, we 11:17:27 4 will come up with 22. Have you tried to do that to see if 28 11:17:33 5 unique reactions is the right number? 11:17:35 6 A. If you will notice, you can just barely see down here at 11:17:38 7 the bottom some semi-erased numbers. Yes, I have tried to do 8 that. 11:17:44 9 Q. Well, do you think 28 is the right number then? 11:17:47 10 A. I suspect 22 is probably closer. 11:17:49 11 Q. But it says 28 on this document? 11:17:51 12 A. I understand. It found 28 different numbers. 11:17:56 13 MR. ZVOLEFF: Your Honor, I could go on and on with 11:17:58 14 these documents and the problems with them. They are not 11:18:01 15 accurate copies of public records. They're not authenticated 11:18:05 16 by this testimony. They're something that could have been 11:18:09 17 prepared -- they could have made an FOI request and gotten a 11:18:14 18 real FOI response from the FDA and then we wouldn't have 11:18:19 19 these problems. 11:18:20 20 There's numerous problems. If I went on in our 11:18:24 21 discussions I could elicit testimony that he doesn't know how 11:18:27 22 they were characterized, who characterized them. These do 11:18:31 23 not fit within any exception to the hearsay rule. I would be 11:18:34 24 happy to continue to point out to the Court some of the many 11:18:39 25 problems with these, but I think it is just absolutely clear 438 11:18:42 1 they're not admissible. 11:18:45 2 I will continue if the Court would like me to. I can 11:18:47 3 show the problems in Attachment 2 that are similar. 11:18:56 4 THE COURT: I haven't seen the exhibit. I don't know 11:18:58 5 what the information is. 11:19:01 6 MR. ZVOLEFF: Hopefully we have a copy. 11:19:03 7 MR. VICKERY: If the Court has your 11:19:04 8 bench book there, it should be there under Plaintiff's 11:19:07 9 Exhibit 2, and I think they're called 2-A and 2-B. 11:19:13 10 THE COURT: Let's see what it looks like. 11:19:26 11 MR. ZVOLEFF: Our objections were foundation, 11:19:27 12 relevance, hearsay. I would add they're hearsay because of 11:19:33 13 all the double counting that goes on and the inaccuracies. 11:19:38 14 THE COURT: What's the probative value from your 11:19:40 15 standpoint? 11:19:40 16 MR. VICKERY: From my standpoint the probative value 11:19:43 17 of this volume of information of deaths and reactions of kind 11:19:46 18 that we're talking about before February of 1998 is that it 11:19:50 19 gives rise to a duty to warn and a duty to test. 11:19:55 20 Mr. Zvoleff has raised three legal objections to 11:20:01 21 these and I'll address them briefly. First, authentication 11:20:04 22 under Rule 901(a), anything that satisfies the Court that 11:20:08 23 something is, quote, what it claims to be is adequate. And 11:20:12 24 indeed, there's a whole delineation under 901(b) of the type 11:20:17 25 and ways to authenticate something and the very first one is 439 11:20:21 1 testimony. So I think that Mr. Ewing's testimony suffices to 11:20:27 2 indicate that these are what they claim to be. 11:20:30 3 THE COURT: Typically that testimony would be from an 11:20:32 4 FDA employee, recordskeeper, somebody like that. 11:20:35 5 MR. VICKERY: I understand. The problem, as 11:20:36 6 illustrated by Mr. Ewing's testimony, is if you simply do 11:20:40 7 that and you don't go through the process of trying to winnow 11:20:42 8 it down, inundate the Court and the jury with a 415-page 11:20:46 9 document, most of which is irrelevant. 11:20:50 10 And so, you know, it is our obligation to whittle it 11:20:53 11 down to the matters that are relevant. 11:20:58 12 As far as the hearsay objection, I would say simply 11:21:02 13 this, you know, these are government records. They're 11:21:05 14 obtained pursuant to the Freedom of Information Act through a 11:21:08 15 relevant service. The complaints that Mr. Zvoleff has go to 11:21:11 16 the weight the jury might give to that testimony. 11:21:15 17 I'm perfectly willing -- if he thinks that he might 11:21:20 18 undermine that weight by cross-examining Mr. Ewing in front 11:21:25 19 of the jury, I'm willing to do this in front of the jury. I 11:21:28 20 think it is authentic, it is not hearsay and it is relevant. 11:21:32 21 MR. ZVOLEFF: May I respond quickly? They're not the 11:21:35 22 result of an FOI request. Mr. Ewing requested, he did it on 11:21:38 23 an expedited basis and he used this third-party contractor. 11:21:42 24 If they were the result of an FOI request we would have a 11:21:45 25 different response here and at least we would be dealing with 440 11:21:49 1 something we knew were public records. 11:21:51 2 When he says they've whittled it down for the Court's 11:21:54 3 convenience and ours, I don't know what was or wasn't lost in 11:21:56 4 the whittling because we weren't part of that process. What 11:22:00 5 we have here is a nonauthentic public record prepared by 11:22:03 6 their office, and in his declaration he says we will be 11:22:06 7 provided the entire database that it was winnowed down from. 11:22:10 8 I still don't have that as of today. 11:22:13 9 THE WITNESS: Well, you and I discussed that. 10 THE COURT: Wait. 11:22:15 11 MR. ZVOLEFF: We discussed it yesterday and how you 11:22:16 12 could e-mail it to me. We discussed that yesterday 11:22:20 13 afternoon. That's absolutely true. 11:22:22 14 And when they're saying that these documents are 11:22:24 15 relevant here because of notice and it said the cutoff period 11:22:28 16 ends in February of '98, if you look at the last page of 11:22:32 17 Attachment 2, you will see that the last entry on there is 11:22:36 18 dated 7/20/99, so Attachment 2 isn't even what it has been 11:22:41 19 said to be this morning. 11:22:44 20 MR. VICKERY: It is, Judge. Attachment 2 is broken 11:22:45 21 down in two parts. There's a section that goes through 11:22:48 22 February 12th, '98 and then there's the rest of the 11:22:52 23 documents. The ones that are there up to February 12th of 11:22:55 24 '98 are the ones that we would offer that are relevant to 11:23:00 25 notice. 441 11:23:00 1 THE COURT: Well, this is information that you say is 11:23:03 2 available on the database to anybody? 11:23:06 3 MR. VICKERY: Yes. 11:23:06 4 THE COURT: That's what the witness has testified. 11:23:09 5 MR. VICKERY: That's right. It is just -- the whole 11:23:10 6 question is how one gets it efficiently and then how one 11:23:16 7 pares it down to what is germane. 11:23:18 8 THE COURT: Mr. Zvoleff challenges it being -- I 11:23:22 9 think that's probably my most concern with it is is this 11:23:28 10 information duplicitous and how can we be sure that it 11:23:31 11 doesn't overstate the situation. What's our safeguard? 11:23:36 12 MR. VICKERY: I think we have two safeguards. One 11:23:39 13 safeguard is that Mr. Zvoleff can cross-examine Mr. Ewing in 11:23:44 14 front of the jury about that very issue. 11:23:46 15 The second safeguard, of course, is all of this 11:23:48 16 information is available to SmithKline Beecham on their 11:23:51 17 computers because they have the same information about 11:23:53 18 adverse events that the FDA has. 11:24:01 19 The safeguard is they could easily with the punch of 11:24:05 20 computer buttons produce a witness and say, "I have gone 11:24:08 21 through the database and it is really 22 instead of 28." And 11:24:18 22 the jury can give it whatever weight. 11:24:18 23 THE COURT: You lost me there. You can have a 11:24:18 24 witness that pushes a button and does what? 11:24:20 25 MR. VICKERY: I don't mean to make it too simplistic. 442 11:24:23 1 They have the same information on their computers that we do 11:24:26 2 in this database. They have it in-house where we had to get 11:24:31 3 it in the manner we did. The safeguard is they have the 11:24:35 4 opportunity to bring in a witness if they want to to say, "We 11:24:40 5 searched our computers and we have this problem with this 11:24:44 6 exhibit." 11:24:45 7 THE COURT: What exception to the rules do you think 11:24:47 8 this falls under? 11:24:48 9 MR. VICKERY: Government records. There's multiple 11:24:50 10 ways -- there's an authentication issue and a hearsay issue. 11:24:54 11 You can authenticate government records by getting them from 11:24:57 12 the government with a blue seal. You can also authenticate 11:25:01 13 them with testimony as we've done this morning indicating 11:25:04 14 that they are what they appear to be. 11:25:06 15 The second thing is the hearsay and these are, 11:25:08 16 indeed, government records. 11:25:09 17 THE COURT: Mr. Zvoleff. 11:25:11 18 MR. ZVOLEFF: Well, under the government records 11:25:13 19 exception they have to be established to be authentic and 11:25:15 20 there has to be testimony they were compared to the 11:25:19 21 originals, et cetera. There's none of that here. 11:25:22 22 When he says we can fix it, if you look at the first 11:25:25 23 page of Attachment 1 -- 11:25:27 24 THE COURT: How do you tell what is Attachment 1? 11:25:30 25 MR. ZVOLEFF: It starts with Paxil on the top and 443 11:25:34 1 under that it says "deaths reported" with terms related to 11:25:37 2 suicide. Should be the very first page after the 11:25:42 3 declaration. 11:25:42 4 Right there in deciding whether or not that comes in 11:25:44 5 under the hearsay rule, reliability is the key. He has 11:25:48 6 already admitted it says, "37 reported reactions. 28 unique 11:25:52 7 reactions. 28 is wrong. It is 22." That's unreliable. 11:25:58 8 But you go down this column and you see a whole 11:26:01 9 column of die, die, die. And in his testimony here this 11:26:04 10 morning you get about a third of the way down, there's four 11:26:07 11 in a row there which he has testified he believes to be 11:26:12 12 duplicate entries, in effect, the same patient. And you 11:26:17 13 can't tell by the control number because it changes. 11:26:19 14 So the way they have chosen to prepare this -- and 11:26:24 15 they could have done an FOI request and really gotten public 11:26:29 16 records -- we end up with a whole slew of dies that in fact 11:26:33 17 is just plain not right. It is double counting, triple 11:26:39 18 counting, and in that instance counting the same person four 11:26:42 19 times. 11:26:44 20 THE COURT: Anything else, Mr. Vickery? 11:26:47 21 MR. VICKERY: No, Your Honor. 11:26:53 22 THE COURT: I feel the defendant has raised 11:26:55 23 sufficient doubt in my mind as to the reliability of 11:26:59 24 plaintiff's proposed Exhibit 2 and without further foundation 11:27:03 25 or a way to correct what is explicit on here, as at least one 444 11:27:12 1 problem with the reliability of the information contained 11:27:14 2 hereon that was generated by plaintiff's counsel through an 11:27:19 3 outside service that reviewed allegedly government document 11:27:27 4 databases, I'm going to grant the objection. 11:27:31 5 MR. ZVOLEFF: Thank you, Your Honor. 11:27:40 6 MR. GORMAN: Your Honor, before we bring the jury in 11:27:41 7 can I raise one additional quick issue? 11:27:45 8 We have some witnesses I think are anticipated to be 11:27:48 9 called, specifically Tim's stepfather and mother, and the 11:27:52 10 description of testimony is this: They can testify regarding 11:27:54 11 the enormous emotional and physical consequences to Tim of 11:27:58 12 Deb and Alyssa's death. 11:28:02 13 I just want a clarification from the Court that -- I 11:28:06 14 think this kind of testimony has been limited given the 11:28:08 15 Court's ruling on the infliction of emotional distress claim 11:28:13 16 here. And so I just want to alert the Court when those 11:28:16 17 witnesses show up, we will have an objection to them 11:28:20 18 testifying in the areas they have been designated. And 11:28:22 19 that's all I wanted to alert the Court of. 11:28:25 20 MR. FITZGERALD: They're going to be on pretty 11:28:27 21 quickly so maybe we ought to fight it out. 11:28:29 22 Mr. Tobin's mother is prepared to testify about the 11:28:35 23 fact that he married Deb, how he met her, et cetera, so I can 11:28:40 24 lay some foundation for how she would know what the effect 11:28:43 25 has been on him of the loss in this case. 445 11:28:48 1 THE COURT: Well, this is a wrongful death action 11:28:54 2 under Wyoming law and the emotional impact I don't think is 11:28:57 3 relevant. 11:28:58 4 MR. FITZGERALD: What they're saying here, I believe, 11:28:59 5 is to say since they're only designated to talk about 11:29:02 6 emotional impact, they can't talk about lost care, comfort 11:29:07 7 and society, and our position is what else would they be 11:29:09 8 testifying to in a wrongful death case? This is certainly no 11:29:12 9 surprise to the defense. 11:29:14 10 THE COURT: Mr. Gorman. 11:29:15 11 MR. GORMAN: Well, all I'm relying on is what the 11:29:17 12 testimony is that has been designated. The testimony is 11:29:20 13 designated for Mr. Durant and Mrs. Durant that they will 11:29:24 14 testify regarding the enormous emotional and physical 11:29:31 15 consequences to Tim of Deb and Alyssa's deaths. 11:29:32 16 THE COURT: That is not relevant under the Court's 11:29:34 17 rulings and that will not be allowed, but we will certainly 11:29:37 18 allow the witnesses to testify with regard to care, comfort 11:29:40 19 and society under Wyoming law. 11:29:42 20 MR. GORMAN: That's all I wanted to alert the Court 11:29:44 21 to. 11:29:44 22 THE COURT: Very good. 11:29:45 23 MR. FITZGERALD: And for scheduling, it is only going 11:29:47 24 to be Tim's mother. 11:29:49 25 THE COURT: Very well. 446 11:29:52 1 MR. VICKERY: I violate the rule here, two lawyers 11:29:54 2 talking about the same issue. Your Honor, we still have an 11:29:56 3 active pleading for a claim, a complementary claim under the 11:30:02 4 Montana Wrongful Death Act which does include those elements. 11:30:05 5 It has not been challenged by motion to dismiss and there's 11:30:09 6 been no -- I know the Court mentioned your inclination but as 11:30:12 7 of this point there has been no ruling by the Court. 11:30:15 8 THE COURT: You're about to get it. 11:30:17 9 MR. VICKERY: Okay. Let me have it. 11:30:18 10 THE COURT: Mr. Gorman. 11:30:19 11 MR. GORMAN: No, Your Honor, I think we did address 11:30:21 12 that and I think the Court has already indicated that Wyoming 11:30:24 13 law controls and not Montana law. 11:30:27 14 THE COURT: This case was brought in Wyoming, happens 11:30:29 15 to be by a citizen of Montana. When he subjected himself to 11:30:33 16 the common law and statutory laws of the State of Wyoming, 11:30:37 17 they were the ones that control in this matter. I am not at 11:30:40 18 all convinced that we can cherry pick laws or statutes from 11:30:47 19 other states to fit the particular situation. I don't 11:30:51 20 believe the law cited to me supports the position taken by 11:30:54 21 the plaintiffs. If that were the case, we could look all 11:30:57 22 over the country for laws that suited our situation, I 11:31:07 23 believe. 11:31:08 24 I am going to deny any kind of the use one way or the 11:31:11 25 other of the laws of the state of Montana in this case. 447 11:31:14 1 We're going to use federal law and substantive Wyoming law. 11:31:18 2 MR. VICKERY: And rather than burden the Court at a 11:31:21 3 subsequent time, can I just make that as an offer of proof, 11:31:25 4 the testimony, and just say that we would, if the Court ruled 11:31:28 5 differently, have offered evidence from Tim, from his mother, 11:31:32 6 his stepfather, his brother along those lines? 11:31:36 7 THE COURT: Yes, you may. 11:31:37 8 MR. VICKERY: Thank you, Judge. 11:31:38 9 THE COURT: Very well. The clerk will call in the 11:31:40 10 jury and apologize to them for taking up 40 minutes of their 11:31:49 11 time. 11:31:50 12 (Following in the presence of the jury.) 11:32:50 13 THE COURT: Ladies and gentlemen, I apologize for the 11:32:51 14 delay. I told you 20 minutes and it went probably 40 11:32:54 15 minutes. I told you before we wouldn't allow that to happen 11:32:58 16 but once in a while matters come about that the lawyers and 11:33:01 17 the Court need to discuss among themselves outside of your 11:33:04 18 presence, and this was one of those occasions. 11:33:07 19 We got a lot of matters resolved during this period 11:33:11 20 of time so we shouldn't have too many other interruptions 11:33:14 21 like this. And we all apologize to you and hope that we 11:33:18 22 didn't waste too much of your time. 11:33:22 23 We will continue with the cross-examination of 11:33:24 24 Dr. Maltsberger. 11:33:25 25 Dr. Maltsberger, I'm sure you recognize you're still 448 11:33:29 1 under oath. 11:33:30 2 THE WITNESS: Yes, sir. 11:33:30 3 THE COURT: Very well. 11:33:32 4 Q. (BY MR. PREUSS) Doctor, when we broke off we were talking 11:33:35 5 about Prozac, I believe, and your experience with it which 11:33:38 6 you indicated was limited. And I asked you, I think, before 11:33:43 7 the break whether it was your view that Prozac is more 11:33:48 8 activating than the other SSRIs, and I believe you testified 11:33:51 9 in deposition that that was your opinion. Is that correct? 11:33:57 10 A. I can't remember what I said in my deposition. It 11:33:59 11 certainly is a very activating SSRI and it has a very long 11:34:07 12 half-life, so I'm somewhat wary of it. 11:34:11 13 I believe, however, of the SSRI drugs I heard 11:34:15 14 Dr. Healy testify to this, that Paxil is by far the most 11:34:18 15 potent. 11:34:19 16 Q. Well, I was asking you for your opinion, and I believe you 11:34:22 17 testified, did you not, in your deposition that you found 11:34:25 18 Prozac more activating than other SSRIs? 11:34:29 19 A. I don't remember. I think they're both plenty activating. 11:34:32 20 Q. And by being activating, you mean to include the term 11:34:36 21 "stirred up or excited," right? 11:34:40 22 A. Yes. 11:34:41 23 Q. And you testified, have you not, before that Prozac is not 11:34:45 24 likely to make even one in a thousand patients who take it 11:34:49 25 suicidal? 449 11:34:53 1 A. If that's in my deposition it will speak for itself. My 11:34:59 2 experience is that suicide on the SSRI drugs is a rare event. 11:35:06 3 In fact, there are only 30,000 suicides a year in this 11:35:09 4 country. But I believe that from time to time suicides occur 11:35:13 5 that are driven by activating SSRI drugs. It isn't a common 11:35:25 6 event, but I do believe it happens in a subgroup of 11:35:28 7 particularly susceptible individuals who have paradoxical 11:35:36 8 reactions to these drugs. 11:35:36 9 Q. You're not changing your testimony that it is something 11:35:36 10 less than one in a thousand? 11:35:37 11 A. That's fair enough. 11:35:38 12 Q. Now, with respect to your Prozac experience, you haven't 11:35:42 13 had anybody commit homicide with Prozac, right? 11:35:46 14 A. None of my patients have ever committed suicide or 11:35:48 15 homicide under any circumstances. 11:35:50 16 Q. And you have had none on Prozac that had emergent suicidal 11:35:54 17 thinking? 11:36:11 18 A. I don't recall any. I get them off of it pretty fast when 11:36:13 19 they start getting stirred up. 11:36:15 20 Q. Doctor, you're not aware of any case report in the entire 11:36:18 21 worldwide literature, are you, that akathisia-induced suicide 11:36:22 22 has occurred in a patient taking Paxil, correct? 11:36:25 23 A. Not in any published data. 11:36:28 24 Q. And do you have any idea how many patients in the world 11:36:31 25 have taken Paxil? 450 11:36:38 1 A. There must be vast numbers that have taken Paxil. 11:36:42 2 Q. You wouldn't quarrel with tens of millions? 11:36:45 3 A. No, but of course it is quite possible that suicides in 11:36:47 4 that group are not coming to public attention. 11:36:51 5 Q. Doctor, you're unaware of any case report in the worldwide 11:36:55 6 literature that documents akathisia-induced homicide in 11:36:57 7 patients taking Paxil either, are you? 11:36:59 8 A. No. 11:37:00 9 Q. And the same is true with respect to what you call 11:37:02 10 Paxil-induced anguish and suicide or homicide; isn't that 11:37:07 11 correct? 11:37:17 12 A. I can't recall. I think there must be such publications. 11:37:21 13 I can't -- 11:37:21 14 Q. I'm asking you whether you're aware of any. 11:37:25 15 A. I can't remember any. 11:37:26 16 Q. Thank you. Now, you claim that Paxil can make some 11:37:31 17 patients anxious, correct? 11:37:33 18 A. That is my belief. 11:37:34 19 Q. And you understand that Paxil is approved for various 11:37:38 20 indications involving anxiety of one type or another; is that 11:37:42 21 correct? 11:37:43 22 A. It is so approved. 11:37:50 23 Q. You never published anything in writing with respect to 11:37:54 24 Paxil and any relationship of Paxil and suicide or homicide, 11:37:59 25 have you? 451 11:38:00 1 A. Not Paxil, or paroxetine by name. 11:38:14 2 Q. And you're not aware of any case in the literature that 11:38:19 3 ties Paxil into acute suicidal state either, are you? 11:38:29 4 A. Well, I think it is generally understood that Paxil can -- 11:38:32 5 Q. I'm asking if you're aware of any report in writing of 11:38:36 6 Paxil producing suicidal state, sir. 11:38:39 7 A. No printed, published report. 11:38:43 8 Q. Thank you. And with respect to the public literature, 11:38:48 9 again you're not aware of anything that links an individual 11:38:50 10 with a history of unusual anxiety on Paxil leading to either 11:38:53 11 homicide or suicide, correct? 11:38:56 12 A. That's correct, not everything gets published. 11:39:01 13 Q. And you're not aware of anything in the literature by case 11:39:03 14 report or otherwise that somebody with a history of akathisia 11:39:12 15 on Paxil then became suicidal or homicidal, correct? 11:39:16 16 A. Nothing in the published literature. 11:39:18 17 Q. Thank you. Now, I would like to give you -- do you have 11:39:35 18 the Donovan study there still? 11:39:38 19 A. No. 11:39:40 20 Q. Let me get you one. I have one for you. It is not 11:39:51 21 connected, so it could spray around. 11:40:07 22 Before we get into that, what drugs do you normally 11:40:10 23 prescribe for depression? 11:40:13 24 A. Most commonly I prescribe Zoloft. Sometimes I prescribe 11:40:18 25 Prozac. I from time to time prescribe venlafaxine. I have 452 11:40:27 1 prescribed Wellbutrin. 11:40:29 2 Q. When is the last time you read the labeling on Wellbutrin? 11:40:34 3 A. I don't remember. 11:40:37 4 Q. Six months ago? Year ago? 11:40:38 5 A. I don't remember. 11:40:40 6 Q. When did you last read the package insert for Zoloft? 11:40:45 7 A. I don't remember. I have read them. I don't think they 11:40:50 8 change. 11:40:52 9 Q. Do you read them every year to see if they've changed? 11:40:55 10 A. No. 11:40:56 11 Q. You understand the PDR is produced on an annual basis, 11:41:00 12 right? 11:41:01 13 A. Well, I look to see what black box warnings are appearing 11:41:05 14 and there's no changes. 11:41:06 15 Q. Is it your testimony you do read it every year, then? 11:41:09 16 A. I look at it. I don't study it. 11:41:11 17 Q. What do you mean? 11:41:12 18 A. For the drugs I prescribe, yes, I do look at it. 11:41:15 19 Q. What do you mean you look at it? 11:41:16 20 A. I don't read every line every year. 11:41:22 21 Q. Now let's go to Donovan. You got that from Mr. Vickery, 11:41:26 22 right? Fist time you knew it is when Mr. Vickery sent it to 11:41:35 23 you? 11:41:35 24 A. No, I'm not sure the first time I got it is when he sent 11:41:40 25 it to me. He called the publication of it to my opinion. I 453 11:41:43 1 don't know if he ever sent me a copy or not. I guess he did. 11:41:45 2 I have also retrieved it off the Internet. It was published 11:41:49 3 in the British Journal of Psychiatry last year. 11:41:53 4 Q. And my question was the first time you saw it is when you 11:41:58 5 got it from Mr. Vickery by e-mail, right? 11:42:05 6 A. I don't recall how I got it. Mr. Vickery was certainly 11:42:05 7 the first person to bring it to my attention. 11:42:11 8 Q. This study involved deliberate self harm, correct? 11:42:16 9 A. Yes. 11:42:16 10 Q. And that's different than suicide? 11:42:19 11 A. Suicide is a subclass of deliberate self harm. 11:42:22 12 Q. The authors point out in this article, do they not, that 11:42:25 13 deliberate self harm is not a proxy for suicide, rather it is 11:42:30 14 a risk factor; isn't that correct? 11:42:33 15 A. Not strictly. 11:42:34 16 Q. I mean, would you turn then -- 11:42:36 17 A. If somebody is already dead, then they're already dead. 11:42:40 18 Q. Would you turn to page 555, sir? 11:42:49 19 A. I have it. 11:42:49 20 Q. In the right-hand column, lower right corner, it reads, 11:43:21 21 "Nevertheless, although nonfatal DSH is not a proxy for 11:43:21 22 suicide, because DSH is not always synonymous with failed 11:43:21 23 suicide, it is a risk factor"? 11:43:21 24 A. Yes, that's correct. I believe that. 11:43:23 25 Q. Now, with respect to this study, we have no way of 454 11:43:26 1 knowing, do we, whether or not all the drugs looked at there 11:43:31 2 reduce the risk of self harm? Do we? 3 A. No. 11:44:05 4 Q. So even though, as you pointed out in the table, a table 11:44:05 5 indicates a four times more risk with respect to Paxil over 11:44:05 6 the amitriptyline, we don't know whether Paxil was effective 11:44:05 7 in reducing the risk but just not as much as amitriptyline, 11:44:05 8 right, because we have no placebo control? 11:44:06 9 A. That's fair enough. 11:44:29 10 Q. And this was not a randomized study, right? 11:44:29 11 A. That's right. 11:44:29 12 Q. There were some limiting factors pointed out by the 11:44:29 13 authors, right? 11:44:29 14 A. That's right. 11:44:29 15 Q. Including the fact that there were a lot of young people 11:44:29 16 using SSRIs, right? 11:44:29 17 A. That's right. 11:44:29 18 Q. And young people are more prone to deliberate self harm 11:44:33 19 activities; isn't that correct? 11:44:35 20 A. No. 11:44:36 21 Q. It is not correct? 11:44:37 22 A. Not. 11:44:41 23 Q. And let's take a look at that. Certainly on page 554 the 11:44:54 24 authors point out what the influence of age had on this 11:44:58 25 particular study, did they not? 455 11:45:01 1 A. Well, in this group we know that old people kill 11:45:04 2 themselves a lot more than young people. 11:45:06 3 Q. We're not talking about that. We're talking about 11:45:08 4 deliberate self harm in this study, aren't we, Doctor? 11:45:12 5 A. You must be clearer, please, Mr. Preuss, because you're 11:45:15 6 confounding self injuries and completed suicides. Now, 11:45:18 7 completed suicides are a kind of deliberate self harm, so if 11:45:22 8 in your questions you would separate the two, I could give 11:45:25 9 you more clear answers. 11:45:26 10 Q. Doctor, I apologize if I did confound anything. 11:45:30 11 What I'm referring to is the various items here under 11:45:34 12 the column on 552 where they talk about deliberate self harm. 11:45:39 13 And they specify what they're talking about in the study and 11:45:42 14 all my questions that I've asked you previously and which I 11:45:45 15 intend to ask are within this context. 11:45:50 16 So if they talk about hanging, strangulation, 11:45:56 17 gassing, suffocation, drowning, inhalation, laceration, use 11:46:00 18 of firearms, jumping -- 11:46:02 19 A. Are you referring to the table on page 552? 11:46:04 20 Q. No, I'm referring to the methods of DSH in the upper 11:46:09 21 left-hand corner. 11:46:10 22 A. Yes, I see. 11:46:11 23 Q. Okay. That's what I'm talking about. 11:46:29 24 A. Okay. 11:46:29 25 Q. The authors point out, do they not, that their observation 456 11:46:59 1 is that prescribers are heeding the advice to prescribe 11:46:59 2 safer-in-overdose antidepressants to patients who are 11:46:59 3 perceived to be at greater risk of DSH, right? 11:46:59 4 A. That's an inference they draw. 11:46:59 5 Q. They actually say that, right, on page 556, left-hand 11:46:59 6 column where it says, "Equally relevant, however, is the 11:47:09 7 pragmatic consideration that prescribers are heeding advice 11:47:12 8 to prescribe safer-in-overdose antidepressants to patients 11:47:16 9 who are perceived to be at greater risk of DSH"? 11:47:19 10 A. Well, they say that that's what is going on, but I don't 11:47:22 11 see any evidence that they offer to prove it. 11:47:24 12 Q. Okay. And then they go on to say, do they not -- and they 11:48:01 13 go on to say, do they not, that this effectively loads the 11:48:08 14 dice against SSRIs so this manifests as an apparent excess of 11:48:11 15 self-harm behavior in patients who had been prescribed these 11:48:15 16 antidepressants? 11:48:16 17 A. That's what they infer. 11:48:18 18 Q. And you would agree that risk to patients from overdose is 11:48:23 19 greater with the tricyclics than it is with the SSRIs, do you 11:48:27 20 not? 11:48:28 21 A. I believe the tricyclic drugs are much more poisonous than 11:48:34 22 the SSRIs. 11:48:35 23 Q. The converse of that -- 11:48:36 24 A. If you take 50 Paxils in overdose, you're likely to 11:48:41 25 survive. If you take 50 of the tricyclics, you very likely 457 11:48:45 1 will die. 11:48:50 2 Q. As a prescriber, you would tend to prescribe the SSRIs if 11:48:50 3 you were fearful that you had a patient that might be 11:48:54 4 thinking about suicide through overdose? 11:48:57 5 A. That's reasonable. 11:49:17 6 Q. The authors also have a statement in there with respect to 11:49:20 7 trying to draw an inference between cause and effect between 11:49:24 8 Paxil and deliberate self harm, correct? 11:49:31 9 A. That goes to this thorny question of proving a necessary 11:49:36 10 connection between two associated events. That's a problem 11:49:38 11 that has beset -- 11:49:40 12 Q. Doctor, my question is did they in cause and effect on 11:49:43 13 page 555 point out the difficulty of drawing any inferences 11:49:48 14 of causation from this study? 11:49:50 15 A. That's what they say. 11:49:55 16 Q. In fact, they say, "It is difficult to attribute the cause 11:49:57 17 of DSH behavior to antidepressant treatment when such 11:50:00 18 behavior can also occur spontaneously during the course of 11:50:04 19 depressive illness"? You would agree with that statement, 11:50:06 20 right? 11:50:07 21 A. I'm not sure I do. 11:50:08 22 Q. They go on to say establishment of cause and effect for 11:50:11 23 the different apparent risk of DSH associated with different 11:50:17 24 antidepressants seen in this study is therefore almost 11:50:20 25 impossible? Is that what the authors state, sir? 458 11:50:23 1 A. That's what the authors state. 11:51:03 2 Q. You would agree, would you not, sir, that untreated 11:51:05 3 depression can lead to violence and suicide? 11:51:09 4 A. It is more likely to lead to suicide. When patients who 11:51:15 5 have been depressed become violent one must suspect that the 11:51:23 6 patient is moving in a direction of a mania. 11:51:30 7 Q. Okay. And treatment with an SSRI is generally regarded as 11:51:38 8 being able to reduce some aggression? 11:51:43 9 A. Not at first. 11:51:45 10 Q. Is that true across the board for every patient? 11:51:48 11 A. Across the board for agitated, restless patients, if 11:51:55 12 you're going to get any quieting effect on aggressivity, it 11:51:59 13 is going to take typically some little time. The SSRIs, as 11:52:03 14 you know, do not act therapeutically immediately. 11:52:06 15 However, the side effects of the SSRIs are likely to 11:52:09 16 manifest themselves sooner than the therapeutic effect. And 11:52:12 17 one of the side effects of all the SSRIs, including Paxil, is 11:52:18 18 that it may promote turmoil and frenzy. 11:52:23 19 Q. Doctor, akathisia occurs without drug exposure, does it 11:52:26 20 not? 11:52:27 21 A. Depends on how you define the term. As defined in the 11:52:32 22 PDR, it is fairly well limited to manifestations of turmoil 11:52:44 23 or anxiety coupled with motor activation in response to 11:52:49 24 drugs. 11:52:49 25 I think that without any drugs patients can get into 459 11:52:52 1 states that are indistinguishable from akathisia. That is, 11:52:59 2 plenty of patients who haven't taken any drug may get into 11:53:05 3 tremendous agitated, excited states. They may pace. They 11:53:12 4 may wring their hands. They may be unable to sit still. 11:53:16 5 They cry. They weep. 11:53:19 6 Q. You have no evidence there were any restlessness or motor 11:53:22 7 movements that Don Schell had prior to his death, do you? 11:53:28 8 A. I believe in Dr. Paxil's notes restlessness is mentioned. 11:53:31 9 Q. Any mention of leg movements, pacing about? 11:53:34 10 A. Well, let's look at the notes. 11:54:08 11 Q. Are those the notes or are those your handwritten notes? 11:54:08 12 A. These are things I've copied from the materials I've seen. 11:54:08 13 I would be glad to show it to you. I brought it here because 11:54:08 14 I thought you might ask me. 11:54:08 15 Q. Go ahead. 11:54:08 16 A. Dr. Patel noticed -- 11:54:08 17 Q. Question is did he notice any leg movements, pacing about? 11:54:08 18 A. He did not. He noted only anxiety in that connection, 11:54:13 19 some irritability, some mind racing. He didn't notice any 11:54:20 20 evidence of motor overt activity. 11:54:24 21 Q. Did he have akathisia symptoms before he was prescribed 11:54:26 22 the Paxil, sir? 11:54:27 23 A. He certainly had intense anxiety. 11:54:31 24 Q. And are you equating anxiety with akathisia, sir? 11:54:34 25 A. Well, it depends again on how you define it. Just for 460 11:54:39 1 clarity, I don't want to mislead you or the jury, my 11:54:42 2 definition of akathisia is primarily that it is a state of 11:54:47 3 tremendous inner restlessness and turmoil. It may be 11:54:51 4 accompanied, although I think it isn't always, by outward 11:54:59 5 motor evidences of the inner state which involves hand 11:55:02 6 tapping, pacing or what have you. 11:55:07 7 And I think that Don Schell certainly had an inner 11:55:16 8 turmoil before he was given any Paxil. 11:55:20 9 Q. Based upon the notes that Dr. Patel took? 11:55:23 10 A. Yes. 11:55:24 11 Q. And that would be the anxiety which you equate with 11:55:28 12 akathisia which you equate with inner turmoil? 11:55:31 13 A. Anxiety, he said his mind was racing a hundred miles an 11:55:37 14 hour, he wasn't sleeping. He was certainly very restless 11:55:41 15 overall. I don't know that restlessness -- maybe we better 11:55:47 16 consult Dr. Patel's record. Could I see that? 11:55:48 17 Q. He wasn't manic, was he? 11:55:51 18 A. Well, as a matter of fact, when a patient presents to me 11:55:58 19 and they are very anxious and they say that their minds are 11:56:02 20 racing and there is a serious sleep disturbance, those are 11:56:07 21 premonitory signs that sometimes, not always, will progress 11:56:16 22 into a mania. 11:56:17 23 It is a signal to be careful. 11:56:22 24 Q. The question was, was he manic in your view at the time he 11:56:24 25 saw Dr. Patel? 461 11:56:26 1 A. Not yet. 11:56:26 2 Q. And you're aware that mania is reported in the PDR for 11:56:32 3 Paxil as something that occurred during premarketing testing, 11:56:38 4 right? 11:56:39 5 A. I know it is in there. 11:56:40 6 Q. And you know that akathisia is mentioned as a 11:56:42 7 postmarketing report? 11:56:44 8 A. Way back there in the fine print. 11:56:48 9 Q. As is agitation, as is confusion, as is hallucinations, as 11:56:52 10 is shivering, as is agitation or anxiety, correct? 11:56:57 11 A. Yes. 11:57:05 12 Q. In your view, Ambien had nothing to do with the situation, 11:57:09 13 right? 11:57:09 14 A. I think it is extremely improbable. 11:57:12 15 Q. And did you read the Ambien labeling, by the way? 11:57:15 16 A. Yes. 11:57:27 17 Q. May I give you a copy? 11:57:31 18 A. Please. 11:57:44 19 Q. Go to the warning section and starting in the bottom of 11:57:57 20 the middle column, you see it says -- by the way, how do you 11:58:00 21 treat a warning on a package insert or direction circular 11:58:07 22 that you would read in the PDR? What does that mean to you? 11:58:10 23 A. I read it. I think about it. I try to put it in the 11:58:13 24 context of what I know about the illness I'm treating and try 11:58:17 25 to relate it to the patient before me. 462 11:58:18 1 Q. Do you take a warning -- treat that any differently from a 11:58:22 2 precaution, for example? 11:58:25 3 A. I tend to read them all. It is true that the way it is 11:58:31 4 presented in the PDR is that warnings come first. Warning 11:58:35 5 sounds a little more scary than a precaution. I think the 11:58:39 6 answer is yes, I would take it pretty seriously. 11:58:45 7 Q. And you read, I take it, when you reviewed this matter, 11:58:50 8 starting at the bottom of that middle column, "Worsening of 9 insomnia or the emergence of new thinking or behavior 11:58:58 10 abnormalities may be the consequence of a recognized 11:59:00 11 psychiatric or physical disorder"? 11:59:03 12 A. Yes. 11:59:03 13 Q. "Such findings have emerged during the course of treatment 11:59:06 14 with a sedative/hypnotic drugs, including Ambien"? 11:59:11 15 A. Yes. 11:59:11 16 Q. "Because some of the important adverse effects of Ambien 11:59:14 17 appear to be dose related, it is important to use the 11:59:17 18 smallest possible effective dose, especially in the elderly," 11:59:21 19 correct? 11:59:22 20 A. Correct. 11:59:23 21 Q. And how do we define elderly in the medical community, 11:59:28 22 sir? 11:59:29 23 A. My definition of elderly has changed as I have aged. 11:59:34 24 Q. As has all of ours. 11:59:35 25 A. Whether I would say like it or not, if you're over 65, 463 11:59:39 1 you're getting into some kind of elderly. 11:59:47 2 Q. At 60 would you change dose? 11:59:49 3 A. Let's say at 60 maybe he's latent elderly, incipient 11:59:55 4 elderly. 11:59:58 5 Q. Then it goes on to say in the right-hand column, "A 12:00:04 6 variety of abnormal thinking and behavioral changes have been 12:00:07 7 reported to occur in association with the use of 12:00:09 8 sedative/hypnotics. Some of these changes may be 12:00:13 9 characterized by decreased inhibition, e.g., aggressiveness 12:00:21 10 and extroversion that seemed out of character, similar to the 12:00:25 11 effects produced by alcohol and other CNS depressants. Other 12:00:30 12 reported behavioral changes have included bizarre behavior, 12:00:34 13 agitation, hallucinations and depersonalization. 12:00:41 14 "In primarily depressed patients, worsening of 12:00:44 15 depression, including suicidal thinking, has been reported in 12:00:47 16 association with the use of sedative/hypnotics." 12:00:52 17 And you read all of that, right? 12:00:54 18 A. I did. 12:00:54 19 Q. And you felt that was not relevant to this situation at 12:00:57 20 all, right? 12:00:57 21 A. I think it has some relevance. You have to balance it. 12:01:00 22 If you look at another part of this warning you will notice 12:01:05 23 down here on the first page of this, page 2710, at the bottom 12:01:15 24 of the right-hand column, it says, "Pharmacokinetics." It 12:01:23 25 describes a very short half-life of this particular drug, 464 12:01:34 1 half-life of something at most within the 2.6-hour range. 12:01:38 2 That means if he takes a dose, half of it is going to 12:01:41 3 be gone in a couple of hours. 12:01:44 4 Q. Well, you raise an interesting point, Doctor. When do you 12:01:47 5 take Ambien? 12:01:49 6 A. At bedtime. 12:01:50 7 Q. And you're aware that when the police were there that the 12:01:56 8 four victims were all in nightclothes, right? 12:01:57 9 A. Yes. 12:01:58 10 Q. And we have no idea when this happened, right? 12:02:02 11 A. No, we don't know exactly. Sometime in the night of the 12:02:06 12 12th, 13th. 12:02:08 13 Q. Right. 12:02:10 14 A. Early morning hours of the 13th, maybe, or very late at 12:02:13 15 night. 12:02:14 16 Q. We don't know? 12:02:15 17 A. We don't know. 12:02:16 18 Q. And maybe within 2.6 hours of having taken the pill, 12:02:20 19 right? 12:02:23 20 A. I suppose it is possible. 12:02:24 21 Q. Anybody's guess, right? 12:02:25 22 A. I suppose it is possible, although the amount -- well, as 12:02:28 23 I've told you, I'm not a pharmacological expert. I know that 12:02:35 24 there was some Ambien in his body. I seem to recall 11 12:02:39 25 nanograms in the coroner's blood analysis. I don't have the 465 12:02:48 1 impression that that's a lot. 12:02:50 2 Q. That's not your area of expertise, is it? 12:02:53 3 A. No. But my clinical experience with people that are going 12:02:55 4 to get into trouble with hypnotic drugs are people that 12:03:00 5 really take very large doses. And there's no way, I think, 12:03:04 6 to believe that this man took a whopping huge dose. 12:03:09 7 Q. Well, it says if you go down to the precautions section 12:03:13 8 that the recommended dosage in elderly is 5 milligrams, 12:03:19 9 right? 12:03:20 10 A. Yes. 12:03:21 11 Q. And the prescription was for 10 milligrams, right? 12:03:27 12 A. I think he was told to take 5 or 10 milligrams by 12:03:31 13 Dr. Patel. 12:03:34 14 Q. 5 or 10, or 10? 12:03:36 15 A. I believe it was -- well, let's look at his record. I 12:03:39 16 don't remember. 12:03:40 17 Q. Why don't you check your notes and see if you haven't made 12:03:42 18 a note of it. 12:03:47 19 A. No, I have no note. 12:03:48 20 Q. Go down the right-hand column there that we've been 12:03:51 21 talking about under Use and Depression. 12:03:54 22 A. I see it. 12:03:55 23 Q. And that's how it was used in this particular case or at 12:03:59 24 least that was the fact, right? 12:04:01 25 A. Yes. 466 12:04:01 1 Q. It says, "As with other sedative/hypnotic drugs, Ambien 12:04:06 2 should be administered with caution to patients exhibiting 12:04:09 3 signs or symptoms of depression. Suicidal tendencies may be 12:04:13 4 present in such patients and protective measures may be 12:04:16 5 required," correct? 12:04:18 6 A. Yes. And the next sentence, "Intentional overdosage is 12:04:23 7 more common in this group of patients." And in my 12:04:27 8 experience, people that are going to get confused or jazzed 12:04:31 9 up or delirious because of hypnotic drugs such as Ambien have 12:04:39 10 taken it in overdose. And there's no reason to believe this 12:04:41 11 man took an overdose based on what's in his blood. 12:04:49 12 Q. That's only discussed as a possibility, overdose with this 12:04:56 13 drug, right? 12:04:57 14 A. Yes. 12:05:07 15 Q. Would you agree that a person or patient's circumstances 12:05:09 16 could change suddenly so that a valid risk assessment, if you 12:05:14 17 will, could change in as short a period of time as an hour, 12:05:18 18 depending on what those circumstances might be? 12:05:21 19 A. That's absolutely true. 12:05:26 20 Q. We have no idea as we are here today as to whether some 12:05:30 21 precipitating event might have occurred at some time during 12:05:34 22 the evening of February 12th and the early morning of 12:05:36 23 February 13th, 1998, do we? 12:05:39 24 A. No, we don't. 12:05:52 25 Q. One of the things you want to do if you're performing a 467 12:05:54 1 psychological autopsy is to get all of the information that 12:05:58 2 you can get; is that right? 12:06:00 3 A. That's correct. 12:06:00 4 Q. Did you do that in this case? 12:06:01 5 A. Well, you will -- I don't know if you're about to bring up 12:06:04 6 the mysterious deposition of Mr. Nelson that I couldn't find 12:06:10 7 at the time of my deposition. Why don't you go ahead and ask 12:06:15 8 me the question? 12:06:16 9 I certainly looked at all of the information that 12:06:19 10 that Mr. Vickery sent me and there is paper evidence that I 12:06:24 11 told him that it was extremely important that we get all of 12:06:27 12 the psychiatric information we could about Mr. Schell with 12:06:31 13 respect to one oddity of behavior. 12:06:37 14 Q. You wanted to get all of his history, too, right? 12:06:41 15 A. As much as I could. 12:06:42 16 THE COURT: Mr. Preuss, we would break at this point 12:06:44 17 and let you pick this up at 1:15. 12:06:47 18 Ladies and gentlemen, we will adjourn for lunch until 12:06:49 19 1:15 p.m. Please remember the usual admonition. 12:06:53 20 Court will stand in recess. 12:06:55 21 (Trial proceedings recessed 12:00 12:06:58 22 and reconvened 1:20 p.m., May 23, 2001.) 13:27:52 23 THE COURT: I would remind you you are still under 13:27:52 24 oath, Dr. Maltsberger. 13:27:52 25 THE WITNESS: Yes. 468 13:27:52 1 Q. (BY MR. PREUSS) Good afternoon. 13:27:52 2 A. Good afternoon. 13:27:52 3 Q. Do you have your two expert reports there? 13:27:52 4 A. I think so. 13:27:52 5 Q. You outlined, I believe, in the examination by Mr. Vickery 13:27:52 6 what materials you reviewed prior to preparing these reports, 13:27:52 7 and the additional information you got on the second time. 13:27:52 8 You got the deposition transcripts of Dr. Suhany, 13:27:52 9 Dr. Buchanan and Dr. Hemphill, correct? 13:27:52 10 A. That's correct. 13:27:52 11 Q. Did you ever take a look at Dr. Bagnarello's records at 13:27:52 12 the time -- by the time you completed these reports? 13:27:52 13 A. No, sir. 13:27:52 14 Q. And how about Dr. Ray Lougar? 13:27:52 15 A. No, sir. 13:27:52 16 Q. And how about the employee's records and payroll history 13:27:52 17 of the plaintiff? 13:27:52 18 A. No. 13:27:59 19 Q. And I wasn't sure earlier whether you said you did or did 13:27:59 20 not review the deposition of Kevin Nelson. 13:28:01 21 A. Well, I seem to remember a little bit of material that I 13:28:06 22 think came from that deposition, and there was a note on some 13:28:09 23 of my cards before I was deposed that said, "Look again at 13:28:15 24 the Nelson deposition," but I can't find the Nelson 13:28:18 25 deposition in my office. If I had it, it has been thrown out 469 13:28:23 1 or mislaid. 13:28:31 2 And in any case, I have not relied on it in forming 13:28:35 3 my opinion and I have not discovered where it is if I ever 13:28:37 4 had it since my deposition. 13:28:39 5 Q. Did you review the deposition of Dr. Ogg -- Father Ogg? 13:28:45 6 A. I have read it since I came to Cheyenne. 13:28:48 7 Q. You hadn't read it before then and by the time you 13:28:50 8 prepared your report? 13:28:51 9 A. That's correct. 13:28:51 10 Q. And the deposition of Sherry McGrath? 13:28:53 11 A. I have not read it. 13:28:55 12 Q. Never read that? 13:28:55 13 A. No. 13:28:56 14 Q. Do you know who she is? 13:28:57 15 A. No. 13:29:04 16 Q. One of the things you want to do if you're doing a 13:29:07 17 psychological autopsy is to get all of the information. I 13:29:09 18 think we discussed that earlier today, right? 13:29:12 19 A. That's true. 13:29:13 20 Q. And you requested all the information that was available 13:29:20 21 from Mr. Vickery; is that right? 13:29:22 22 A. I did. 13:29:23 23 Q. But you didn't get the deposition of Sherry McGrath, for 13:29:26 24 example? 13:29:30 25 A. It certainly -- I have to answer no, it is not here, not 470 13:29:33 1 in my list and I don't recall who she is or ever having read 13:29:36 2 it. 13:29:37 3 Q. Did you read the police report? 13:29:40 4 A. Yes. 13:29:41 5 Q. Thoroughly? 13:29:42 6 A. I believe so. 13:29:45 7 Q. Anything in the police report that you found germane to 13:29:48 8 what may have happened that evening? 13:29:52 9 A. Well, in a general way, yes. I certainly relied on it for 13:30:00 10 a description of the bodies that were found. 13:30:04 11 Q. And where they were found? 13:30:05 12 A. Yes. 13:30:18 13 Q. Now, you would agree that Donald Schell was at a risk of 13:30:21 14 suicide on that evening, correct? 13:30:22 15 A. In view of the fact that he's dead, it seems obvious. 13:30:31 16 Q. And that Dr. Patel described him as being irritable; isn't 13:30:34 17 that right? 13:30:35 18 A. That's right. 13:30:41 19 Q. And somebody who has a major depression or depression of 13:30:46 20 the type that Don Schell had on that evening in February can 13:30:50 21 lead to violent acts, can it not, if it goes untreated? 13:30:59 22 A. Well, under some circumstances. It can if it degenerates 13:31:03 23 into a mania. 13:31:05 24 Q. If it continues to degenerate? 13:31:08 25 A. Yes, or if something else happens to worsen the patient's 471 13:31:13 1 condition. 13:31:14 2 Q. And it takes Paxil a while before it can work, right -- 13:31:18 3 A. Well -- 13:31:19 4 Q. -- to full effect? 13:31:22 5 A. The therapeutic effects -- 13:31:25 6 Q. Right, that's what I'm talking about. 13:31:27 7 A. -- are thought to require, according to the published 13:31:30 8 information, some days to take effect. But not everybody 13:31:34 9 responds in the same way to these drugs. I have had a 13:31:37 10 patient not with Paxil but with Prozac who says to me, "None 13:31:43 11 of the doctors will believe it because they think it is just 13:31:46 12 a placebo effect, but I can tell within half a day when I go 13:31:51 13 on Prozac that it makes a terrific difference." 13:31:57 14 Q. Do you expect that -- 13:31:58 15 A. So some people respond much more rapidly than others, and 13:32:02 16 some people can develop side effects more rapidly. There are 13:32:07 17 idiosyncratic responses. 13:32:09 18 Q. What's the normal period of therapeutic benefit from 13:32:13 19 Paxil, as you understand it to be? 13:32:15 20 A. You mean how long it takes it to go into action? 13:32:18 21 Q. To be fully effective at a therapeutic level. 13:32:21 22 A. Therapeutically, anywhere from one to six weeks. 13:32:25 23 Q. You wouldn't expect it to be at full therapeutic effect 13:32:30 24 after two days, would you? 13:32:31 25 A. No. 472 13:32:39 1 Q. Now, in reviewing the history you're aware that Don Schell 13:32:42 2 had Prozac on two occasions, correct? 13:32:45 3 A. Well, he certainly had it in 1989 and in 1990, and there 13:32:54 4 are references in Dr. Hemphill's deposition to his having 13:32:58 5 taken it earlier. So I believe there were two occasions. 13:33:02 6 Q. Two occasions, right. And on neither of those 13:33:09 7 occasions -- before I ask that question, how long a period of 13:33:09 8 time was he on it, on each of those two occasions? 13:33:14 9 A. Well, it would appear that it was some weeks. It is not 13:33:16 10 clear from the earlier records how long, but certainly more 13:33:20 11 than a few days. 13:33:22 12 Q. And he was not akathisic on either of those occasions, was 13:33:29 13 he? 13:33:30 14 A. Well, he was anxious but on both of the occasions when he 13:33:33 15 was prescribed Prozac, he was also given a benzodiazepine at 13:33:36 16 the same time which would have protected him from the further 13:33:39 17 agitating effects of that drug. 13:33:41 18 Q. So the answer is that during the periods of time that he 13:33:43 19 had Prozac prior to February of 1998 that he was not 13:33:48 20 akathisic, in your view? 13:33:50 21 A. Well, I think that under Dr. Suhany's care, in spite of 13:33:54 22 getting some Ativan, that I would say he was akathisic. 13:35:14 23 Dr. Suhany said he suffered from some fairly subjective 13:35:14 24 severe anxiety and also what he called somatic anxiety, 13:35:14 25 bodily anxiety. 473 13:35:14 1 Now, I would understand that to mean that there was 13:35:14 2 something like restlessness or foot tapping or pacing or some 13:35:14 3 outward evidence of agitation. 13:35:14 4 Now, I don't know -- I think Dr. Suhany did not 13:35:14 5 conclude that this was akathisia. But -- 13:35:14 6 Q. In fact, he said it was not, didn't he? 13:35:14 7 A. I think so. But I disagree. I mean, the data is there 13:35:14 8 for calling it akathisia. 13:35:14 9 Q. So reasonable physicians could differ on a matter like 13:35:14 10 that, is that what you're saying? 13:35:14 11 A. Fair enough, yes. 13:35:14 12 Q. And with respect to the first occasion, that was under 13:35:14 13 Dr. Hemphill's care? 13:35:14 14 A. I believe so. 13:35:14 15 Q. The complaints were what under that? 13:35:21 16 A. Well, I don't have a note but by -- in fairly short order 13:35:25 17 in 1989 he was known to have had a sleep disturbance, 13:35:32 18 concentration difficulty, morbid ideas and crying. And I 13:35:37 19 have a note also -- 13:35:39 20 Q. That was his condition when he was seen by Dr. Hemphill, 13:35:43 21 right? 13:35:43 22 A. That's correct. 13:35:44 23 Q. And didn't Mr. Schell quit the medication on his own? 13:35:50 24 A. The first time he was given it I believe he did. 13:35:52 25 Q. Right. And because he said he was tired was one of the 474 13:35:55 1 things -- 13:35:56 2 A. Well, he said he didn't work or something. He told 13:35:59 3 Dr. Hemphill that at a party. It is a little unclear -- 13:36:04 4 Q. Didn't he tell him at the party he had sexual dysfunction 13:36:07 5 and it made him tired and so he quit and he felt better? 13:36:14 6 A. I think that's what Dr. Hemphill inferred. There was some 13:36:17 7 vague statement that Mr. Schell made to the doctor that the 13:36:21 8 doctor thought that's what it meant. 13:36:26 9 Q. On either of those two occasions Mr. Schell didn't exhibit 13:36:29 10 suicidal or homicidal symptoms or ideations? 13:36:35 11 A. That's correct. 13:36:36 12 Q. With respect to Ambien, sir, that was the first time he 13:36:39 13 had been on that medication? He had no prior history on 13:36:42 14 that, as far as you know, right? 13:36:44 15 A. So far as I know. 13:36:45 16 Q. Now, you commented earlier this morning about an affidavit 13:36:51 17 or a declaration of Dr. Cole? 13:36:54 18 A. Yes. 13:36:55 19 Q. And you said you read that. Now, that was in a legal 13:36:59 20 matter, a lawsuit, right? 13:37:03 21 A. I believe it was in another case of Mr. Vickery's. 13:37:06 22 Q. How many cases have you agreed to help Mr. Vickery on? 13:37:10 23 A. Three in all, including this one. 13:37:12 24 Q. And is Dr. Healy on any of the other cases, as far as you 13:37:18 25 know, as a fellow expert? 475 13:37:30 1 A. I couldn't say for sure. 13:37:31 2 Q. You don't know? 13:37:32 3 A. In all honesty I can't recall today. He might be, but I 13:37:37 4 remember in some of the other cases having read some of his 13:37:41 5 writings, but I am pretty confident I haven't seen any 13:37:46 6 deposition by Dr. Healy or any affidavits or interrogatories 13:37:51 7 or anything. 13:37:52 8 Q. And you've never discussed it with him, whether he's an 13:37:55 9 expert on any of these other cases? 13:37:57 10 A. That's right. 13:37:57 11 Q. And you realize that Dr. Cole in the Miller case is an 13:38:02 12 expert retained such as you are on that case by Mr. Vickery? 13:38:06 13 A. Well, I'm somewhat vague about what his status is in that 13:38:10 14 case. I understand that for reasons of health he's -- he 13:38:14 15 doesn't want to get involved in trials or depositions, but it 13:38:20 16 is surely the case he was prepared to give Mr. Vickery that 13:38:23 17 declaration to which you refer in the Miller matter. 13:38:27 18 Q. And that case has nothing to do with Paxil, right? That 13:38:32 19 has to do with Zoloft? 13:38:34 20 A. So I believe. 13:38:35 21 Q. And you've never spoken to Dr. Cole about Paxil, have you? 13:38:38 22 A. Not that I recall. 13:38:43 23 Q. And you don't know what his opinions may be about Paxil, 13:38:46 24 do you? 13:38:46 25 A. Not specifically, sir. 476 13:38:48 1 Q. Okay. You indicated that you wrote out in longhand at a 13:39:00 2 deposition what you would consider a warning that might be 13:39:03 3 appropriate for Paxil; is that right? 13:39:05 4 A. Yes, sir. 13:39:07 5 Q. And you would agree that depression is a disease that 13:39:13 6 affects millions of people in this country? 13:39:13 7 A. Oh, yes. 13:39:13 8 Q. And that depressed people can commit suicide? 13:39:16 9 A. Oh, yes. 13:39:19 10 Q. And that's true if they're on medications or not, correct? 13:39:23 11 A. Yes. 13:39:25 12 Q. And as a physician, your effort is to try to treat 13:39:30 13 depression as best you can, so thereby reduce the risk of 13:39:33 14 suicide? 13:39:34 15 A. That's right. 13:39:41 16 Q. And one tool you have to do that is antidepressant 13:39:45 17 medications such as SSRIs, correct? 13:39:48 18 A. Absolutely. 13:39:49 19 Q. And with respect to your label, you certainly wouldn't 13:39:51 20 want to put anything in the label that wasn't established by 13:39:54 21 reasonable scientific proof, would you? 13:39:57 22 A. Oh, I might. I agree with Dr. Yamada that what goes into 13:40:02 23 these labels is a matter of clinical judgment and when there 13:40:05 24 is reasonable -- good reasons to believe that a drug may be 13:40:10 25 harmful, that's all it takes for the FDA to put the label in. 477 13:40:14 1 And I think a label belongs there. 13:40:17 2 Q. Now, if the evidence isn't there, Doctor -- and I know 13:40:19 3 what your views are on it. But assume the evidence isn't 13:40:23 4 there. There would be a danger, would there not, that people 13:40:26 5 that could benefit from a medication that can help prevent 13:40:29 6 suicide might not take it or have it prescribed by a doctor? 13:40:33 7 Would you agree with that? 13:40:34 8 A. I think it is a very far-out and incorrect hypothesis but 13:40:41 9 I have to say yes the way you frame it. 13:40:43 10 Q. All right. And with respect to your label -- let's assume 13:40:46 11 your label is there, all right? You would have the knowledge 13:40:53 12 in your head and you wouldn't need the label, right? In 13:40:56 13 other words, you, because given your views, you've told us 13:40:59 14 what you do with a patient and you wouldn't need to have a 13:41:01 15 special label yourself personally? 13:41:03 16 A. I'm already doing in my practice what the label suggests, 13:41:07 17 yes. 13:41:07 18 Q. So you could do it fine without the label? 13:41:09 19 A. Yes. 13:41:09 20 Q. So you would make an assessment of a patient and determine 13:41:14 21 whether or not that patient was suicidal or homicidal, right? 13:41:18 22 A. Yes. 13:41:18 23 Q. And even with your knowledge of the information you put in 13:41:22 24 the insert here or the proposed labeling change, if you will, 13:41:26 25 you would go ahead and prescribe it if you determined that 478 13:41:30 1 there was no risk there, correct, and take whatever steps you 13:41:35 2 felt would be appropriate like a coprescription? 13:41:37 3 A. Well, it would depend on the case. 13:41:39 4 Q. Right. 13:41:40 5 A. There would be some patients I would put straight into the 13:41:43 6 hospital and not write any prescriptions. 13:41:45 7 Q. It would be an individual assessment, right? 13:41:47 8 A. Absolutely. 13:41:53 9 Q. So assume the situation is there, you would read the 13:41:56 10 label, make an assessment whether the person was homicidal or 13:42:00 11 suicidal and proceed to write the prescription? 13:42:05 12 A. Not in the way the present labeling suggests. I would 13:42:08 13 start out with half doses. If there was any anxious 13:42:11 14 component, I would cover it with benzodiazepine. 13:42:13 15 Q. You indicated you had your own procedures and I 13:42:15 16 acknowledge that. 13:42:17 17 A. Yes. 13:42:18 18 Q. But you would go ahead and prescribe in what you felt was 13:42:20 19 the appropriate manner? 13:42:22 20 A. Let me give you this: I have and probably will again. If 13:42:25 21 people come in and say they're having transient suicidal 13:42:30 22 thoughts, that would not stop me from giving them an SSRI. 13:42:33 23 Q. And other physicians that have patients that are depressed 13:42:36 24 have to make their own individual decisions about whether the 13:42:40 25 individual before them, their patient, is homicidal or 479 13:42:45 1 suicidal? 13:42:46 2 A. That's true; however, I'm sure you would agree that 13:42:48 3 everybody in this room would want the doctor to be as fully 13:42:51 4 informed as possible. 13:42:52 5 Q. And one of the things the doctor would want to know as 13:42:56 6 much as possible about is the history of the patient with 13:42:59 7 respect to depression, anxiety, anything that may be related 13:43:04 8 to mental illness in the past, right? 13:43:07 9 A. Absolutely. 13:43:09 10 Q. It is very important for you as a physician to do your 13:43:12 11 best job is to get all the information you can from your 13:43:15 12 patient; isn't that right? 13:43:16 13 A. No doubt about it. 13:43:17 14 Q. And the more you get it and the sooner you get it, the 13:43:20 15 better chance you have of guiding that patient through to a 13:43:24 16 successful resolution of their disease, right? 13:43:27 17 A. I would agree with that. 13:43:45 18 Q. You're aware Dr. Patel made an assessment that Don Schell 13:43:48 19 was not suicidal or homicidal, correct? 13:43:53 20 A. That's right. 13:43:53 21 Q. And present during this entire meeting was not only Donald 13:43:56 22 Schell but his wife, Rita Schell, right? 13:44:00 23 A. That's right. 13:44:10 24 Q. Now, what do you tell your patients -- assuming in the 13:44:13 25 situation that you indicated maybe even have transient 480 13:44:16 1 suicidal thoughts -- did I recall that correctly? 13:44:20 2 A. Yes. 13:44:21 3 Q. -- you might still go ahead and prescribe an SSRI? 13:44:23 4 A. It is conceivable. 13:44:24 5 Q. And what would you tell the patient to be on the alert 13:44:27 6 for? 13:44:28 7 A. I would say that for most people these drugs are very 13:44:33 8 helpful and that while it is unlikely that they're going to 13:44:37 9 feel any better on account of the drug inside of a week, they 13:44:41 10 might get lucky, it could be sooner, but sometimes it takes 13:44:44 11 longer, maybe two or three weeks, even, that they will have 13:44:50 12 to wait and that I'm there to support them and help them 13:44:55 13 while we wait for the time that the drug begins to help. 13:44:59 14 But in the meantime, we have to be very careful 13:45:03 15 together in case there's any worsening of the symptoms. 13:45:07 16 Q. And call you if the symptoms worsen, right? 13:45:09 17 A. I tell them that -- typically when I prescribe an SSRI, I 13:45:13 18 say whether they feel better or worse, I want to talk to them 13:45:17 19 on the phone the next day. And I'm very careful about that 13:45:20 20 in the first week. 13:45:21 21 I always see people every week in the first six 13:45:25 22 weeks. I am somewhat more cautious than most doctors about 13:45:30 23 it because I know what these things can do. But close 13:45:34 24 monitoring is the order of the day. 13:45:37 25 Q. And would you consider a patient that we've been 481 13:45:39 1 discussing, one with transient, I think, suicidal thoughts, 13:45:42 2 to be a high-risk patient? 13:45:44 3 A. Well, it implies some risk. That by itself does not 13:45:49 4 necessarily put them in the high-risk group. There are 13:45:52 5 plenty of people, probably people in this very courtroom, who 13:45:56 6 will every day maybe have a transient thought that they 13:45:59 7 wished they were dead, but that doesn't really automatically 13:46:05 8 put you into a high-risk group unless there's some other 13:46:08 9 things that go with it. 13:46:10 10 Q. Was Don Schell in a high-risk group? 13:46:12 11 A. Not because he had suicidal or homicidal thoughts, but the 13:46:20 12 very troubling thing to me about him is the quality of the 13:46:23 13 depression. It was an agitated, anxious depression with 13:46:28 14 racing thoughts, a severe sleep disturbance, all of those 13:46:35 15 things being indicators that the patient may get worse unless 13:46:38 16 protected by a sedative, a tranquilizer such as Ativan. 13:46:48 17 And indeed, I think he did need an antidepressant, 13:46:51 18 but not a raw, unprotected antidepressant of the SSRI kind 13:46:56 19 and not immediately in a full dose. 13:47:00 20 Q. So high risk, right? 13:47:05 21 A. With sufficient risk to require close watch. 13:47:08 22 Q. High risk, right, Doctor? 13:47:10 23 A. Not high. 13:47:17 24 Q. Now, you are an expert in the Smith case, right? 13:47:20 25 A. That's right. 482 13:47:21 1 Q. And you wrote out another warning in that case, didn't 13:47:25 2 you? 13:47:25 3 A. I believe I did. 13:47:26 4 Q. And it is different from this warning, isn't it? 13:47:29 5 A. I expect it is. 13:47:32 6 Q. So is there any reason why it is different? 13:47:34 7 A. Well, there was considerable lapse of time between the 13:47:41 8 writing of the two warnings. I didn't remember exactly what 13:47:46 9 was in the warning that the attorneys for the Smith case 13:47:52 10 asked me to do so I had to make it up de novo when you folks 13:47:57 11 asked for another warning. I expect they are different. 13:48:01 12 Q. So you took -- had your deposition taken in the Miller 13:48:04 13 case, you wrote out one warning, you didn't retain a copy of 13:48:08 14 it; you then were deposed on another case and you wrote out 13:48:13 15 another warning? 13:48:14 16 A. Yes, but I believe the warnings are very likely similar in 13:48:17 17 their tenor. 13:48:22 18 Q. Let me give you a copy in the matter of Smith versus 13:48:26 19 Phizer, deposition of Dr. Maltsberger, October 9th, 2000, and 13:48:31 20 refer you to page 42. You see on line 7? 13:48:51 21 A. I do. 13:48:52 22 Q. You say, "Warning: Zoloft and other SSRI drugs of its 13:48:56 23 class are known in some instances to cause akathisia and 13:48:58 24 excitement that can promote assaultiveness and suicide in 13:49:02 25 vulnerable individuals. Close supervision is indicated for 483 13:49:05 1 all persons for whom it is prescribed," right? 13:49:09 2 A. Yes, I think that's very close in sense to the one I wrote 13:49:12 3 for you. 13:49:15 4 Q. Have you written out any other ones in other depositions? 13:49:18 5 A. No. I might have to sometime, but I haven't yet. Maybe 13:49:28 6 it will be a new career. 13:49:30 7 Q. Maybe it will, Doctor. 13:49:38 8 Getting back to what you want your patients to do, I 13:49:43 9 want to show you 3-A and ask you to read the left-hand column 13:49:47 10 and the right-hand column of the area that says, "Keep your 13:49:51 11 doctor informed." Feel free to look at any other part if you 13:50:02 12 want. 13:50:02 13 A. You want me to read both of these pages? 13:50:04 14 Q. Yes, if you would. 13:50:06 15 A. Sure. "Keep your doctor informed. As you continue in 13:50:09 16 your treatment program, keep your doctor informed about how 13:50:13 17 it's going. When taking medication, follow your doctor's 13:50:17 18 directions exactly. Do not hesitate to contact your doctor 13:50:21 19 about any side effects you may be feeling. If needed, 13:50:25 20 another more suitable medication can always be found. 13:50:32 21 "If you're not happy with your progress, discuss 13:50:32 22 with your doctor whether a change in antidepressant 13:50:35 23 medication or psychotherapy may be helpful. Understanding is 13:50:39 24 the key to success. Following your doctor's treatment advice 13:50:44 25 and taking your medication as prescribed will help you make 484 13:50:48 1 the most of your therapy. 13:50:51 2 "As treatment progresses, tell your doctor if your 13:50:54 3 symptoms are improving or worsening and how your current 13:50:57 4 medication is making you feel. Above all, call your doctor 13:51:04 5 right away if you start to have thoughts about harming 13:51:06 6 yourself in any way." That's in italics. 13:51:10 7 Q. That's good advice, isn't it, Doctor? 13:51:13 8 A. That's good advice. "Seek the support of family and 13:51:16 9 friends, too. They can provide that extra boost of 13:51:18 10 confidence you might need to help break free of depression. 13:51:21 11 "Finally, be patient. The factors that caused your 13:51:25 12 depression are complex and do not change overnight but they 13:51:29 13 can be changed. Do the best you can each day. You will find 13:51:33 14 that small triumphs add up soon enough." 13:51:39 15 Q. Thank you, Doctor. That's good advice, isn't it? 13:51:42 16 A. That's good advice. 13:51:43 17 MR. PREUSS: I ask that 3-A be admitted. 13:51:46 18 THE COURT: Any objection? 13:51:47 19 MR. VICKERY: I think it is in already. I offered it 13:51:49 20 in that global list of Plaintiffs' exhibits. 13:51:52 21 THE COURT: I believe you did. 13:51:55 22 THE WITNESS: It has a sticker. 13:51:57 23 THE COURT: I think you said 3 and it is -- 13:52:01 24 MR. VICKERY: 3-B is the pen. 13:52:03 25 THE COURT: Nevertheless, it is received again. 485 1 (Plaintiff Exhibit 3-A received in evidence.) 13:52:22 2 MR. PREUSS: No further questions. 13:52:23 3 THE COURT: Very well. 13:52:24 4 Redirect? 13:52:25 5 MR. VICKERY: Yes, thank you, Your Honor. 6 REDIRECT EXAMINATION 13:52:26 7 Q. (BY MR. VICKERY) Dr. Maltsberger, you were just asked 13:52:30 8 about the warning that you drafted on the request of Phizer's 13:52:33 9 lawyers in the Smith case in your deposition? 13:52:37 10 A. Yes, sir. 13:52:37 11 Q. Was the drug involved in that case an SSRI drug? 13:52:40 12 A. Yes. 13:52:40 13 Q. Which one? 13:52:45 14 A. Zoloft. 13:52:46 15 Q. Did the person who took that drug assault their family 13:52:49 16 members? 13:53:01 17 A. I can't remember. 13:53:02 18 Q. Let me jog your recollection. Mr. Smith in Kansas. Do 13:53:05 19 you recall whether or not he assaulted his wife and two 13:53:07 20 children? 13:53:08 21 A. He did not, I think. 13:53:11 22 Q. Do you recall whether he committed suicide? 13:53:14 23 A. Yes, he did. 13:53:15 24 Q. I want to see if I can jog your recollection about another 13:53:18 25 one. Counsel asked you have you been asked by a lawyer to 486 13:53:24 1 draft another warning. Do you recall Eli Lilly's lawyer 13:53:27 2 asking you to draft a warning in the Espinoza case up in 13:53:32 3 Vermont? 13:53:33 4 MR. PREUSS: Object as leading and argumentative, 13:53:36 5 Your Honor. 13:53:37 6 THE COURT: A little leading. 13:53:38 7 Go ahead and answer the question. 13:53:40 8 A. I only remember writing two warnings. 13:53:43 9 Q. (BY MR. VICKERY) What was the drug in that case? 13:53:45 10 A. That's -- the Espinoza case was Prozac. 13:53:52 11 Q. Can you tell the jury what Mrs. Espinosa did on Prozac? 13:53:56 12 MR. PREUSS: Object as irrelevant, Your Honor. 13:53:58 13 MR. VICKERY: Judge, he opened this door with this 13:54:00 14 testimony about the other cases, not me. 13:54:02 15 THE COURT: Overruled. 13:54:03 16 A. Yes, she became quite disinhibited, behaved in an 13:54:10 17 uncharacteristic way. She got agitated. She went and broke 13:54:15 18 into her -- into a man's house at whom she was angry because 13:54:21 19 she wanted him for a boyfriend and he wasn't interested and 13:54:24 20 ransacked his house. 13:54:26 21 She had outbursts of anger and aggression at her 13:54:33 22 neighbors and really behaved in a very disturbed way. 13:54:37 23 Q. And what did she end up doing at the very end? 13:54:39 24 A. She killed herself. 13:54:40 25 Q. And did she kill her two children, too? 487 13:54:42 1 A. Yes, she did. 13:54:44 2 Q. Now, when and why did you start changing your prescribing 13:54:49 3 habits with respect to these drugs and start being more 13:54:53 4 concerned about covering them with benzodiazepines and 13:54:55 5 titrating the dose, that sort of thing? 13:54:58 6 A. I have been doing that long before I ever heard of you. 13:55:14 7 Q. Mr. Preuss asked you a few minutes ago about the 13:55:17 8 consequences of a warning like the one that you recommended, 13:55:20 9 what would happen and I think he said wouldn't people maybe 13:55:23 10 forego getting care. 13:55:26 11 Do you believe that with that kind of warning that 13:55:29 12 primary care doctors might decide maybe they don't want to 13:55:34 13 prescribe these drugs and refer them to someone like you? 13:55:38 14 A. Well, they might. And I don't think that would be such a 13:55:42 15 bad idea, to tell you the truth. It is not that I don't have 13:55:45 16 plenty of patients, but I don't think that people should 13:55:48 17 prescribe these drugs if they aren't fully informed and have 13:55:53 18 some special training in how to assess how a patient looks 13:55:57 19 that is on the verge of moving into an anxious crisis or a 13:56:01 20 frenzy crisis. 13:56:04 21 With the present state of affairs, 70 percent of the 13:56:07 22 prescriptions for these drugs in the United States are 13:56:10 23 written by nonpsychiatrists and the doctors that are writing 13:56:17 24 the drugs, GPs, internists, sometimes pediatricians have no 13:56:25 25 more information than what Mr. Haase talked to us about here 488 13:56:28 1 the other day. They aren't being properly warned. They 13:56:31 2 don't know for a small subpopulation these drugs can be 13:56:34 3 deadly. 13:56:36 4 Q. Okay. Let me follow up on a different subject. You were 13:56:39 5 asked about Ambien and you remember you were showed the 13:56:41 6 Ambien package insert? 13:56:44 7 A. Yes, that's right. 13:56:44 8 Q. And do you recall in there where it said that the problems 13:56:47 9 were dose related? 13:56:50 10 A. In the package insert, yes. 13:56:52 11 Q. And is that what you were saying when I was talking to you 13:56:55 12 on the direct examination about Ambien, that that comports 13:56:58 13 with your experience? 13:56:59 14 A. Yes, that's right. 13:57:00 15 Q. Now, Mr. Preuss made a point a minute ago that Mr. Schell 13:57:06 16 did not have Ambien before. 13:57:10 17 A. So he did. 13:57:10 18 Q. Did he have other sedative medications before? 13:57:13 19 A. Yes, he had had several of them, but most notably he had 13:57:20 20 had Ativan which is a benzodiazepine, and he had had it, 13:57:23 21 indeed, in substantial doses before, as much as 6 milligrams 13:57:28 22 a day which would be enough to put all of the lawyers asleep. 13:57:35 23 That's a whopping big dose. With that he was able to keep 13:57:39 24 somewhat quiet. 13:57:41 25 Q. Did you ever see any evidence that he had bad reactions to 489 13:57:45 1 sedatives? 13:57:47 2 A. On no account. And I may add that because he had been 13:57:57 3 repeatedly exposed to a benzodiazepine, I think it makes it 13:58:02 4 highly unlikely that he had a bizarre pathological response 13:58:10 5 to Ambien, because although Ambien is technically not a 13:58:14 6 benzodiazepine, it is chemically similar. It is simply like 13:58:19 7 the benzodiazepines, except that it only puts you to sleep 13:58:22 8 and it doesn't have a soothing quality. 13:58:26 9 Q. Okay. One more area of cross -- redirect, I mean, and I 13:58:30 10 think I'm done. 13:58:31 11 Do you still have the Donovan study up there in front 13:58:34 12 of you? 13:58:37 13 A. Yes, sir. 13:58:39 14 Q. How many patients were involved in that study? 13:58:44 15 A. There were 2,776 consecutive people who hurt themselves on 13:58:51 16 purpose. 13:58:53 17 Q. Now, if one were weighing in the evidence -- I understand 13:58:56 18 there are lots of different places where you would put 13:58:59 19 emphasis on weighing scientific literature, right? 13:59:04 20 A. Yes. 13:59:04 21 Q. Like who wrote it, for example? 13:59:06 22 A. Yes. 13:59:06 23 Q. Who funded it, for example? 13:59:08 24 A. Yes. 13:59:09 25 Q. The publication that it is in? 490 13:59:11 1 A. Quite right. 13:59:12 2 Q. Incidentally, this publication, is this an American 13:59:17 3 journal? 13:59:18 4 A. It is the British Journal of Psychiatry, worldwide 13:59:21 5 recognized as a very fine journal, but most American 13:59:25 6 psychiatrists don't see it. And it would be a very unusual 13:59:28 7 GP or internist or other kind of doctor that would ever see 13:59:35 8 this. You find it in medical libraries if you go digging for 13:59:42 9 it. 13:59:42 10 Q. Was it surprising I am the one that called it to your 13:59:45 11 attention even though you have an interest in suicide? 13:59:48 12 A. No, you and I -- I began work on this case with you in 13:59:55 13 late 2000, which was about the time this appeared. This 14:00:04 14 article appeared sometime in the year 2000. 14:00:07 15 Q. Now, is one of the factors that you would use in 14:00:10 16 determining what weight to give to a scientific study how 14:00:15 17 many people were in the study; in other words, were there 14:00:18 18 enough to make a meaningful assessment of a problem? 14:00:21 19 A. Absolutely. 14:00:22 20 Q. And as you weigh just on that criteria alone, the Donovan 14:00:26 21 study up against the Verkes study with 91 patients, only 19 14:00:31 22 of whom finished the study, on that criteria which one has 14:00:36 23 the greater weight? 14:00:37 24 MR. PREUSS: Objection, Your Honor, no foundation. 14:00:39 25 The Verkes study is not listed on his -- he hasn't testified 491 14:00:43 1 about it. Hasn't been brought out. 14:00:45 2 THE COURT: Let's find out if Dr. Maltsberger knows 14:00:48 3 firsthand -- 14:00:50 4 MR. VICKERY: About the Verkes? 14:00:51 5 Q. (BY MR. VICKERY) Have you read the Verkes study? 14:00:53 6 A. Yes, sir, I have. 14:00:53 7 Q. And can you tell us how many patients began the study and 14:00:56 8 how many were there when the year period was over? 14:00:59 9 A. I think they started out with a hundred. Then 91 actually 14:01:03 10 got into the trials. But for reasons unknown all but about 14:01:09 11 19 had dropped out by the end of the study. 14:01:14 12 Q. So if you're weighing in a study and you're comparing one 14:01:17 13 that has 2,776 patients and another that has 19, at least 14:01:23 14 insofar as that criterion which one do you give the greater 14:01:27 15 weight to? 14:01:30 16 A. Well, I, speaking just as a general psychiatrist, not as 14:01:33 17 an epidemiologist, would certainly pay more attention to the 14:01:39 18 Donovan study. That's the one about deliberate self harm 14:01:43 19 that shows how Paxil has four times the rate of self injury 14:03:20 20 in comparison to an old-fashioned tricyclic. I would give 14:03:20 21 the Donovan study a good deal more attention. 14:03:20 22 Now, I was questioned extensively by Mr. Preuss today 14:03:20 23 and he brought it out quite clearly -- 14:03:20 24 THE COURT: I don't think this is responsive. You go 14:03:20 25 ahead and ask the questions. 492 14:03:20 1 MR. VICKERY: Thank you, Your Honor. I will. 14:03:20 2 Q. (BY MR. VICKERY) Mr. Preuss asked you about your own 14:03:20 3 training and experience in psychotherapy or talking therapy? 14:03:20 4 A. Yes. 14:03:20 5 Q. Tell us whether or not there is published literature to 14:03:20 6 support the notion that the people that do the best on SSRI 14:03:20 7 drugs are people who get it in conjunction with 14:03:20 8 psychotherapy. 14:03:20 9 A. I believe there are such studies and it is generally 14:03:20 10 accepted in my field. 14:03:20 11 Q. How much time do you as a psychotherapist spend with a 14:03:20 12 patient in individual psychotherapy sessions? 14:03:20 13 A. About 50 minutes. 14:03:20 14 Q. Do you see in his deposition where Dr. Suhany says he 14:03:20 15 spends roughly an hour with patients? 14:03:20 16 A. Yes. 14:03:20 17 Q. Do you see where he spent 18 to 21 different time periods 14:03:20 18 with Mr. Schell? 14:03:20 19 A. I did. 14:03:20 20 Q. Now do you get to know a patient -- or how well do you get 14:03:20 21 to know a patient if you spend that amount of time with them 14:03:20 22 one on one? 14:03:20 23 A. The first thing you have to do is show the patient that 14:03:27 24 you're on their side and that you are interested and that you 14:03:27 25 want to know about them. And people aren't going to tell you 493 14:03:29 1 anything if they don't like you or they don't trust you. 14:03:32 2 That's the first step, is to establish a relationship of 14:03:43 3 respect and trust. 14:03:44 4 When the patient arrives at that moment, if the 14:03:47 5 doctor has earned it -- and I'm sorry to say we don't all -- 14:03:51 6 but if the doctor has earned it, the patient is more than 14:03:53 7 likely to tell you the truth. 14:03:55 8 Q. If you spend 18 to 21 hours with a man over the course of 14:03:58 9 a year in therapy, as Dr. Suhany did, would you get to know 14:04:02 10 him pretty well? 14:04:03 11 A. I would think so. 14:04:09 12 Q. Would you get to know, for example, whether or not he had 14:04:11 13 family problems or other stresses in his life? 14:04:14 14 A. That would certainly be the focus of my attention as his 14:04:17 15 doctor, what are the troubles, you know, what are your 14:04:21 16 troubles. 14:04:23 17 Q. If there was any kind of a long-term chronic problem, 14:04:26 18 particularly one that could lead to violence or suicide, do 14:04:30 19 you think that a doctor that spent that kind of time with 14:04:33 20 them that Dr. Suhany did would be able to ferret it out in 14:04:37 21 that amount of time? 14:04:38 22 A. I would certainly think so, and it would be part of 14:04:42 23 Dr. Suhany's responsibility with a patient to take that 14:04:48 24 history, you know, what has your life been in the past, what 14:04:55 25 have the worst times been like. 494 14:04:57 1 Q. I have one final question. Mr. Preuss asked you about Don 14:05:00 2 Schell's condition when he first came in to see Dr. Patel and 14:05:04 3 you said his mind was racing already? 14:05:07 4 A. That's right. 14:05:07 5 Q. If that's the case, then why is it that you blame the 14:05:10 6 Paxil that he took for triggering his homicides and suicide? 14:05:15 7 A. This is not the first time in Mr. Schell's life that he 14:05:20 8 had said things like that. There were -- sometime way back 14:05:28 9 in the past he said where he felt as though his head was in a 14:05:31 10 funny place on his shoulder. 14:05:33 11 He had anxious experiences and that in itself, by 14:05:43 12 itself, does not tell me that if his mind was racing. 14:05:48 13 Hundreds of patients have racing minds. That in itself is 14:05:53 14 not necessarily a sign that the patient is cascading down 14:05:57 15 into a terrible frenzy or mania. But it should alert the 14:06:02 16 doctor that this is already a very anxious man and you don't 14:06:07 17 want to do anything to make it worse. 14:06:12 18 MR. VICKERY: That's all I have on redirect, Your 14:06:13 19 Honor. 14:06:14 20 THE COURT: Recross? 21 RECROSS-EXAMINATION 14:06:16 22 Q. (BY MR. PREUSS) With respect to Dr. Suhany, 14:06:20 23 Dr. Maltsberger, did you take a look at the last entry? 14:06:30 24 A. Of what? 14:06:31 25 Q. Of his records. 495 14:06:33 1 A. I've not seen his records. I've only read his deposition. 14:06:36 2 Q. Wasn't the last entry read into the deposition, or don't 14:06:38 3 you remember that? 14:06:39 4 A. I don't remember. I'll be glad to look at it again. 14:06:41 5 Q. The last thing on it you remember was recommended call 14:06:45 6 back in two months? 14:06:46 7 A. Yes. 14:06:46 8 Q. And that never happened, did it? 14:06:48 9 A. Well, I don't think it did, but it doesn't surprise me, 14:06:51 10 Mr. Preuss. Lots of people when they feel better, even if a 14:06:55 11 doctor has told them to call back, they don't do it. How 14:06:59 12 many times have people in this room been told, "Be sure you 14:07:03 13 take ten days' worth of your antibiotic," but they feel 14:07:07 14 better after they've taken a week and they throw out the 14:07:10 15 rest. 14:07:11 16 Q. You can do a better job for your patients if they follow 14:07:13 17 your recommendations; isn't that right? 14:07:16 18 A. That's true, but -- 14:07:18 19 Q. And sometimes people are in need of therapy and think they 14:07:25 20 may not be but you as a psychiatrist know better and ask them 14:07:25 21 to come back, maybe in two months; isn't that right? 14:07:28 22 A. That's right, but it is not a perfect world and I would 14:07:31 23 not infer that it meant that Mr. Schell was a person of bad 14:07:33 24 character or he was not compliant or he was some kind of a 14:07:36 25 wild man because he didn't follow up as he had been advised 496 14:07:39 1 to do. 14:07:40 2 Q. But he didn't follow up? 14:07:41 3 A. No, he didn't. 14:07:42 4 MR. PREUSS: Thank you. 14:07:44 5 THE COURT: Anything further? 14:07:46 6 Thank you very much, Dr. Maltsberger. You may step 14:07:50 7 down. 14:07:51 8 THE WITNESS: Thank you, Your Honor. 14:09:13 9 (Witness sworn.) 14:09:14 10 THE CLERK: Please state your name and spell it for 14:09:15 11 the record. 14:09:17 12 THE WITNESS: Penny Durant, P E N N Y, D U R A N T. 13 14 PENNY DURANT, 15 called as a witness on behalf of the Plaintiffs, being first 16 duly sworn, testified as follows: 17 DIRECT EXAMINATION 14:09:34 18 Q. (BY MR. FITZGERALD) Where do you live? 14:09:35 19 A. I live in Billings, Montana. 14:09:42 20 Q. You gave your name to the clerk. It is Penny Durant? 14:09:46 21 A. Yes. 14:09:46 22 Q. And you're Tim Tobin's mother? 14:09:49 23 A. Yes. 14:09:50 24 Q. Well, we're going to talk today with you about some 14:09:54 25 different issues than we've heard about earlier so far in the 497 14:09:58 1 trial. We're going to talk with you about the issues of lost 14:10:01 2 care, lost comfort and lost society, okay? 14:10:05 3 A. Yes. 14:10:06 4 Q. And in order to do that, I'm going to need to ask you some 14:10:10 5 questions about Tim as a human being and what this loss has 14:10:17 6 meant. And I don't expect that it will be totally easy for 14:10:23 7 you. 14:10:24 8 Do I have your permission to go into some of these 14:10:27 9 difficult areas? 14:10:29 10 A. Yes. 14:10:31 11 Q. Well, first of all, the jury has met Tim and let's just 14:10:40 12 find out a little bit, if we can, about him. 14:10:44 13 When was he born? 14:10:46 14 A. 1968. 14:10:50 15 Q. And you were proud of it? 14:10:54 16 A. Of course. 14:10:54 17 Q. And still are? 14:10:55 18 A. Of course. 14:10:57 19 Q. Can you tell us a little bit about where he grew up. 14:11:03 20 Where was he born? Where did he grow up? 14:11:06 21 A. When Tim was born we were living in Redwood City, 14:11:09 22 California. My ex-husband, who is Tim's father, was working 14:11:12 23 for the Internal Revenue Service and we lived there from 1965 14:11:16 24 until 1973. And Tim was born in Redwood City. 14:11:22 25 And from California -- we were living in San Mateo, 498 14:11:27 1 actually, at the time. We moved from California to Montana, 14:11:30 2 to Helena, and we lived there until 1978, at which time we 14:11:36 3 moved to Maui, the island of Maui in Hawaii. 14:11:42 4 And in 1983 I was in the process of getting a 14:11:44 5 divorce, so I moved back to Billings. Tim accompanied me. 14:11:47 6 My older son was beginning college at U.S.C. and Tim lived 14:11:52 7 with me in Billings for his sophomore year in high school and 14:11:55 8 then returned to Hawaii to live with his father where he 14:12:00 9 attended a private school in Honolulu. 14:12:06 10 Q. Let me see if I have this right. At the time you moved 14:12:11 11 from Hawaii back to the continental United States, your older 14:12:15 12 boy -- what's his name? 14:12:18 13 A. Patrick. 14:12:18 14 Q. He was starting school at University of Southern 14:12:20 15 California? 14:12:20 16 A. Yes. 14:12:21 17 Q. And Tim went with you to Billings, right? 14:12:23 18 A. Yes. 14:12:23 19 Q. Why Billings? Why did you pick Billings? 14:12:27 20 A. At the time I think when you're undergoing those kinds of 14:12:30 21 changes in your life almost anyplace sounds good. And my 14:12:34 22 parents had returned to the United States. They had lived 14:12:36 23 overseas for about 25 years and had first thought they would 14:12:41 24 go to Houston and then decided on Billings, Montana. And I 14:12:45 25 had gone to visit. And Billings is a wonderful community. 499 14:12:48 1 It is not very large. It has a population of around 100,000 14:12:53 2 people and I had a support system there so the choice was 14:12:55 3 easy. 14:12:56 4 Q. So when Tim moved there with you, how long did he stay 14:13:00 5 there? 14:13:01 6 A. He was there for his sophomore year in high school. 14:13:05 7 Q. And then as young men sometimes do, he chose to spend a 14:13:10 8 couple years with his father, do I understand that? 14:13:12 9 A. Yes. 14:13:13 10 Q. And then did he come back? 14:13:16 11 A. Oh, Tim was back quite often. He was back for holidays 14:13:19 12 and he spent the summers with me. 14:13:22 13 Q. So he graduates from high school over in Hawaii, right? 14:13:27 14 A. Yes. 14:13:27 15 Q. What's he do next? 14:13:28 16 A. He then goes to U.S.C. He spent about a year there. Tim 14:13:39 17 has always been the more social of the two boys and he 14:13:42 18 joined -- he pledged a fraternity. 14:13:45 19 Q. You are building up to this didn't work out all that well 14:13:49 20 at U.S.C., right? 14:13:50 21 A. It didn't. He decided that life in the fast lane -- and 14:13:54 22 it was a little too fast, and he wanted to move back to 14:13:57 23 Billings. And he made application to Rocky Mountain College 14:13:59 24 and that's where he went to school. 14:14:01 25 Q. Rocky Mountain College is a four-year institution? 500 14:14:06 1 A. Yes, it is. It is a private school. 14:14:09 2 Q. In Billings? 14:14:15 3 A. Yes. 14:14:15 4 Q. And now he's back. Does he live with you? 14:14:15 5 A. Yes. 14:14:15 6 Q. Now, somewhere along the line here he meets Debbie? 14:14:21 7 A. Yes. 14:14:21 8 Q. Could you please explain about that? 14:14:26 9 A. My son is a very private person and I knew that there had 14:14:30 10 been girlfriends because there had been conversations about 14:14:32 11 girlfriends, but we had never really met anybody. And one 14:14:38 12 day he brings Deb to the house. And it was her final year in 14:14:44 13 school. She had actually been on a ski trip. It was in the 14:14:49 14 winter months and they had -- the school group had gone to 14:14:52 15 Jackson, Wyoming, to go skiing. And Deb had never skied, I 14:14:57 16 don't think, a day in her life. And on the first or second 14:15:00 17 one down the hill she just smashed her thumb terribly and she 14:15:05 18 was in a cast. 14:15:06 19 Deb was a very petite person and this cast was very 14:15:10 20 big. And Tim brought her to the house to introduce me, but 14:15:15 21 she also needed a big sweater, so I lent her a couple 14:15:19 22 sweaters that would go over the cast. And that was the 14:15:22 23 beginning of our relationship with Deb. 14:15:23 24 Q. Okay. Well, was there something different about Deb, I 14:15:27 25 mean, in terms of -- had Tim brought a lot of his girlfriends 501 14:15:30 1 home before? 14:15:31 2 A. No. No. She was obviously very special to him, and for 14:15:37 3 him to reach that point, she meant a lot to him. 14:15:41 4 Q. And I suppose you might have put some significance on the 14:15:45 5 fact that you were meeting this young lady? 14:15:48 6 A. Yes, yes. 14:15:59 7 Q. What was she like? 14:16:01 8 A. Deb was one of life's finest creatures. I know that when 14:16:04 9 someone is gone we tend to put special bearing on their good 14:16:07 10 qualities and we forget about the bad ones, but Deb was just 14:16:11 11 very, very special. She had wonderful warm qualities that -- 14:16:17 12 there was a peace about her and a graciousness about her and 14:16:21 13 perhaps that's what attracted Tim to her. 14:16:24 14 With this peace and graciousness she tended to round 14:16:29 15 all of his sharp edges. He's a bit cynical and makes, you 14:16:34 16 know -- they were just totally different people. She was -- 14:16:41 17 as time passed she became the daughter I never had. She was 14:16:44 18 extremely close to my husband, my second husband, who was 14:16:50 19 Tim's stepfather who, although married before, didn't have 14:16:54 20 children of his own. And when we married he inherited an 14:16:57 21 entire family and now we were bringing Deb into the picture. 14:17:02 22 And they were very, very close. 14:17:06 23 Q. Let's see if we have this picture right. You have an 14:17:09 24 older boy Patrick and then you have Tim? 14:17:13 25 A. Yes. 502 14:17:13 1 Q. And you and Tim and Patrick and your husband are your 14:17:16 2 family? 14:17:16 3 A. Yes. 14:17:17 4 Q. So now we introduce Deb into the mix? 14:17:20 5 A. Yes. 14:17:20 6 Q. Okay. Well, did Tim confide in you some of the things or 14:17:31 7 could you as a mother tell us some of the things that were 14:17:34 8 special about Deb to Tim? 14:17:36 9 A. We talked about Deb, not right away, because as I said, 14:17:41 10 Tim is a very private person. We're close but he's still 14:17:44 11 very private. 14:17:46 12 And one day -- I mean, it was obvious that she was 14:17:49 13 becoming increasingly more important to his life and he said 14:17:53 14 that Deb was the one person he had been able to love, and she 14:18:01 15 in turn, had made it possible for him to do that. Again, it 14:18:06 16 is those qualities about her that are just -- that 14:18:10 17 peacefulness, graciousness, the warmth of her spirit. 14:18:14 18 Q. When did you think he fell in love with her? 14:18:17 19 A. I would have to say probably by the time he had brought 14:18:21 20 her to the house he had fallen in love with her. 14:18:31 21 Q. They get married? 14:18:32 22 A. Yes. 14:18:32 23 Q. Can you tell us something about that? What was special 14:18:35 24 about that? 14:18:35 25 A. About the wedding? 503 14:18:37 1 Q. About the wedding and the fact that he married her. 14:18:40 2 A. Well, I think a wedding in any parent's life is very 14:18:43 3 important. Children are very important. It was a very 14:18:52 4 special time for Deb and Tim. They had moved to Gillette, 14:18:56 5 they were living with Don and Rita and had lived with them 14:18:59 6 for about six months before they were married. 14:19:03 7 Tim was raised in the Episcopal church, as I say, was 14:19:07 8 a cynic and Deb was very Catholic, and out of respect for 14:19:12 9 her, he had agreed to go through all the instructions and the 14:19:16 10 classes so they could be married in the Catholic church. 14:19:19 11 There was great celebration and planning. We were with Don 14:19:23 12 and Rita and they were with us very often in Billings. It 14:19:26 13 was a wonderful family time with great expectations. 14:19:35 14 Q. Was Tim working in Gillette at that time? 14:19:38 15 A. Yes, he was. He was working in the lab at one of the coal 14:19:41 16 mines. 14:19:42 17 Q. So this getting together with Don and Rita and you and 14:19:44 18 your husband and these two lovebirds is done in part to plan 14:19:52 19 the festivities, is that what you're talking about? 14:19:59 20 A. I think the planning was being primarily done by Deb and 14:19:59 21 Rita. I don't know that Don and Tim put all of that much 14:20:01 22 into it. They may have had a comment or a few. And for us, 14:20:05 23 since we were all new to this, it was a little hard to figure 14:20:08 24 out just who was responsible for doing what and we were 14:20:11 25 working through that. 504 14:20:12 1 And I remember we made several trips down to 14:20:15 2 Gillette. We were having the rehearsal dinner and we had 14:20:20 3 gone to a couple of restaurants in Gillette -- Gillette does 14:20:23 4 not have that many restaurants -- just to test desserts and 14:20:27 5 try them out and everything, so -- 14:20:29 6 Q. All right. We will take a bird's-eye view, look at some 14:20:44 7 photographs, but once they're married, where do they live? 14:20:47 8 A. They live in Gillette. 14:20:49 9 Q. For how long, approximately? 14:20:52 10 A. A year. 14:20:54 11 Q. Tim continues to work at the lab; is that correct? 14:20:56 12 A. Yes, that's correct. 14:20:57 13 Q. And then do they move to Billings? 14:21:01 14 A. They move to Denver. 14:21:03 15 Q. They move to Denver? What did Tim do in Denver? 14:21:07 16 A. Tim worked for a mortgage company in Denver. Deb had 14:21:10 17 started out -- she was working for friends of hers down there 14:21:13 18 and then she went to work for the Oppenheimer Fund and that's 14:21:18 19 where she was working when they decided to move to Billings. 14:21:21 20 Q. The Oppenheimer Fund is like a mutual -- stock mutual 14:21:25 21 fund? 14:21:25 22 A. Yes, uh-huh. 14:21:26 23 Q. All right. After Denver where did they go? 14:22:17 24 A. Deb had gotten her degree in education and had always 14:22:17 25 wanted to be a teacher. And it is a little bit difficult -- 505 14:22:17 1 it was difficult even in those days to get jobs as a teacher, 14:22:17 2 and she had been told by a number of people that it would be 14:22:17 3 easier to find a job in education if she had her special 14:22:17 4 education endorsement, so she made application to MSU-B in 14:22:17 5 Billings. 14:22:17 6 Q. That's the Montana State University-Billings? 14:22:17 7 A. Yes, it was called Eastern at that time. And they 14:22:17 8 accepted her. It was a hundred-hour program. They 14:22:17 9 basically, you know, moved back to Billings and Tim found a 14:22:17 10 job there and Deb finished her college training. 14:22:22 11 Q. So now they're back in Billings? 14:22:22 12 A. Yes. 14:22:22 13 Q. And do they continue to live in Billings from that point 14:22:23 14 forward until the tragedy in this case? 14:22:26 15 A. Yes. 14:22:28 16 Q. Somewhere along the line they have a child. Would you 14:22:30 17 tell us about that? 14:22:34 18 A. That was a particularly joyous time. It was all a 14:22:38 19 surprise to everybody. My husband and I were in the process 14:22:43 20 of moving to east Texas and the kids came over with a gift 14:22:48 21 for me. It was in plastic bag, and I opened it up and it was 14:22:52 22 a book on pregnancy. It was Deb's book, obviously, but that 14:22:55 23 was the way they told me. 14:22:58 24 There was tremendous participation by Tim in this 14:23:03 25 pregnancy. It was a joyous sharing. It was, again, looking 506 14:23:10 1 forward with tremendous expectation. There were times I 14:23:14 2 remember being in the house when Deb was playing classical 14:23:17 3 music to the baby and she would have the earphones around 14:23:20 4 this huge stomach of hers and I believe that Tim told me, 14:23:24 5 even, the classical music was played in the delivery room. 14:23:30 6 Q. His idea? 14:23:31 7 A. It was both of their idea. 14:23:34 8 Q. So he was an involved expectant father? 14:23:38 9 A. Absolutely. 14:23:41 10 Q. I do want to review with you some of the photographs. 14:23:48 11 MR. FITZGERALD: And so, Your Honor, these are 14:23:50 12 admitted into evidence. They're Exhibit 42. I will ask if 14:23:54 13 there's any chance -- we might have another set for 14:23:56 14 Mr. Gorman, but may I give the original to the witness and 14:24:01 15 hand copies to the jurors, Your Honor? 14:24:08 16 THE COURT: Yes, you may. 14:24:38 17 MR. FITZGERALD: I may have confused things. They're 14:24:39 18 clipped together and they're sets. The one on the top is 14:24:44 19 stamped with a bunch of zeros and a 1. 14:24:59 20 Q. (BY MR. FITZGERALD) Let's find out who some of these 14:25:02 21 people are shown in the photographs. 14:25:04 22 If you look at the number that's stamped 1, who are 14:25:07 23 those folks? 14:25:08 24 A. That's Don and Rita, Deb's parents. 14:25:11 25 Q. And how well did you get to know them? I know you talked 507 14:25:15 1 about planning for the wedding and all of that. How well did 14:25:18 2 you get to know Don and Rita? 14:25:21 3 A. We didn't spend a tremendous amount of time together. I 14:25:24 4 mean, we shared a young family and we were friendly. We 14:25:29 5 enjoyed their company very much. They were witty, charming 14:25:35 6 people, generous. They loved my son. We liked them. 14:25:45 7 Q. If you will turn to Bates stamp 2, there are two 14:25:50 8 photographs on -- we call that a Bates stamp. It is a little 14:25:54 9 machine that makes a stamp called a Bates stamp. 14:25:56 10 There are two photographs on there. Who is in the 14:25:58 11 top photograph? 14:25:59 12 A. On the left is Deb and in the center is her father and her 14:26:03 13 mother on her father's other side. 14:26:08 14 Q. On the lower part of 2 out of Exhibit 42, that's Tim and 14:26:14 15 Deb? 14:26:15 16 A. Yes. 14:26:17 17 Q. Then we turn to the page that's stamped 8. There are two 14:26:22 18 photographs there. At the top who are these people and 14:26:27 19 what's this occasion? 14:26:30 20 A. On the left is Don and Rita, and then Tim and Deb, and it 14:26:34 21 is one of the graduations, and I can't see the year, so I 14:26:38 22 don't know which one. It is taken at Rocky. I do know that. 14:26:42 23 Q. Rocky Mountain College? 14:26:44 24 A. Yes, uh-huh. 14:26:45 25 Q. Okay. Now, down below we see a picture of Tim and Deb, 508 14:26:50 1 correct? 14:26:51 2 A. Yes. 14:26:51 3 Q. Are these people who -- I mean, here she is sitting on his 14:26:58 4 lap. Is that a common thing? 14:27:00 5 A. Yes. 14:27:01 6 Q. Tell us about that. Tell us about their touching and 14:27:05 7 caressing. 14:27:06 8 A. They were warm, very affectionate people. And they were 14:27:12 9 very comfortable, I mean, without being overly affectionate 14:27:15 10 to the point where it would offend somebody. That's just the 14:27:21 11 way they lived. They were together and they were in love. 14:27:31 12 Q. Had you -- you know, here's this picture on the bottom of 14:27:34 13 page 8, stamp 8. Had you ever seen Tim in love with somebody 14:27:41 14 like this before he met Deb? 14:27:44 15 A. No. Deb and Alyssa were pretty much his life. 14:27:55 16 Q. Let's turn to page stamp 11, a couple of photographs 14:28:01 17 there. Who is on the top and who is on the bottom 14:28:05 18 photograph? 14:28:05 19 A. Well, it is Don and Rita again, and then Don and Deb on 14:28:13 20 the bottom. 14:28:16 21 Q. Page stamp 12 -- 14:28:22 22 MR. FITZGERALD: Sorry, Mr. Gorman. I didn't show 14:28:24 23 you these. 14:28:25 24 MR. GORMAN: I'm thinking you're just using some out 14:28:31 25 of this assimilation, so I can follow. 509 14:28:33 1 Q. (BY MR. FITZGERALD) Who do we have on stamp 12? 14:28:35 2 A. Starting on the left is Deb, then her father, then Rita, 14:28:40 3 her mother and then Mike, her brother. 14:28:44 4 Q. That Mike is Mike Schell? 14:28:46 5 A. Yes, it is. 14:28:46 6 Q. The son of Don and Rita? 14:28:57 7 A. Yes. 14:28:57 8 Q. And Deb and Mike are brother and sister? 14:29:01 9 A. Yes. 14:29:02 10 Q. So what we're looking at is the Schell family, correct? 14:29:05 11 A. That's correct. 14:29:06 12 Q. On number 13 it is Christmastime. Who is in the top 14:29:13 13 picture? 14:29:14 14 A. Again, it is Don and it is Mike, his son, and on the 14:29:19 15 bottom it is Don and Rita. 14:29:21 16 Q. Do you happen to know which Christmas this might be? 14:29:24 17 A. I do not. 14:29:25 18 Q. There's another picture. It is number 15. It is on stamp 14:29:30 19 15. And left to right we have Tim, correct? 14:29:37 20 A. That's correct. 14:29:37 21 Q. And Deb again? 14:29:38 22 A. Yes. 14:29:38 23 Q. And then Rita? 14:29:40 24 A. Yes. 14:29:41 25 Q. And then Don? 510 14:29:46 1 A. Don. 14:29:47 2 Q. Don Schell? 14:29:48 3 A. That's correct. 14:29:49 4 Q. And who is that to the right? 14:29:50 5 A. That's Mike, Mike Schell. 14:29:53 6 Q. Once again we have the Schell family, but now with their 14:29:58 7 son-in-law? 14:29:59 8 A. That's correct. 14:29:59 9 Q. Now, we have a little better quality photographs when we 14:30:02 10 get to number 16 here. So let's take a look at that top 14:30:08 11 picture. Here's Deb, here's Tim. And let me ask you a few 14:30:16 12 questions. These people are smiling. I mean, do they smile 14:30:20 13 all the time or just for photographs or what? 14:30:24 14 A. I'm sure they're like most of us. They smile sometimes 14:30:27 15 and they don't smile sometimes. This was a happy occasion. 14:30:32 16 I recognize the picture here. It is one that was taken in 14:30:35 17 Red Lodge which is about 50 miles from Billings, and we often 14:30:38 18 went up there to celebrate special occasions. I don't know 14:30:41 19 which one this was, but it was a happy family occasion. 14:30:46 20 Q. Okay. Red Lodge is one of those things that's a ski area 14:30:49 21 in the winter and a place to go and hike and eat and so forth 14:30:53 22 in the summertime? 14:30:54 23 A. That's correct. 14:30:58 24 Q. Who would go on occasions like this? Someone took this 14:31:01 25 photograph. 511 14:31:02 1 A. Well, it would be whoever in the family was there. 14:31:04 2 Sometimes family friends. It would be -- my parents were 14:31:07 3 still living in Billings at the time, and we would be up 14:31:10 4 celebrating birthdays or anniversaries or just to celebrate, 14:31:21 5 have a good time. 14:31:23 6 Q. Many of us here have the experience of having been 14:31:25 7 married, we are married. We make friends as couples, 14:31:29 8 correct? 14:31:31 9 A. Correct. 14:31:31 10 Q. Was that true of Tim and Deb, too? 14:31:35 11 A. Yes, they had friends. 14:31:36 12 Q. Who were their best friends? As between Tim and Deb, I 14:32:15 13 mean, were they best friends with each other? 14:32:15 14 A. They were best friends, of course. 14:32:15 15 Q. And they made room for other friends as well? 14:32:15 16 A. Yes, and they were very family oriented. 14:32:15 17 Q. What's this at the bottom here? 14:32:15 18 A. This is again another family trip. We did a lot of -- 14:32:15 19 whenever it was possible, we would travel with the kids, 14:32:15 20 sometimes close, sometimes far away. And this happened to be 14:32:15 21 a trip. We had Patrick up from Los Angeles and this was 14:32:15 22 taken in Thermopolis, Wyoming. 14:32:18 23 Q. We can see the walkways in the background there, can we 14:32:18 24 not? 14:32:19 25 A. Yes. 512 14:32:19 1 Q. And the terraces? 14:32:23 2 A. Yes. 14:32:24 3 Q. Tell us a little bit about the trips you took as a family. 14:32:27 4 How did you pick where to go and what role did Tim and Deb 14:32:33 5 play in those choices? 14:32:34 6 A. You know, it is almost as if whoever happened to come up 14:32:37 7 with the idea. We're not a real rigid family and because my 14:32:42 8 husband is gone most of the time we don't have a lot of 14:32:46 9 opportunities to do things together or with the kids. 14:32:50 10 And so whenever we had the opportunity, we would just 14:32:52 11 simply plan to do something, and oftentimes it was extremely 14:32:56 12 spontaneous, and it was just however much time we had. If we 14:33:01 13 didn't have much time, we wouldn't go very far. If we had 14:33:05 14 more time, we would go a little bit further but we tried to 14:33:08 15 do something different, something -- some way to spend time 14:33:11 16 together. 14:33:11 17 Q. And what kind of time did Tim and Deb have on these 14:33:16 18 things? Did they enjoy themselves? Did they squabble or 14:33:20 19 give a sense of what it was like for Tim and Deb to be 14:33:23 20 together on a trip like this? 14:33:25 21 A. Tim and Deb always had a good time. It didn't really 14:33:28 22 matter where they were. I'm sure they had moments of 14:33:31 23 disagreement and unhappiness. But when they were together 14:33:34 24 doing things it was with a joy of living. They had an 14:33:42 25 appreciation for everything. It didn't matter what it was, 513 14:33:46 1 whether it was just slopping around in really hot water and 14:33:52 2 having a good time or going to a museum and doing something a 14:33:56 3 little more sedate, but they enjoyed everything. 14:33:59 4 Q. Let's look at 28. Who do we have here? 14:34:03 5 A. This is the wedding. This is Deb with her father. 14:34:14 6 Q. At what occasion? 14:34:15 7 A. This is the wedding. If not the first, I'm sure it was -- 14:34:18 8 it was a wonderful evening. He was so proud of her. And she 14:34:24 9 was absolutely gorgeous that day, as any bride would be, but 14:34:30 10 for us she was particularly beautiful. And the thing about 14:34:33 11 Deb is that as beautiful as she was -- and I'm sorry that you 14:34:37 12 can't see more pictures of her -- I don't think she ever had 14:34:40 13 the sense herself of being beautiful. She was beautiful in a 14:34:44 14 way that she probably could have been a model if that's what 14:34:48 15 she wanted to do, but she was just a really down-to-earth 14:34:52 16 person who loved the simple things in life. I don't think 14:35:02 17 she ever knew how beautiful she was. 14:35:05 18 Q. Okay. So here's Dad and he's obviously proud of her? 14:35:11 19 A. Oh, yes. 14:35:12 20 Q. What pride did you see in Tim's eyes at that wedding? 14:35:17 21 A. Well, it was probably the happiest I've ever seen my son. 14:35:21 22 It was -- well, for anybody who is getting married, it is a 14:35:26 23 very joyous time. You have your whole life ahead of you. 14:35:32 24 Nothing bad has happened. I mean, it is a glorious time. 14:35:39 25 Q. And on the next page we have 33. It is a black and white 514 14:35:47 1 photograph, and that's Tim and Deb obviously? 14:35:49 2 A. Yes. 14:35:49 3 Q. And at the wedding, obviously? 14:35:51 4 A. Yes. 14:35:59 5 Q. 37, something revealed in the opening statement here, what 14:36:01 6 is going on here in this picture 37? 14:36:05 7 A. Well, Don is putting the garter on Deb's leg which is a 14:36:14 8 tradition. Maybe not everybody does it anymore -- and I 14:36:18 9 think a lot of these things sometimes are posed by the 14:36:21 10 photographer, but, you know, I mean, Don would have gone 14:36:28 11 along with anything. He was in his element. 14:36:31 12 Q. Okay. There's a wedding and later after they finished 14:36:39 13 living in Gillette and they move to Billings. They have a 14:36:41 14 little baby, Alyssa. Is this her in 48? 14:36:46 15 A. That's her. 14:36:49 16 Q. You were proud of her yourself? 14:36:52 17 A. Absolutely. 14:36:54 18 Q. Well, we better talk about it. The baby's born. Tim is 14:36:59 19 there, right? 14:37:01 20 A. Yes, he was there for the delivery. 14:37:05 21 Q. And you weren't in the room? 14:37:07 22 A. I was in Texas. 14:37:09 23 Q. Okay. But Tim notified you that the child's been born? 14:37:13 24 A. We get a picture over the e-mail. 14:37:16 25 Q. Modern -- 515 14:37:17 1 A. Modern technology. You don't have to miss a lot. 14:37:23 2 Q. And so what kind of joy did Tim take in that, having that 14:37:28 3 baby, that you could understand from where you were? And I'm 14:37:33 4 talking about right at that time. You get the picture -- 14:37:38 5 A. When the baby is born? 14:37:40 6 Q. Yes, ma'am. 14:37:40 7 A. My son Patrick was visiting in Billings when the baby was 14:37:45 8 born. The boys are very close and he wanted to be there for 14:37:48 9 her birth. And they called and I spoke with Patrick and 14:37:56 10 Patrick said that there was a sense about Tim -- 14:38:02 11 Q. And what about Tim? 14:38:02 12 A. A sense about Tim of maybe realizing for the first time 14:38:05 13 what life was about. It was all of a sudden here was this 14:38:09 14 baby that they had planned for and were welcoming and it is 14:38:15 15 maybe the awesomeness of birth itself that has such an impact 14:38:22 16 on a person. Certainly it did on my son. He loved being a 14:38:26 17 father. 14:38:29 18 Q. And one day you're not a father but you have a pregnant 14:38:34 19 wife and then one day suddenly you're a father so everything 14:38:37 20 is different? 14:38:38 21 A. Life changes. 14:38:39 22 Q. Yes. So how was it different and how did it change here 14:38:43 23 for Tim? 14:38:44 24 A. Well, for the both of them I think, this being a first 14:38:49 25 child, they were both -- they had specific ideas about how 516 14:38:54 1 she was going to be raised and what they were going to do and 14:38:57 2 how she was going to eat and how things were going to be 14:38:59 3 cleaned and, you know, it is the first child and you do that. 14:39:02 4 You want to be particularly careful. 14:39:05 5 Tim would spend a lot of time with Alyssa. When we 14:39:09 6 were there it was, I guess, one of my proudest moments of my 14:39:16 7 son seeing him relate to his daughter this way. He loved her 14:39:22 8 very much. Their house was multi-level. You walked in the 14:39:29 9 front door and went upstairs to the living room and kitchen 14:39:34 10 and downstairs to the family room and garage area. 14:39:37 11 Q. Let me take you there. Can we do that? 14:39:39 12 A. Yes, I'm sorry. 14:39:40 13 Q. Because I would like to hear some detail about this. 14:39:45 14 You describe that you go to this house and there's 14:39:49 15 kind of -- is it bi-level? 14:39:54 16 A. Yes. 14:39:54 17 Q. So you can go upstairs into the living area or downstairs? 14:39:58 18 A. Yes. 14:39:58 19 Q. And you've been there yourself? 14:40:00 20 A. Yes. 14:40:00 21 Q. So take us there. Take us to the top of the stairs, if 14:40:02 22 you would, because where we're going to go here is something 14:40:06 23 that you've already told me that we're going to relate to the 14:40:09 24 Court and the jury about something that you saw, an 14:40:14 25 interaction between Tim and Alyssa, correct? 517 14:40:17 1 A. Yes. 14:40:17 2 Q. So you're there at the house, you're at the top of the 14:40:21 3 stairs. What do you see? 14:40:24 4 A. Well, Tim was downstairs. 14:40:28 5 Q. I know, but -- 14:40:30 6 A. And I'm going downstairs. 14:40:32 7 Q. What are you seeing? 14:40:34 8 A. I'm seeing my son sitting in a green rocking chair. 14:40:38 9 Q. All right. The green rocking chair is in a room down in 14:40:42 10 this basement? 14:40:43 11 A. It is in the den or family room. 14:40:45 12 Q. And is that a room you have to open the door to go into? 14:40:50 13 A. No, there was no door. 14:40:51 14 Q. There's a landing -- 14:40:52 15 A. You walk downstairs and turn to the right and you're in 14:40:54 16 the room. 14:40:55 17 Q. So we see -- you see Tim, we see Tim there in the chair. 14:41:00 18 He's in this green chair, right? 14:41:02 19 A. Yes. 14:41:02 20 Q. What's the texture of that chair? 14:41:04 21 A. The chair was a green plush velour, kind of alternating 14:41:12 22 green and a green pattern. Very soft chair. And it was a 14:41:17 23 rocking chair. 14:41:18 24 Q. How was this room lit? 14:41:20 25 A. It has windows along the one side that look out on the 518 14:41:24 1 front yard and so there's a lot of soft light that comes into 14:41:28 2 that room. It has not got a lot of direct light. It is very 14:41:34 3 soft lighting, more ambient lighting, very warm in that room. 14:41:39 4 Q. Is this chair a rocking chair? 14:41:40 5 A. Yes, it is. 14:41:41 6 Q. Who do you see in the chair? 14:41:42 7 A. Tim and Alyssa. 14:41:44 8 Q. And what do you see? Is she on his lap? What is it? 14:41:51 9 A. Well, he's holding her. He's rocking her to sleep. She's 14:41:54 10 had a fitful time. And he's rocking her to sleep. And she's 14:42:01 11 just very quietly laying against his shoulder and he's 14:42:04 12 holding her. 14:42:07 13 Q. Is he patting her? 14:42:08 14 A. No, he's just holding her. She's started to fall asleep 14:42:12 15 so he's just rocking her and holding her very quietly. 14:42:17 16 Q. Do you see love there? 14:42:20 17 A. I would say the purest kind of love you will ever see 14:42:23 18 between a parent and a child. 14:42:34 19 Q. And this is the child that we see here on stamp 48? 14:42:39 20 A. Yes. 14:42:56 21 Q. You know, I think we've got the picture. 14:42:58 22 MR. FITZGERALD: I have no other questions. 14:43:02 23 THE COURT: Thank you, Mr. Fitzgerald. 14:43:08 24 Cross-examination. 14:43:09 25 MR. GORMAN: Mrs. Durant, thank you very much. 519 14:43:11 1 We have no questions. 14:43:12 2 THE COURT: Thank you, Mrs. Durant. You may step 14:43:15 3 down. 14:43:16 4 If this witness so chooses, may she be permanently 14:43:20 5 excused? 14:43:22 6 MR. GORMAN: Yes, that's fine by us, Your Honor. 14:43:30 7 MR. FITZGERALD: Yes, Your Honor. 14:43:31 8 THE COURT: Thank you very much. 14:44:56 9 (Witness sworn.) 14:44:58 10 THE CLERK: Please state your name and spell it for 14:44:59 11 the record. 14:45:02 12 THE WITNESS: Flo Reavis, F L O, R E A V I S. 14:45:10 13 Q. (BY MR. FITZGERALD) Mrs. Reavis, we need to know a couple 14:45:21 14 of things about you and then I'm going to ask you to finish 14:45:21 15 off some photographs that we partly identified a little 14:45:21 16 earlier, okay? 14:45:23 17 A. Okay. 14:45:23 18 Q. Where do you live? 14:45:24 19 A. Gillette, Wyoming. 14:45:25 20 Q. How long have you lived there? 14:45:26 21 A. Since '58. 14:45:29 22 Q. And you're Rita Schell's mom? 14:45:35 23 A. Yes, ma'am -- yes, sir. 14:45:38 24 Q. Okay. I want to make sure we're clear on something here. 14:45:45 25 And I might use this just to demonstrate a point. This is 520 14:45:53 1 you, Flo Reavis, right? 14:45:57 2 A. Yes, sir. 14:45:58 3 Q. And you were married to Gerald? 14:45:59 4 A. Yes, sir. 14:46:02 5 Q. Gerald died in March of the year that the Schells lost 14:46:07 6 their lives; is that right? 14:46:09 7 A. He died in '97 and they were gone in '98. 14:46:12 8 Q. Okay. Pardon me. Gerald died in March '97? 14:46:16 9 A. Yes, sir. 14:46:16 10 Q. And that left Flo here, but you had raised and you had had 14:46:22 11 with Gerald two daughters -- three daughters. You had 14:46:30 12 Rita -- I should let you tell this. Which ones of these are 14:46:33 13 your daughters? Where does this fit in? This says Rita, 14:46:38 14 she's one of your daughters? 14:46:39 15 A. Rita, Neva and Peggy. 14:46:49 16 Q. Neva has been sitting with us this week? 14:46:51 17 A. Yes. 14:46:51 18 Q. Peggy? 14:46:52 19 A. She is the youngest in New Mexico. 14:46:54 20 Q. You go to visit her sometimes, don't you? 14:46:57 21 A. Yes, sir. 14:46:58 22 Q. For purposes here, we followed it, here is your daughter 14:47:04 23 Rita and she married Don? 14:47:07 24 A. Yes. 14:47:08 25 Q. How did you feel about that? 521 14:47:09 1 A. Real good. 14:47:10 2 Q. They have a couple children. They have Michael Schell who 14:47:13 3 is your grandson? 14:47:14 4 A. Yes. 14:47:18 5 Q. Debra, your granddaughter? 14:47:22 6 A. Right. 14:47:23 7 Q. She meets Tim Tobin, they fall in love, get married and 14:47:27 8 they have Alyssa Tobin? 14:47:29 9 A. Right. 14:47:29 10 Q. So this family tree is accurate? 14:47:31 11 A. Right. 14:47:49 12 Q. I want to show you some photographs -- and I believe the 14:47:52 13 last witness took them out of the courtroom but we'll get 14:47:55 14 them back. 14:47:57 15 MR. FITZGERALD: May I approach the witness? 14:47:58 16 THE COURT: Yes, you may. 14:47:59 17 Q. (BY MR. FITZGERALD) Let's talk about some of the 14:48:00 18 photographs we didn't discuss with Penny Durant. If we turn 14:48:03 19 to this photograph, who have we got in this picture? 14:48:09 20 A. Don Schell. 14:48:10 21 Q. Don Schell, your son-in-law? 14:48:12 22 A. Yes. 14:48:12 23 Q. And he's holding who? 14:48:14 24 A. Alyssa. 14:48:15 25 Q. Then over on the right side of this particular page we've 522 14:48:18 1 got Alyssa with? 14:48:22 2 A. Rita. 14:48:22 3 Q. With Rita, Grandma, right, Alyssa is the grandchild of 14:48:29 4 Rita? 14:48:30 5 A. Yes, yes. 14:48:31 6 Q. That's your great-grandchild in that picture? 14:48:34 7 A. Yes. 14:48:34 8 Q. Bet you're proud of her? 14:48:37 9 A. Right. 14:48:38 10 Q. What's your date of birth, by the way? 14:48:40 11 A. Oh, shoot. 14:48:41 12 Q. I'm not going to ask you how old you are. 14:48:44 13 A. 1/9/22. 14:48:49 14 Q. If we turn to the one that's Bates stamped 50 here, who 14:48:53 15 have we got in this picture? 14:48:55 16 A. Don, Rita, Debbie and Tim and Alyssa. 14:49:02 17 Q. And if we turn to 51, on the left-hand side here -- is 14:49:08 18 this hard for you? 14:49:10 19 A. I'll be all right. 14:49:12 20 Q. I'm sorry. This is Alyssa in Deb's arms? 14:49:17 21 A. Debbie. 14:49:18 22 Q. And here's another picture on the right of Debbie and 14:49:24 23 Alyssa? 14:49:25 24 A. Yes. 14:49:26 25 Q. We have a little child dressed up for Halloween, don't we? 523 14:49:29 1 A. Right, Alyssa. 14:49:31 2 Q. And what is down here at the bottom? Just a shot in the 14:49:34 3 family home there? 14:49:35 4 A. Yes, she was just learning to walk. 14:49:38 5 Q. She's doing what we call furniture walking at that point? 14:49:41 6 A. Right. 14:49:41 7 Q. Okay. How much contact did you have with Alyssa? 14:49:53 8 A. When they were down from Billings, a lot. 14:50:05 9 Q. All right. I'm going to come back to some things. I 14:50:08 10 wanted to clear up the pictures while we all still had them 14:50:11 11 in our hands. 14:50:13 12 I want to talk with you about a couple of points, 14:50:16 13 okay? We kind of got a picture of what the relationship was 14:50:21 14 between Tim and Deb and their daughter. And I'm going to 14:50:29 15 come back and talk with you about the relationships between 14:50:32 16 the others in this family tree, including yours. 14:50:37 17 But first I want to talk with you about a particular 14:50:41 18 matter that has to do with some communications you had with 14:50:48 19 Don Schell during the -- right around the time of his death. 14:50:58 20 And so I want to direct your attention to a phone 14:51:02 21 conversation. You were asked about this during your 14:51:09 22 deposition so you know the general subject matter that we're 14:51:11 23 talking about here? 14:51:12 24 A. Yes. 14:51:13 25 Q. Okay. So let me try to move things along a little bit by 524 14:51:19 1 saying, you live in Gillette, you have a conversation fairly 14:51:23 2 frequently on the phone with your daughter Rita, correct? 14:51:27 3 A. Right, right. 14:51:32 4 Q. Now, one evening in particular you wind up talking to Don? 14:51:44 5 A. Right. 14:51:44 6 Q. Now there's some confusion whether it was the Tuesday or 14:51:47 7 the Wednesday before his death? 14:51:48 8 A. Right. 14:51:49 9 Q. But the question is this: Let me go back and get a 14:51:57 10 picture of this phone call, if we can. By the time you have 14:51:57 11 this phone call -- first of all, is this the last time you 14:51:58 12 ever spoke to Don? 14:52:00 13 A. Right. 14:52:00 14 Q. So it sticks in your mind? 14:52:02 15 A. Right. 14:52:02 16 Q. By the time you had this conversation with Don what was 14:52:05 17 your understanding about whether he had been to a doctor and 14:52:09 18 whether he had gotten some medication? 14:52:18 19 A. The only thing I knew is that Rita had told me he had been 14:52:22 20 to the doctor and gotten new medication. 14:52:24 21 Q. Then you had a phone call where you called the house? 14:52:26 22 A. I called the house on account of Debbie. I was going to 14:52:29 23 talk to Debbie. 14:52:30 24 Q. Because Debbie is down visiting from Billings? 14:52:33 25 A. Yes, right, right. 525 14:52:34 1 Q. Was that a fairly common thing, that Debbie would come 14:52:37 2 down? 14:52:38 3 A. Yes, whenever they had a chance. 14:52:40 4 Q. In this particular instance Tim and the Schells had 14:52:45 5 rendezvoused in Sheridan and Debbie comes back to the 14:52:50 6 Schells' home and Tim goes back to Billings? 14:52:53 7 A. Right. 14:52:54 8 Q. So they're down for a visit, right? 14:52:56 9 A. Right. 14:52:56 10 Q. And you now know that Don has been to a doctor and gotten 14:53:35 11 new medication? 14:53:35 12 A. Right. 14:53:35 13 Q. And you have a conversation with him because you call the 14:53:35 14 house looking for Debbie? 14:53:35 15 A. Yes. 14:53:35 16 Q. What did he sound like? 14:53:35 17 A. His voice was very shaky and I couldn't hardly understand 14:53:35 18 him, and he said Debbie was putting the baby to bed and she 14:53:35 19 couldn't come to the phone at that time, so that was it. 14:53:35 20 Q. All right. Now I need to ask you a few things about your 14:53:37 21 family. How did Don get along with Gerald? 14:53:47 22 A. Real good. 14:53:48 23 Q. When Gerald died, what was the effect on Don? 14:53:51 24 A. He was taking it pretty hard because they were so close. 14:54:06 25 Q. Let's go back to the phone call thing. There's been some 526 14:54:09 1 suggestion here that Don wouldn't tolerate phone calls after 14:54:13 2 a certain time at night. Could you tell us about that? 14:54:16 3 A. I didn't know anything about that. 14:54:23 4 Q. Did you make phone calls at various times of the evening 14:54:26 5 to their home? 14:54:28 6 A. Not really. 14:54:29 7 Q. Were you ever told, "Be sure you don't call after 10:00 14:54:32 8 p.m.," or anything like that? 14:54:35 9 A. Oh, no, no. 14:54:47 10 Q. When you were around Don and Rita we need to understand 14:54:50 11 what they were like as a couple. Can you tell us about that? 14:54:56 12 A. Well, yes. They was -- well, I never did hear them say 14:55:04 13 anything against each other. I never did hear them say 14:55:07 14 anything bad about each other. Normal mostly. 14:55:14 15 Q. Did you see love between them? 14:55:15 16 A. Oh, sure. 14:55:23 17 Q. Were you proud of your son-in-law? 14:55:25 18 A. Sure, I sure was. 14:55:27 19 Q. Well, some sons-in-law don't necessarily get along all 14:55:31 20 that well with their mothers-in-law. What was that like in 14:55:35 21 your family? 14:55:37 22 A. Real good. All three son-in-laws are good for us. 14:55:48 23 Q. You were married to Gerald how long? 14:55:50 24 A. Fifty-seven years. 14:55:56 25 Q. Whoa. 527 14:55:58 1 A. I know, 57 years. 14:56:00 2 Q. Fifty-seven years is a long time. 14:56:02 3 And how long were Rita and Don married? 14:56:04 4 A. I think about 37. I really never figured it out. 14:56:08 5 Q. When, if ever, did you see him raise a hand in anger 14:56:11 6 toward anyone in his family? 14:56:12 7 A. I never did. 14:56:18 8 Q. We would like to know a little more about what Don was 14:56:21 9 like here. What kind of fellow was he? 14:56:23 10 A. Neat. 14:56:28 11 Q. Physically neat, are you saying? 14:56:29 12 A. Both of them. 14:56:31 13 Q. A neat or cool guy or whatever the word is now for -- 14:56:34 14 A. Real easy to get along with. 14:56:38 15 Q. Easy to get along with? 14:56:39 16 A. Yes. 14:56:39 17 Q. Would he make small talk? 14:56:41 18 A. Oh, yes. 14:56:45 19 Q. Was he sociable? 14:56:47 20 A. Sure. 14:56:47 21 Q. Were there times when he would get down, what you would 14:56:51 22 call depressed? You saw him then, right? 14:56:55 23 A. Not that I knew of. I never did know when he was 14:56:57 24 depressed, if he was. 14:57:02 25 Q. How much did you see of these folks? 528 14:57:07 1 A. Well, when everybody was working I didn't see them much, 14:57:10 2 any of them. 14:57:11 3 Q. What kind of occasions would you get together? 14:57:13 4 A. Oh, on holidays and go out to the lakes and we all did a 14:57:20 5 lot of fishing. 14:57:23 6 Q. So you go out to the lake, where is the lake from 14:57:25 7 Gillette? 14:57:26 8 A. About 40 miles east. 14:57:29 9 Q. And would you go with Don and Rita? 14:57:33 10 A. Yeah, we would all go together. 14:57:37 11 Q. Okay. Well, would you say you had a lot of chance, a lot 14:57:41 12 of opportunity to size up this relationship between them over 14:57:45 13 the course of the 37 years they were married? 14:57:47 14 A. Sure. 14:57:49 15 Q. So they have a child, Michael? 14:57:53 16 A. Right. 14:57:56 17 Q. Well, one of the issues in this case is was there a loss 14:58:02 18 of the care, was there a loss of the comfort, was there a 14:58:06 19 loss of the society of Michael? Did he lose care, comfort 14:58:14 20 and society from his mom, Rita. And so we need to know 14:58:17 21 something about how Michael and Rita got along and what Rita 14:58:21 22 did to give him care, comfort and society. 14:58:28 23 A. They got along fine. I don't know what else to say. 14:58:32 24 Q. Was it a loss to him when he lost his mom? 14:58:36 25 A. Sure. 529 14:58:36 1 Q. In what ways? 14:58:37 2 A. He lost his whole family. 14:58:41 3 Q. Yes, ma'am. 14:58:50 4 There was a -- there were lots of people involved 14:58:55 5 here. I need to get some idea about each of them. We talked 14:59:00 6 a little bit about Michael -- I know this is hard for you. 14:59:03 7 You know, I need to put some proof on here, so I have your 14:59:07 8 permission to go ahead and ask you about these things. 14:59:10 9 A. That's okay. Sure. 14:59:13 10 Q. Well, Peggy, I mean, she lost her sister and her niece. 14:59:20 11 What did you observe about her loss? What did she lose? 14:59:27 12 A. A lot. 14:59:27 13 Q. A lot? 14:59:28 14 A. (Witness nods head.) 14:59:35 15 Q. And Neva can speak for herself, but you're just a little 14:59:38 16 bit outside of that to where you can look at it and you can 14:59:41 17 see it, so what has it been like for Neva having this loss? 14:59:52 18 A. A lot. I don't know how to describe it. 14:59:58 19 Q. One of those human things that you know when you see it? 15:00:02 20 A. Right, right. 15:00:12 21 Q. So we have talked a little bit about Michael's loss and 15:00:15 22 Peggy's loss and Neva's loss and we've talked about Tim's 15:00:20 23 loss. Could I talk with you about your own loss? 15:00:24 24 A. There's no words to describe it. 15:00:34 25 Q. You don't have to even try. You have said it. 530 15:00:37 1 MR. FITZGERALD: If I might have a moment, Your 15:00:50 2 Honor. 15:00:50 3 Thank you. 15:00:51 4 MR. GORMAN: Mimi -- I've got to know you as Mimi, 15:00:54 5 not Flo. Thank you for coming here today. I, as you know, 15:00:59 6 am real sorry, as are the rest of my friends, real sorry 15:01:03 7 about this tragedy and you know that. 15:01:05 8 THE WITNESS: Yes. 15:01:06 9 MR. GORMAN: Your Honor, I have no further questions. 15:01:08 10 Thank you very much, Mimi. 15:01:10 11 THE COURT: May Mrs. Reavis be permanently excused 15:01:13 12 from attendance here if she so chooses? 15:01:17 13 MR. FITZGERALD: I have one question in follow-up. 15:01:19 14 THE COURT: And after that she can be excused? 15:01:22 15 MR. FITZGERALD: Yes. 15:01:24 16 Q. (BY MR. FITZGERALD) Apologies are one thing, justice is 15:01:27 17 another; isn't that true? 15:01:28 18 MR. GORMAN: Your Honor, I will object to that. 15:01:29 19 That's -- 15:01:30 20 THE COURT: Sustained. 15:01:31 21 MR. GORMAN: That's out of line. I would ask the 15:01:33 22 jury to disregard that. 15:01:36 23 THE COURT: I will tell the jury to disregard the 15:01:38 24 question and any answer that they may have heard. 15:01:42 25 MR. FITZGERALD: May I ask the apology be stricken as 531 15:01:44 1 well? 15:01:45 2 THE COURT: Mr. Gorman. 15:01:46 3 MR. GORMAN: I was telling her I was glad she was 15:01:49 4 here, thank you, I am sorry for these tragedies. 15:01:52 5 THE COURT: I think enough is said. We will leave it 15:01:54 6 at that. 15:01:55 7 MR. FITZGERALD: Thank you, Your Honor. 15:01:56 8 THE COURT: Thank you, Mrs. Reavis. 15:01:58 9 THE WITNESS: I can leave? 15:01:59 10 THE COURT: Yes, you may. 15:02:40 11 No apology necessary. 15:02:40 12 MR. VICKERY: I have some proof to put on, Your 15:02:40 13 Honor. We're going to offer the video testimony of Bonnie 15:02:40 14 Rossello, vice-president with SmithKline Beecham. 15:08:41 15 (Videotape deposition of Bonnie Rossello played.) 15:08:46 16 THE COURT: Mr. Vickery, maybe we can break at this 15:08:49 17 point. 15:08:50 18 We will recess for 15 minutes. 15:08:53 19 (Recess taken 3:00 p.m. until 3:10 p.m.) 15:38:55 20 (Following in chambers out of the presence of the jury.) 15:38:55 21 THE COURT: On the record, it should reflect that 15:38:55 22 during a recess this matter comes before the Court in 15:38:55 23 chambers, the plaintiff represented by Mr. James Fitzgerald 15:38:55 24 and the defendant represented by Mr. Thomas Gorman, in order 15:38:55 25 to resolve objections to the deposition testimony of a 532 15:38:55 1 witness by the name of Father Thomas Ogg, O G G. 15:38:55 2 The first objection, and we will try to make these 15:38:55 3 quickly, is page 24, lines 5 through 13, and this is 15:38:55 4 plaintiffs' objection. 15:38:55 5 MR. FITZGERALD: Yes, Your Honor. I object that it 15:38:55 6 is irrelevant. He's just saying, "I'm not going to answer 15:38:55 7 that question." He doesn't add anything here that's 15:38:55 8 probative of any fact. There are other parts of the 15:38:55 9 deposition where he talks about facts relating to his visits 15:38:55 10 with Rita Schell. This is more or less a colloquy. 15:38:55 11 MR. GORMAN: My only response to that is this 15:38:55 12 demonstrates the thoughts of the witness, and he took it upon 15:38:55 13 himself on several occasions to tell us it was none of our 15:38:55 14 business, other than it just reflects on the credibility of 15:38:55 15 the witness. 15:38:55 16 THE COURT: I don't think it is relevant and is going 15:38:55 17 to help the trier of fact, so I'll sustain the objection. 15:38:55 18 MR. GORMAN: That's fine. 15:38:55 19 THE COURT: The next one I have is page 28, lines 3 15:38:55 20 through 6, and I believe this is the defendant's objection. 15:38:55 21 MR. GORMAN: That's right. Again, we want to make 15:38:55 22 sure that we stay -- and part of this is we want to make sure 15:38:55 23 we stay within the confines of the Court's ruling in terms of 15:38:55 24 the motions in limine about perceptions based on various 15:38:55 25 things. So we objected to this. 533 15:38:55 1 And it is just that. I think it is -- I think it is 15:38:55 2 not something that we need. It is not a perception that's at 15:38:55 3 all relevant here. Whether or not he was extremely shocked 15:38:55 4 about this really has nothing to do with this case. 15:38:55 5 THE COURT: Who took this deposition? 15:38:55 6 MR. GORMAN: We did. 15:38:55 7 THE COURT: Who asked the question? 15:38:55 8 MR. GORMAN: I'm sure we did, Judge. I'm sure Misha 15:38:55 9 asked the questions. Misha took the deposition. 15:38:55 10 THE COURT: Mr. Fitzgerald. 15:38:55 11 MR. FITZGERALD: There are other parts of the 15:38:55 12 deposition that lay the foundation for this question. He 15:38:55 13 talks about his parishioner, that he frequently saw him in 15:38:55 14 church, that he knew the family, had been to their home and 15:38:55 15 so this fits together with the point that he was extremely 15:38:55 16 shocked to hear that this had happened. 15:38:55 17 THE COURT: I don't see any probative value to the 15:38:55 18 fact he was shocked. The thing I was hesitating on -- it is 15:39:17 19 the defendant's question. They're stuck with the deponent's 15:39:17 20 answer. 15:39:17 21 MR. GORMAN: That's a discovery deposition, though, 15:39:17 22 Judge. 15:39:17 23 THE COURT: I agree. I'm going to sustain the 15:39:17 24 objection to that. I don't think it has any value to our 15:39:17 25 proceedings. 534 15:39:17 1 MR. GORMAN: One other thing before we leave that 15:39:17 2 page, in that note, since the objection on 24 was sustained, 15:39:17 3 are we going to scratch now that other material that you 15:39:17 4 wanted in case that objection was overruled, which was page 15:39:17 5 27, line 8 through 25? I think we can now strike that, can't 15:39:17 6 we? 15:39:17 7 MR. FITZGERALD: Yes, he speaks elsewhere of these 15:39:17 8 people counseling with Sister Agnes Claire. 15:39:17 9 THE COURT: Page 33, lines 1 through 13, and this the 15:39:17 10 plaintiffs' objection. 15:39:17 11 MR. FITZGERALD: May I speak to it? 15:39:17 12 THE COURT: You may. 15:39:17 13 MR. FITZGERALD: He says it was alluded to there was 15:39:17 14 a breakdown. Presumably he means it was alluded to by Don or 15:39:17 15 Rita. It really is hearsay and also whether it is a nervous 15:39:17 16 breakdown -- we've been calling his malady depression 15:39:17 17 throughout this case. 15:39:17 18 It throws a -- it makes it misleading to the jury to 15:39:17 19 have a discussion here -- this can be proved easily and has 15:39:17 20 been through many other sources which are credible based on 15:39:17 21 medical records for which there are good foundations. 15:39:17 22 And so I objected that the question was vague. I 15:39:17 23 also object on the grounds of relevance in this way, that it 15:39:17 24 is -- he can't even say which of these two alluded to it, and 15:39:17 25 it is too far afield and doesn't prove anything, and in fact, 535 15:39:17 1 is not even the truth. He didn't have a nervous breakdown, 15:39:17 2 he had depression. 15:39:17 3 MR. GORMAN: No, in 1994 he did have a nervous 15:39:17 4 breakdown, and I think Kevin Nelson will also testify about 15:39:17 5 that, and it is also in the police report about a nervous 15:39:17 6 breakdown in 1994. 15:39:17 7 Now, I wasn't there. I don't know if he had a 15:39:17 8 nervous breakdown. But that's what the evidence is. 15:39:17 9 I think the problem we have here is the balance of 15:39:17 10 the deposition -- and I know Your Honor hasn't read it -- 15:39:17 11 talks about, as Jim has just characterized, this is this 15:39:17 12 priest talking about two of his parishioners who attended 15:39:17 13 Mass, who he saw all the time, who in fact he did get into 15:39:32 14 counseling with Sister Mary Claire or whatever her name was. 15:39:32 15 And this obviously is a piece of information that was 15:39:32 16 related to him by Don and/or Rita Schell and is certainly 15:39:32 17 relevant to the issues in this case. And it was based on a 15:39:32 18 fact that one of them told him. 15:39:32 19 MR. FITZGERALD: May I just say one other thing? 15:39:32 20 THE COURT: Sure. 15:39:32 21 MR. FITZGERALD: Under the rules of evidence, even 15:39:32 22 though it is relevant it can be excluded if it tends to be 15:39:32 23 misleading or confusing. All of the folks Mr. Gorman just 15:39:32 24 mentioned are laypeople. Nelson is not a physician. All the 15:39:32 25 medical records we have, none of them refer to a nervous 536 15:39:32 1 breakdown. Even though they may have said it or used those 15:39:32 2 words, the probative value of this evidence is outweighed by 15:39:32 3 the danger of confusing and misleading the jury. 15:39:32 4 THE COURT: Quite frankly, I've heard so much 15:39:32 5 testimony in the last three days that has a tendency to do 15:39:32 6 that one way or the other, I'm going to overrule the 15:39:32 7 objection. I think that it is qualified by the "or something 15:39:32 8 of that nature." 15:39:32 9 And at first blush you may think it is confusing. It 15:39:32 10 is one little comment out of thousands of words of testimony 15:39:32 11 and I don't think it has much probative value one way or the 15:39:32 12 other. On the other hand, I don't think it is going to in 15:39:32 13 any way impair the jury's ability to weigh the evidence in 15:39:32 14 this case. Objection overruled. 15:39:32 15 Page 38, lines 19 through 25 and page 39, lines 1 15:39:32 16 through 7, is that part of it, and then the rest of it on the 15:39:32 17 bottom of page 39, part of the same objection. 15:39:32 18 MR. GORMAN: Well, no, I think the material on 38, 15:39:32 19 line 19 through 25 and 39, 1 through 7 has been ruled on 15:39:32 20 about your other -- where you sustained my objection about 15:39:32 21 his shock and all of that stuff. I think this is the same 15:39:32 22 thing here. 15:39:32 23 THE COURT: All right. Then -- 15:39:32 24 MR. GORMAN: And I think that should be out. 15:39:32 25 THE COURT: It goes on about shock. 537 15:39:32 1 MR. GORMAN: Right, and he's starting to talk about 15:39:32 2 the evidence is too obvious and in a place we took out now 15:39:32 3 down here later he -- what he's building up to is that I know 15:39:32 4 the pill caused it, and that's why that is all objected to. 15:39:32 5 And I think your earlier ruling applies to this objection 15:39:32 6 also. 15:39:32 7 MR. FITZGERALD: We agree that the part about the 15:39:32 8 pill did it does not come in. However, this is a man who has 15:39:49 9 observed this, once again, parishioner frequently and had 15:39:49 10 many opportunities to do so and he says it was out of 15:39:49 11 character for him to do so. And he says, "This was not the 15:39:49 12 man I knew," and this was already in the case it was out of 15:39:49 13 character for him, so corroborating this with observations 15:39:49 14 from people who actually knew him. 15:39:49 15 MR. GORMAN: Plus it is really not even in response 15:39:49 16 to a question. 15:39:49 17 THE COURT: Well, it is. It truly is. I thought 15:39:49 18 that at first, too, but I see that in his answer beginning on 15:39:49 19 line 15 he is prefacing his answer beginning at line 19 by 15:39:49 20 saying I just have a desire to say what I recall in response 15:39:49 21 to the question found in line 11. 15:39:49 22 I am willing to allow, "And it is going to be so out 15:39:49 23 of character" -- "out of context" -- excuse me. Beginning 15:39:49 24 line 21 with the sentence, "That was totally out of 15:39:49 25 character, out of context. I just have that deep sense of 538 15:39:49 1 sadness because this was not the man I knew. I mean, it is 15:39:49 2 like I don't want to believe it and yet it is there." 15:39:49 3 I will let that in and nothing else and I'm striking 15:39:49 4 the paragraph beginning line 3, page 39 because he's talking 15:39:49 5 about others. 15:39:49 6 Page 39, beginning line 19 and I believe concluding 15:39:49 7 on page 40, line 7, this is plaintiffs' objection. 15:39:49 8 MR. FITZGERALD: Let's see. Yes, there was -- I just 15:39:49 9 think this is very misleading to have this in here, Your 15:39:49 10 Honor. There's a description that they had a funeral service 15:39:49 11 that included all four of them and then it dissolves into 15:39:49 12 some discussion about Tim being upset with the services 15:39:49 13 being -- 15:39:49 14 THE COURT: Just a minute. 15:39:49 15 MR. GORMAN: I agree. I'll take it out. I agree 15:39:49 16 with Jim. 15:39:49 17 THE COURT: Objection sustained. 15:39:49 18 MR. GORMAN: I think we can take out 19, all of that 15:39:49 19 down, all the rest of that page, can't we, Jim? 15:39:49 20 MR. FITZGERALD: Yes. And I think that it goes clear 15:39:49 21 over, the same topic, to the end of page 40, line 7. And 15:39:49 22 the -- really this whole page here. 15:39:49 23 MR. GORMAN: Right, I think it is all out. I think 15:39:49 24 we have to take it all out. I think we're down to 42, line 5 15:39:49 25 is the next question and the next objection is on 42, Judge. 539 15:39:49 1 MR. FITZGERALD: Tom, so you and I are clear, all of 15:39:49 2 40 comes out, 41 comes out down to -- 15:39:49 3 MR. GORMAN: Line 4 on 42. 15:39:49 4 MR. FITZGERALD: Even beyond that it is -- 15:40:04 5 MR. GORMAN: No, I have 5 through 10, I think. 15:40:04 6 MR. FITZGERALD: On 41 you want -- 15:40:04 7 MR. GORMAN: No, on 42. 15:40:04 8 MR. FITZGERALD: Let's make sure you and I are 15:40:04 9 clear -- we don't have to take the Court's time on this. 41 15:40:04 10 is out of here? 15:40:04 11 MR. GORMAN: Yes. 15:40:04 12 MR. FITZGERALD: Picking up at 42, line 5? 15:40:04 13 MR. GORMAN: Yes. You have an objection beginning at 15:40:04 14 12, I think. 15:40:04 15 THE COURT: That's right. 15:40:04 16 MR. GORMAN: Maybe I have the objection. It must be 15:40:04 17 mine. 15:40:04 18 THE COURT: It is yours. 15:40:04 19 MR. GORMAN: I think he covered that in the earlier 15:40:04 20 answer that you kept in that this wasn't the guy he knew and 15:40:04 21 all of that. 15:40:04 22 MR. FITZGERALD: I'm lost. Pick up again at page 15:40:04 23 42 -- 15:40:04 24 THE COURT: Beginning line 11, ending line 21. 15:40:04 25 MR. GORMAN: That's stuff you designated, Jim. 540 15:40:04 1 MR. FITZGERALD: 11 to 21. And you're objecting. 15:40:04 2 MR. GORMAN: I think we've already had a dose of that 15:40:04 3 and I'm not sure we need to keep -- 15:40:04 4 MR. FITZGERALD: Well, he adds a little bit about 15:40:04 5 saying, "He was a nice guy and, as far as I knew, a good 15:40:04 6 husband and a good father." He talks about his love for his 15:40:04 7 family. If we can work a way to get some of that in, Your 15:40:04 8 Honor -- I would be willing to take out -- you know, it in no 15:40:04 9 way answers the question of why a person would do 15:40:04 10 such-and-such as a clear break from his normal livelihood and 15:40:04 11 lifestyle. You've let me have a portion of that. I would 15:40:04 12 like to have this part in about, "He was a gentle person. I 15:40:04 13 mean, he was just a nice guy, a good husband." 15:40:04 14 THE COURT: I will agree. 15:40:04 15 MR. GORMAN: So what are we taking out? 15:40:04 16 MR. FITZGERALD: I would start with on line 14, "He 15:40:04 17 was a gentle person," strike, "I don't know if you want to 15:40:04 18 know that." Strike the question, okay, and pick up again 15:40:04 19 with, "I mean, he was a nice guy. And his great love for his 15:40:04 20 family," and stop. 15:40:04 21 MR. GORMAN: And then take out, "That's why I 15:40:04 22 just" -- okay, that's fine. I can live with that. 15:40:04 23 THE COURT: Page 51, defendant's objection beginning 15:40:04 24 line 18 and continuing on to page 52 through line 20. 15:40:04 25 MR. GORMAN: That's just more of the same: Great 541 15:40:04 1 guy, loving father, loved his wife, his kids, dogs and cats 15:40:04 2 and we've had a lot of that now. It is just more of the same 15:40:04 3 and I think it is duplicative and unduly emphasizes all of 15:40:04 4 this unduly. 15:40:04 5 MR. FITZGERALD: Part of the foundation for this. He 15:40:04 6 says they had a good marriage. 15:40:04 7 MR. GORMAN: And you get that over here on the next 15:40:21 8 page anyway again. 15:40:21 9 MR. FITZGERALD: But he explains the reason they're 15:40:21 10 in to see him, that whatever stress or strain there may have 15:40:21 11 been in the marriage is because Don was not on the top of the 15:40:21 12 gauge but -- 15:40:21 13 MR. GORMAN: No, that's not the objection. The 15:40:21 14 objection is beginning at line 18. 15:40:21 15 MR. FITZGERALD: Sorry. I only designated 9 through 15:40:21 16 17. 15:40:21 17 MR. GORMAN: Well, if that's not even in, that's 15:40:21 18 fine. 15:40:21 19 MR. FITZGERALD: You designated 9 and 10. 15:40:21 20 MR. GORMAN: I thought you had designated that other 15:40:21 21 part. That's why I put the other part in there. 15:40:21 22 MR. FITZGERALD: You designated 16 and 17 so I stuck 15:40:21 23 in through -- 15:40:21 24 MR. GORMAN: 18 through 25 on page 51 and all of 52 15:40:21 25 is out. 542 15:40:21 1 MR. FITZGERALD: Nobody designated that. 15:40:21 2 MR. GORMAN: Then that answers that, Judge. 15:40:21 3 MR. FITZGERALD: This is going to be very confusing. 15:40:21 4 We need to cue each other, okay? 15:40:21 5 MR. GORMAN: Do I get to be a doctor and a father in 15:40:21 6 the same case? 15:40:21 7 THE COURT: Scary. 15:40:21 8 Page 52, line -- 15:40:21 9 MR. GORMAN: No, 52 is all out now so I assume 53 -- 15:40:21 10 MR. FITZGERALD: I'm having a hard time. 52 is out. 15:40:21 11 You designated some things on 52. Are you withdrawing those? 15:40:21 12 MR. GORMAN: I highlighted it. It was part of an 15:40:21 13 answer. I don't even know what it went to. 15:40:21 14 MR. FITZGERALD: So you're not designating that 15:40:21 15 anymore? 15:40:21 16 MR. GORMAN: No, I think 52 is all out and I think up 15:40:21 17 through 53, lines 1 through 10 or 15, quite frankly. 15:40:21 18 MR. FITZGERALD: So I had designated here that "She 15:40:21 19 was a dedicated wife in your observation." The issue was not 15:40:21 20 the relationship between them, to my knowledge -- no, I'm on 15:40:21 21 52 and 53. "She stayed with him voluntarily and eagerly." 15:40:21 22 MR. GORMAN: I don't know that he's even capable of 15:40:21 23 saying that she stayed with him voluntarily and eagerly. I 15:40:21 24 guess I didn't know that was in. 15:40:21 25 MR. FITZGERALD: I had added -- 543 15:40:21 1 MR. GORMAN: Well, I would object to that. He can't 15:40:21 2 say that. 15:40:21 3 THE COURT: Let's strike lines 6 through 10. 15:40:21 4 MR. FITZGERALD: And the others come in? 15:40:21 5 THE COURT: You can keep 25 on page 52. 15:40:21 6 MR. GORMAN: Just that one line? 15:40:21 7 THE COURT: And then through line 5 on page 53. 15:40:21 8 MR. FITZGERALD: If either of us makes an error here, 15:40:21 9 it won't be in bad faith. We will agree. 15:40:35 10 MR. GORMAN: Then that's it? 15:40:35 11 MR. FITZGERALD: That's where you stop. 15:40:35 12 MR. GORMAN: Thank you, Judge. 15:40:35 13 THE COURT: All right. 14 (Discussion held.) 15:40:35 15 MR. FITZGERALD: 53, line 18 -- this is Miss Westby's 15:40:35 16 questions -- I just have two more. "Did Rita express any 15:40:35 17 fear of Don to you?" And he -- the rest of it is about 15:40:35 18 concern for his well-being, concern for in reference to him, 15:40:35 19 I never heard that. 15:40:35 20 THE COURT: Let me have the deposition back. 15:40:35 21 MR. GORMAN: 53 is where he's talking. I guess we're 15:40:35 22 just going over the same stuff over and over again. 15:40:35 23 THE COURT: Where are we? 15:40:35 24 MR. FITZGERALD: We would start on page 53, line 18 15:40:35 25 with the words "Did Rita ever...," and we would continue to 544 15:40:35 1 the end of line 22. 15:40:35 2 THE COURT: I never thought that there was an 15:40:35 3 objection to that. 15:40:35 4 MR. GORMAN: I guess I didn't know it was even 15:40:35 5 designated. Did I? 15:40:35 6 THE CLERK: I didn't have it down. 15:40:35 7 THE COURT: You want to strike that? 15:40:35 8 MR. FITZGERALD: I want to put it in. 15:40:35 9 THE COURT: When I handed the thing over it was in. 15:40:35 10 MR. GORMAN: I didn't know it was in. Other than I 15:40:35 11 think it is just more of the same that we've already got in 15:40:35 12 there three or four times now. 15:40:35 13 THE COURT: I'll let it stand. It wouldn't be the 15:40:35 14 first time we've had repetition. 15:40:35 15 MR. GORMAN: Really. 15:40:35 16 THE COURT: Thank you very much. 15:40:35 17 (Proceedings in chambers concluded 3:30 p.m. 18 and reconvened in open court 3:32 p.m.) 15:40:35 19 (Following in the presence of the jury.) 15:40:35 20 THE COURT: For the record, we're continuing with 15:40:35 21 the video deposition of -- 15:40:35 22 MR. VICKERY: Bonnie Rossello, Your Honor. 15:40:35 23 THE COURT: -- Bonnie Rossello. 15:40:35 24 (Videotape deposition of Bonnie Rossello played.) 15:54:00 25 MR. VICKERY: Your Honor, by agreement of counsel 545 15:54:02 1 we'll read the next segment. 15:54:05 2 The next question is, "Give me an idea" -- it was 15:54:07 3 not. It drops to line 22. 15:54:10 4 "How much of that budget is for those TV ads we see 15:54:13 5 for the social phobia indication of Paxil?" 15:54:17 6 The witness said: "Versus the print?" 15:54:19 7 Lawyer: "Right." 15:54:22 8 Witness: "I am not sure. Probably in the range of 15:54:25 9 60 to 70 percent." 15:54:26 10 Question: "60 to 70 percent is the TV?" 15:54:32 11 Answer: "Yes." 15:55:12 12 (Videotape deposition of Bonnie Rossello played.) 16:04:33 13 MR. VICKERY: That concludes our offer from the 16:04:36 14 deposition of this witness, Your Honor. 16:04:38 15 If I may speak with Mr. Fitzgerald for a minute. 16:04:58 16 MR. FITZGERALD: Your Honor, Mr. Gorman has 16:05:00 17 courteously agreed to read the part of the next witness which 16:05:04 18 we'll present by deposition. 16:05:05 19 THE COURT: Very well. Thank you. 16:05:31 20 MR. FITZGERALD: Mr. Gorman, I believe we start on 16:05:33 21 page 4, line 7. 22 MR. GORMAN: That's correct. 16:05:36 23 Q. "For the record, please give your full name and address. 16:05:41 24 A. I'm Father Thomas G., for George, Ogg, O G G, and I live 16:05:47 25 at 1115 East Third Street in Powell. Is that a sufficient 546 16:05:54 1 address?" 16:05:56 2 MR. FITZGERALD: Question on line 15. 16:05:58 3 Q. "And I'm assuming that the church next door is your 16:06:02 4 church; is that correct? 16:06:03 5 A. Saint Barbara's Catholic Church. 16:06:06 6 Q. And how long have you been at Saint Barbara's Church? 16:06:09 7 A. Since a year ago October, so about a year and a half. 16:06:12 8 Q. And where did you come from? 16:06:13 9 A. I was stationed in Gillette, Wyoming at Saint Matthew's 16:06:16 10 Catholic Church for 13 years." 16:06:18 11 MR. FITZGERALD: I believe we go to page 5, line 6. 16:06:22 12 Q. "Give me a little bit of background, educational 16:06:25 13 background. What schooling did you attend, what kinds of 16:06:28 14 degrees do you hold, those kinds of things? 16:06:30 15 A. I grew up in Worland, graduated from high school there. 16:06:34 16 My next degree was in agriculture from the University of 16:06:39 17 Wyoming. 16:06:39 18 Q. And is that a BS? 16:06:41 19 A. Yes, in agriculture. Then I went to Saint Thomas 16:06:45 20 Theological Seminary in Denver, and there I received a 16:06:49 21 Bachelor of Arts in philosophy, a Master's degree in 16:06:53 22 religious education. And then three years after I was 16:06:58 23 ordained a priest, which was in 1968, the Bishop sent me back 16:07:04 24 to school and I now have a Ph.D. in guidance and counseling, 16:07:09 25 marriage counseling. 547 16:07:10 1 Q. Where did you earn that degree? 16:07:11 2 A. From the University of Wyoming in 1975. 16:07:14 3 Q. What did you do after you received your doctorate? 16:07:18 4 A. I always pastored in Wyoming which is where I asked to be 16:07:22 5 and will always be, in the Diocese of Cheyenne, which is the 16:07:25 6 equivalent to the state of Wyoming. And I served in -- do 16:07:30 7 you want to know all the churches? 16:07:33 8 Q. Yes, please. 16:07:34 9 A. You do? Okay. Saints Cyril and Methodius whose Feast Day 16:07:39 10 is today, and that's in Rock Springs. Then in Laramie at 16:07:42 11 Saint Paul's Newman Center. Then at Saint Lawrence O'Toole 16:07:46 12 in Laramie, the downtown parish. Then Saint Anthony's in 16:07:50 13 Casper, back to Laramie at the Newman Center in residence 16:07:54 14 while I was vocation director for the diocese, which meant I 16:07:58 15 traveled the state and encouraged men and women to consider 16:08:02 16 religious vocations, recruiter if that word fits better; and 16:08:07 17 then assigned in addition to that to Glenrock to Saint Louis 16:08:13 18 Parish. That was seven years. And then 17 years in Gillette 16:08:16 19 at Saint Matthew's, as I mentioned, a year and a half here at 16:08:20 20 Saint Barbara's. 16:08:22 21 Q. And how does the Ph.D. in guidance and marriage 16:08:25 22 counseling -- how does that fit into your vocation as a 16:08:29 23 priest? And I'm assuming it has some connection since the 16:08:32 24 church sent you back for the education; is that correct? 16:08:36 25 A. Yes. 548 16:08:36 1 Q. How does that fit into your vocation? 16:08:39 2 A. I've used that specifically on the church's marriage 16:08:42 3 tribunal which looks at broken marriages, which looks at the 16:08:46 4 possibility for a church annulment. 16:08:48 5 I've used it in vocation ministry obviously to help 16:08:51 6 people discern their call from God. 16:08:53 7 I've used it on the road, meaning everywhere I've 16:08:57 8 been, plus in the parish ministry with counseling family and 16:09:01 9 individuals in marriage difficulties. So it has been used 16:09:06 10 about as much as my -- actually more, but I like to think I 16:09:09 11 started with a BS in agriculture and I've never lost that 16:09:13 12 one. 16:09:13 13 Q. Do you only counsel to your parishioners? 16:09:16 14 A. No, I've never asked -- that's not been a concern. My 16:09:24 15 desire is to help people. 16:09:24 16 Q. Even if they're not Catholic, even if they are just 16:09:24 17 somebody in the community and they request your help, you 16:09:25 18 will do that as well? 16:09:26 19 A. I will and I do, yes." 16:09:29 20 MR. FITZGERALD: Now I believe we go to line 6. 16:09:33 21 Q. "Right. When did you first meet Don or Rita or both of 16:09:38 22 them? And I'm assuming it would have been in Gillette; is 16:09:41 23 that correct? 16:09:42 24 A. Yes, that's correct. 16:09:42 25 Q. And do you recall generally when you first met them? 549 16:09:45 1 A. I do not remember the time sequence that well, so I could 16:09:48 2 not even give you a year because I don't remember so I'm not 16:09:51 3 going to say. It is like I don't remember not knowing them 16:09:54 4 being in Gillette. 16:09:58 5 Q. Do you believe, were they attending -- was that Saint 16:10:01 6 Matthew's? 16:10:03 7 A. Yes. 16:10:03 8 Q. Were they attending Saint Matthew's as far as you know 16:10:06 9 when you took over that church? 16:10:08 10 A. See again, I can't say when I first formally met them to 16:10:11 11 where I can say yes, I know who that person is or those 16:10:14 12 people are, but I did get to know them quite well only 16:10:18 13 because Don and sometimes Rita would come to daily Mass as 16:10:21 14 well as to Sunday services, so it was a much more personal or 16:10:25 15 direct relationship. 16:10:28 16 So I did know them. Now, as for what year, I 16:10:31 17 couldn't say that." 16:10:32 18 MR. FITZGERALD: Now we continue on here. 16:10:35 19 Q. "When you say daily Mass, what time did daily Mass take 16:10:38 20 place? 16:10:39 21 A. Just before God wakes up. It is actually the -- the Mass 16:10:44 22 was the -- when I first got there it moved rapidly from 7:00 16:10:48 23 a.m. to 6:45 in the morning and then at 5:15 in the 16:10:52 24 afternoon. 16:10:52 25 Q. What time did they attend daily Mass when they did that? 550 16:10:56 1 A. They would come often. Don, I say more than Rita, but 16:10:59 2 they would usually often both be there at either time. It 16:11:04 3 varied. 16:11:05 4 Q. If you can, give me a general idea approximately how many 16:11:07 5 times a week would they -- would Don attend daily Mass. 16:11:11 6 A. For a couple of years before that awful tragedy it was, 16:11:16 7 you know -- it was constant or regular. I would say maybe 16:11:19 8 twice a week. I'm just guessing but it was with some 16:11:22 9 regularity. And like often people do, they sit in the exact 16:11:26 10 same pew, the same spot each time so it is -- you notice if 16:11:33 11 they are there. 16:11:34 12 Q. What pew did they sit in? Did they sit up front or in the 16:11:38 13 back? 16:11:38 14 A. The church is octagonal so now we have to be specific, 16:11:42 15 right? 16:11:43 16 Q. That's right. 16:11:43 17 A. They sat in the second section from my right, all right? 16:11:47 18 And if I'm looking at the congregation, the second section 16:11:52 19 from the right, about two-thirds back. And they sat directly 16:11:55 20 in between myself and the vestibule. All the light stands 16:12:00 21 were in the back there, the votive lights, so, I mean, it 16:12:04 22 was -- that's one of my quirks. I like to see some order, so 16:12:08 23 I line them up. 16:12:10 24 Q. So if Don was attending approximately two times a week, 16:12:13 25 how often would Rita be with him? 551 16:12:15 1 A. I would say more often than not, so translate that, I 16:12:19 2 don't know, 50, 60 percent of the time. 16:12:21 3 Q. Did you notice any mannerisms, certain ways they sat when 16:12:24 4 they were in church generally? 16:12:25 5 A. Nothing unusual for a Catholic. I mean, they followed the 16:12:28 6 sequence, the flow of the Mass. We stand, we sit, we kneel. 16:12:33 7 Q. Did they sit close to each other, far apart? Did he have 16:12:36 8 his arm around her generally, anything like that? 16:12:40 9 A. They sat as most husbands and wives do in our Catholic 16:12:43 10 tradition which approximates close but it is not a time for 16:12:47 11 emotional display. Our Catholics are not good at that. 16:12:52 12 Q. Did he have his arm around her usually when they were in 16:12:55 13 church? Do you remember? 16:12:56 14 A. There were times he did. I remember he would sit -- he 16:13:00 15 would sit back in the pew. How do you talk like this, put 16:13:04 16 that on paper -- puts his hands on both sides of himself and 16:13:08 17 Rita is obviously under one of those. But it was not like he 16:13:13 18 was holding her as much as being in that position. 16:13:16 19 Q. Okay. And you said that was more of a personal kind of 16:13:19 20 thing. I'm assuming the daily Mass because there were fewer 16:13:23 21 people so you had more of a chance to talk to people maybe. 16:13:27 22 Was it the same as the Sunday Mass when you would stand and 16:13:30 23 greet people at the end of service or did you do that 16:13:32 24 generally? 16:13:33 25 A. Yes, I always did that. But there's a number of doors, so 552 16:13:37 1 often I would be at the main entrance and they would go out 16:13:39 2 the side door to my right which would be to the south in that 16:13:45 3 church. 16:13:45 4 Q. When you did talk to them, how did they appear to you? 16:13:49 5 Did anything strike you as unusual when they would talk to 16:13:53 6 you during their attendance at these daily masses? Anything 16:13:56 7 ever concern you? 16:13:57 8 A. Concern me? I was aware that Don was not a happy camper. 16:14:04 9 Q. And how were you aware of that? 16:14:04 10 A. My desire to know and love people and I guess my training. 16:14:07 11 There was times when he would be sad or depressed." 16:14:11 12 MR. FITZGERALD: Going to line 18. 16:14:14 13 Q. "Can you give me a general idea of how often it happened 16:14:17 14 that you were concerned about him being sad or depressed? 16:14:20 15 A. I would say off and on. I mean, was not consistent one or 16:14:25 16 the other. 16:14:28 17 Q. How could you tell that he was sad or depressed?" 16:14:31 18 MR. FITZGERALD: And I think we can go to 13, line 11 16:14:35 19 where he answers that. 16:14:38 20 A. "In visiting with Don after services on occasion we would 16:14:42 21 talk in generic or general ways about how he is doing. 16:14:46 22 There's times when I believe that I can, like most concerned 16:14:50 23 people, notice when somebody's mood has changed. So it is 16:15:00 24 not magic. It is a natural, human reaction. So how can I? 16:15:04 25 I think that's how I'm answering it. 553 16:15:06 1 Q. Would he express to you that he was sad or depressed? 16:15:08 2 A. In general ways, yes. 16:15:10 3 Q. How do you mean, general ways? 16:15:11 4 A. Well, I do know -- and that's where I jump off the deep 16:15:14 5 end. I know he was visiting with a person on our staff, 16:15:18 6 Sister Agnes Claire, who was a professional counselor, and so 16:15:23 7 he was visiting with her with some regularity so I didn't 16:15:35 8 butt in. I deliberately know my limits in that area. 16:15:39 9 We talked as parishioner, pastor rather than 16:15:44 10 counseling mode, so I never got into that dimension 16:15:47 11 deliberately, knowing that he was receiving some counsel or 16:15:51 12 guidance. 16:15:52 13 Q. You didn't want to interfere with what Sister Agnes Claire 16:15:55 14 was doing for Don or how she was trying to help him; is that 16:16:00 15 correct? 16:16:00 16 A. That's correct." 16:16:01 17 MR. FITZGERALD: Am I correct we move to page 17, 16:16:03 18 line 10? 16:16:03 19 MR. GORMAN: Yes. 16:16:04 20 Q. "Am I correct, then, in assuming or understanding from you 16:16:07 21 that you did not provide counseling to the Schells? 16:16:09 22 A. That is correct, Sister Agnes Claire did. Unfortunately, 16:16:14 23 as you probably already know, she passed away last November. 16:16:18 24 Q. Do you know if she kept records of her counseling 16:16:21 25 sessions? 554 16:16:22 1 A. Yes, I know that. And she did. 16:16:23 2 Q. Okay. 16:16:25 3 A. I also know they were destroyed when she left Gillette 16:16:28 4 because I helped in that process. 16:16:31 5 Q. Okay. 16:16:32 6 A. We shredded everything that she was not going to take with 16:16:35 7 her, and those counsel -- counselees, clients, whatever term 16:16:41 8 you use for them that she referred back to me, I inherited 16:16:44 9 those records. 16:16:45 10 Q. But that was not Don and Rita Schell? 16:16:47 11 A. No, none whatever. 16:16:50 12 Q. When did she leave Gillette? 16:16:52 13 A. I'm guessing five years ago now. 16:16:54 14 Q. So as far as you knew, then, after she left, Don and Rita 16:16:58 15 never received counseling from anyone at the church after 16:17:01 16 that point; is that correct? 16:17:02 17 A. Correct." 16:17:03 18 MR. FITZGERALD: Okay. Now do I understand correctly 16:17:05 19 that we move to page 20, line 25? 16:17:12 20 MR. GORMAN: Correct. 16:17:13 21 Q. "Generally do you recall what kinds of things he told you 16:17:14 22 that made you believe he was sad or depressed? 16:17:17 23 A. I know he had some depression from him. I knew that he 16:17:23 24 was on some medication. I never heard what it was, what it 16:17:27 25 might have been. And just in visiting after church as people 555 16:17:31 1 are leaving you get a sense or flavor of what is happening in 16:17:34 2 a relationship or in a situation. 16:17:37 3 I did talk to Rita independently on an occasion or 16:17:41 4 two that I can recall that only indicated her concern for 16:17:46 5 him. That's about the sum of my memory with that family up 16:17:49 6 to that point. 16:17:51 7 Q. And by up to that point, do you mean up to the point of 16:17:54 8 their death? 16:17:55 9 A. Well, I was involved in that." 16:17:57 10 MR. FITZGERALD: Now we go to 21, line 19. 16:18:01 11 Q. "Let me ask you a couple more specific questions. When 16:18:04 12 you say that you knew that he had some depression from things 16:18:07 13 that he had told you, did he ever use that word 'depression' 16:18:10 14 that you can remember? 16:18:12 15 A. I don't remember. I am not going to say I could say for 16:18:16 16 sure yes or for sure no. I mean, sometimes you don't need to 16:18:21 17 use the word. If someone is sad-faced, you presume and I 16:18:26 18 presume they know there's a sadness or a joy, the opposite of 16:18:29 19 that. So I'm saying that it was not an unpublic fact if 16:18:34 20 people are observant." 16:18:38 21 MR. FITZGERALD: Then we continue on here, correct? 16:18:41 22 MR. GORMAN: Right. 16:18:42 23 Q. "And I know what you mean. And then that you knew he was 16:18:44 24 on some medication, did he tell you that he was on medication 16:18:47 25 for it or did Rita tell you? 556 16:18:50 1 A. I'm sure both did because we did talk more than a few 16:18:53 2 times over those. 16:18:54 3 Q. And you were -- were you aware of what purposes the 16:18:57 4 medication was serving, you know, what he was taking the 16:19:00 5 medication for? 16:19:01 6 A. No, I left that to someone else." 16:19:03 7 MR. FITZGERALD: Now, 23, line 4. 16:19:07 8 MR. GORMAN: No, I think 23, line 13. 16:19:13 9 Q. "You said that you talked to her a couple of times without 16:19:15 10 Don being present. Do you recall under what circumstances 16:19:18 11 those discussions would have taken place? 16:19:20 12 A. Concern for Don. 16:19:21 13 Q. So she came to see you specifically out of concern for 16:19:25 14 Don? 16:19:25 15 A. Well, and herself, obviously. She's an active member of 16:19:30 16 the family." 16:19:39 17 MR. FITZGERALD: Now we go to -- 16:19:42 18 MR. GORMAN: 27, 2. 16:19:43 19 Q. "Did Rita come to you for counseling? 16:19:46 20 A. I don't know why people come to me. She came with a 16:19:48 21 concern. Is that -- see, now, you know, this is where it 16:19:54 22 gets confusing. I'm just saying she did come. We did visit. 16:19:58 23 The decision was that she and/or Don would go to Sister Agnes 16:20:04 24 Claire." 16:20:05 25 MR. FITZGERALD: And now we go to 28, line 19. 557 16:20:07 1 Q. "So basically when Rita came to see you about concerns 16:20:11 2 with Don, you referred them first of all to Sister Agnes 16:20:14 3 Claire and whenever she came to see you while she and/or Don 16:20:19 4 were seeing Sister Agnes Claire, you basically just referred 16:20:23 5 her back to Sister Agnes Claire; is that correct? 16:20:26 6 A. No, we shared as pastor and parishioner, not as counselor. 16:20:30 7 Q. Okay. Did she relate problems to you about her marriage 16:20:33 8 or was it specifically concerns with Don's emotional state or 16:20:38 9 psychological state? 16:20:44 10 A. Anytime a spouse is hurting it directly involves the other 16:20:47 11 spouse. I don't know if it is important at this time to try 16:20:49 12 to make that distinction. If one is hurting, the other is 16:20:52 13 hurting, so it does affect the marriage -- so does it affect 16:20:56 14 the marriage? Yes, it does. Is it a personal issue? Not 16:21:00 15 necessarily. 16:21:01 16 So I found nothing that there was a tension 16:21:05 17 between -- so I found nothing that there was a tension 16:21:09 18 between Rita and Don. That's not where I'm coming from. 16:21:12 19 Q. She's coming out of concern -- 16:21:15 20 A. She's coming out of concern for somebody she knows and 16:21:18 21 loves." 16:21:18 22 MR. FITZGERALD: Thank you, Mr. Gorman. 16:21:20 23 Q. "Do you have -- can you give me an estimate of the number 16:21:23 24 of times during your -- during the time period that you knew 16:21:27 25 Don and Rita Schell that you were concerned about his 558 16:21:30 1 emotional state, that you felt like he was sad or depressed? 16:21:34 2 A. I was never concerned in terms of something serious. I 16:21:37 3 was under the distinct impression that with his medication 16:21:41 4 and with his getting assistance, help emotionally or 16:21:44 5 pastorly, however words you want to use that, that things 16:21:48 6 were going forward. The relationship -- I don't mean 16:21:55 7 relationship. I'm talking about his well-being was stable 16:21:59 8 and adequate for the day. 16:22:02 9 Q. But do you recall how many times during the time period 16:22:05 10 that you knew him when he seemed sad or depressed to you, 16:22:09 11 maybe is the better way to say that since those are the terms 16:22:12 12 you used? 16:22:13 13 A. I don't have a number for you. I have the impression of 16:22:17 14 there being some cyclic ups and downs, which is very human. 16:22:24 15 It is not unnatural. 16:22:25 16 Q. Do you have any feeling about how long a period of time 16:22:27 17 these cycles were? Like was it every six months, once a 16:22:31 18 year? Do you have any feeling like that? 16:22:33 19 A. You use a feeling. I have a sense that it was several 16:22:36 20 times, you know, the cyclics were up and down weekly or maybe 16:22:41 21 even monthly" -- 16:22:43 22 MR. FITZGERALD: Actually, that was weren't up. 16:22:45 23 MR. GORMAN: I'm sorry, you're right. Let me start 16:22:48 24 over with the answer. 16:22:49 25 A. "You use a feeling. I have a sense that it was several 559 16:22:53 1 times. You know, the cyclics weren't up and down weekly or 16:22:59 2 maybe even monthly. But I didn't chart it, so I don't -- I 16:23:03 3 have an impression that maybe he had those big waves several 16:23:06 4 times a year, maybe. I don't know that." 16:23:11 5 MR. FITZGERALD: Now 31, 10. 16:23:13 6 Q. "Did you not feel that you treated Don or Rita Schell as a 16:23:17 7 psychiatrist or counselor? 16:23:18 8 A. I did not. 16:23:19 9 Q. Did you keep any records or notes of your conversations 16:23:21 10 with the Schells? 16:23:22 11 A. No. 16:23:22 12 Q. Did the Schells ever indicate to you that Don had any kind 16:23:25 13 of reaction to the medication that he was taking, either good 16:23:28 14 or bad? 16:23:30 15 A. We did not go into those details. I did not go into those 16:23:34 16 details with them." 16:23:38 17 MR. FITZGERALD: Now 32, line 3. 16:23:40 18 Q. "We know based on the history that Don experienced losses 16:23:43 19 in his family during this time. I guess Rita's father passed 16:23:46 20 away and -- during this time, I'm talking of the period you 16:23:49 21 would have known him -- his brother passed away. 16:23:52 22 How did those losses affect him? 16:23:54 23 A. I think quite like most people. They may have been the 16:23:57 24 cause for the ups and downs of his emotional state. I don't 16:24:01 25 know. I do know that it was -- I remember enough of that to 560 16:24:10 1 say yeah, that affects people. 16:24:10 2 Q. Do you know anybody besides Sister Agnes Claire who was 16:24:11 3 treating Don for his problems? 16:24:12 4 A. I don't know any other person that was involved in that 16:24:15 5 health care. 16:24:16 6 Q. Did Don ever mention to you concerns that he may have had 16:24:19 7 with work? 16:24:20 8 A. Yes. 16:24:20 9 Q. And do you recall what those concerns were? 16:24:23 10 A. No. I mean, I couldn't even -- I would have to be 16:24:26 11 guessing. 16:24:27 12 Q. Do you recall when he expressed concerns about work to 16:24:31 13 you? 16:24:32 14 A. This, as I do recall, was several years before the 16:24:35 15 tragedy. 16:24:37 16 Q. How about anything in close proximity to their deaths? Do 16:24:39 17 you recall anything, any concern about work? 16:24:41 18 A. I do not." 16:25:02 19 MR. GORMAN: We go to 33, line 8. 16:25:05 20 MR. FITZGERALD: What was the ruling? 16:25:05 21 MR. GORMAN: That was. 16:25:06 22 Q. "Were you aware of a nervous breakdown or something of 16:25:09 23 that nature that Don may have suffered in 1993 or 1994? 16:25:12 24 A. It was alluded to. 16:25:13 25 Q. Was it alluded to by Don or Rita Schell or both? 561 16:25:18 1 A. I don't -- I mean, I'm aware of that information. That's 16:25:20 2 all." 16:25:30 3 MR. FITZGERALD: We're clear over to page 38. 16:25:33 4 MR. GORMAN: 38, 11. 16:25:34 5 Q. "What kind of sense did you get from the family, from 16:25:38 6 Rita's family and if you talked to Tim Tobin's family about 16:25:41 7 their thoughts and what had happened? 16:25:43 8 A. I'm going to answer a different question so I may not be 16:25:46 9 answering your question, but I just have a desire to say what 16:25:48 10 I recall. 16:25:49 11 Q. Okay. 16:25:50 12 A. That was totally out of character, out of context. I just 16:25:54 13 have that deep sense of sadness because this man was not the 16:25:58 14 man I knew. It is like I don't want to believe it and yet it 16:26:05 15 is there." 16:26:07 16 MR. FITZGERALD: 39, line 18. 16:26:08 17 Q. "Did you conduct or -- and I don't know what the right 16:26:11 18 word is. Did you perform the funeral service? 16:26:14 19 A. Yes. 16:26:15 20 Q. And it is my understanding that that funeral service 16:26:18 21 included all four of them; is that correct? 16:26:20 22 A. Yes." 16:26:30 23 MR. FITZGERALD: What do your notes reflect? 16:26:32 24 MR. GORMAN: 42, 5. 16:26:34 25 MR. FITZGERALD: I agree. 562 16:26:43 1 Q. "Would you agree he suffered from depression prior to this 16:26:47 2 time? 16:26:47 3 A. I did say that -- I did say that, you know, he had periods 16:26:50 4 of ups and downs. He was a gentle person. I mean, he was 16:26:56 5 just a nice guy and as far as I knew, a good husband, a good 16:27:00 6 father. And I do know with some personal awareness his great 16:27:06 7 love for his family. 16:27:15 8 Q. Did you ever go to the Schell home when Don was suffering 16:27:18 9 from depression or sadness or something? 16:27:19 10 A. I want to say no because mostly it was the other way 16:27:22 11 around. He would come to the office. 16:27:24 12 Q. Were you aware of any concern by Don or Rita Schell about 16:27:27 13 suicide or Don feeling like he wanted to commit suicide? 16:27:30 14 A. I was not. 16:27:31 15 Q. When you were aware that Don was sad or depressed, did you 16:27:33 16 notice any physical manifestations of that? 16:27:36 17 A. No. I mean, nothing unusual which was noted to a 16:27:39 18 startling degree. 16:27:41 19 Q. Did you notice any shaking, his hands shaking? 16:27:46 20 A. No, that's what I mean." 16:27:47 21 MR. FITZGERALD: And now are we over to 46? 16:27:49 22 MR. GORMAN: Yes, line 19. 16:27:51 23 Q. "Would it be correct, then, to say that you're not aware 16:27:54 24 of any significant pattern change in his behavior or physical 16:28:01 25 manifestations or whatever in the months before this 563 16:28:04 1 incident? 16:28:06 2 A. That is correct. In other words, the patterns would not 16:28:09 3 have given me a clue or hint or indication that things were 16:28:12 4 getting noticeably worse or better. 16:28:15 5 Q. And I take it, Father Ogg, you probably describe yourself 16:28:18 6 pretty much as a people person, wouldn't you? 16:28:21 7 A. Yes. 16:28:21 8 Q. And you tend to watch people pretty carefully, especially 16:28:24 9 in your flock, shall we say? 16:28:28 10 A. I tend to do that. 16:28:54 11 Q. Did Rita Schell confide in you or discuss specific 16:28:54 12 concerns with you about Don Schell? 16:28:54 13 A. I did say yes earlier insofar as she was concerned about 16:28:54 14 his being depressed or down. 16:28:54 15 Q. Okay. 16:28:54 16 A. That was early on, years before." 16:28:55 17 MR. FITZGERALD: Page 51. 16:29:00 18 Q. "You saw these people a lot, were at their home, you saw 16:29:02 19 them at your church. Were they a loving couple? 16:29:05 20 A. I would say they had a good marriage. Now, is that 16:29:09 21 answering your question? See, I'm just saying yes, they 16:29:13 22 cared for each other. I think I heard the question implying 16:29:16 23 that maybe there was something wrong with the marriage, per 16:29:19 24 se, in itself. And I would say no, that the stress or the 16:29:23 25 strain that may have been in the marriage was because Don was 564 16:29:27 1 not on top of his game." 16:29:37 2 MR. FITZGERALD: 51, line 25. 16:29:39 3 MR. GORMAN: 52, 25. 16:30:37 4 MR. FITZGERALD: 51, 25 starting with the word was. 16:30:37 5 I think we can go -- the sense of it is set forth in 52, line 16:30:37 6 25. 16:30:37 7 Q. "Rita was a dedicated wife in your observation, right? 16:30:37 8 A. Yes, I would say that. 16:30:37 9 Q. The issue then was not the relationship between them, was 16:30:37 10 it? 16:30:37 11 A. To my knowledge, no. 16:30:37 12 Q. To your knowledge" -- 16:30:37 13 MR. GORMAN: No, that's out. 16:30:37 14 MR. FITZGERALD: Go to line -- 53, line 18. 16:30:37 15 Q. "Did Rita ever express any fear of Don to you? 16:30:37 16 A. I would not use that word, no, fear. Concern, yes. But 16:30:37 17 concern for his well-being, not concern for her in reference 16:30:37 18 to him. I never heard that." 16:30:37 19 MR. FITZGERALD: Are we done? 16:30:41 20 MR. GORMAN: Yes. 16:30:41 21 MR. FITZGERALD: Thanks very much, Mr. Gorman. 16:30:59 22 MR. VICKERY: Your Honor, I think we can knock off 16:31:02 23 half of the final video deposition, so it will be Dr. Hudson. 16:33:30 24 (Videotape deposition of Ian Hudson played.) 25 MR. GORMAN: There's an answer we need to read on 565 16:36:36 1 page 9, beginning at line 10. 16:36:38 2 The answer Dr. Hudson gives is: "My department is 16:36:41 3 responsible for the collection of adverse events that come 16:36:43 4 in, the serious adverse events from clinical trials and the 16:36:47 5 spontaneous reports and literature reports that come in on 16:36:50 6 Paxil; preparing analyses, whether they be routine periodic 16:36:56 7 safety update reports, U.S. periodics or whether they be 16:37:00 8 specific analyses on various topics on paroxetine. 16:37:04 9 "And so I've had involvement from supervisory and in 16:37:08 10 some cases direct involvement in various topics, safety 16:37:12 11 topics related to Paxil." 16:37:15 12 Now we need to do something with the video. 16:38:10 13 (Videotape deposition of Ian Hudson played.) 16:44:23 14 MR. GORMAN: Okay, Your Honor, this is another place 16:44:26 15 by agreement we have to read an answer. 16:44:29 16 The answer to this question by Dr. Hudson is: "In 16:44:33 17 terms of receipt of adverse events, we will receive reports 16:44:35 18 from many sources, including spontaneous reports phoned 16:44:41 19 through to the company or mentioned to sales reps or to other 16:44:46 20 people employed by the company, serious adverse events from 16:44:51 21 clinical trials, reports in the literature and reports from 16:44:54 22 regulatory sources. 16:44:56 23 "They will all be sent through the clinical safety 16:45:00 24 function. These reports will be reviewed by the clinical 16:45:03 25 safety function, will be entered onto a database and will be 566 16:45:08 1 assessed by both scientists and physicians involved in the 16:45:11 2 receipt of these cases. 16:45:15 3 "They will then -- a decision will be made in terms 16:45:17 4 of whether the report meets the requirements for expedited 16:45:21 5 reporting and if it does, it will be reported accordingly to 16:45:26 6 the regulatory authorities." 16:45:32 7 Now we have to try to guess on the tape again, Judge. 16:46:14 8 (Videotape deposition of Ian Hudson played.) 16:59:02 9 THE COURT: Mr. Vickery, is this a good time to 16:59:05 10 break? 16:59:06 11 MR. VICKERY: Judge, there's about three more 16:59:07 12 questions that put all of this in context, and I'll alert 16:59:11 13 you. 16:59:12 14 THE COURT: That's fine. 16:59:16 15 (Videotape deposition of Ian Hudson played.) 17:01:06 16 MR. VICKERY: That puts it in context. 17:01:08 17 THE COURT: Thank you very much. 17:01:09 18 Very well. We'll adjourn for the evening and resume 17:01:15 19 tomorrow at 9:00. And I would remind the jury of the usual 17:01:19 20 admonition. 17:01:20 21 (Trial proceedings recessed 17:01:23 22 5:00 p.m., May 23, 2001.) 23 24 25 567 1 C E R T I F I C A T E 2 3 I, JANET DEW-HARRIS, a Registered Professional 4 Reporter, and Federal Certified Realtime Reporter, do hereby 5 certify that I reported by machine shorthand the trial 6 proceedings, Volume III, contained herein, and that the 7 foregoing 199 pages constitute a full, true and correct 8 transcript. 9 Dated this 26th day of July, 2001. 10 11 12 JANET DEW-HARRIS Registered Professional Reporter 13 Federal Certified Realtime Reporter 14 15 16 17 18 19 20 21 22 23 24 25