1234 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 30, 2001 Volume VII 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 1235 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 DEFENDANT'S PAGE 21 KENNETH TARDIFF, M.D. Direct - Mr. Preuss 1238 22 Cross - Mr. Fitzgerald 1266 23 STEVEN ROZIER Direct - Mr. Gorman 1280 24 Cross - Mr. Fitzgerald 1340 25 1236 1 INDEX TO WITNESSES CONTINUED 2 DEFENDANT'S PAGE KIRTIKUMAR PATEL, M.D. 3 Direct - Mr. Preuss 1345 Cross - Mr. Vickery 1365 4 Redirect - Mr. Preuss 1379 5 KEVIN NELSON Direct - Mr. Gorman 1380 6 Cross - Mr. Fitzgerald 1393 Redirect - Mr. Gorman 1398 7 Recross - Mr. Fitzgerald 1399 8 VICKIE HAYNES Direct - Mr. Gorman 1401 9 Cross - Mr. Vickery 1407 10 RONALD WAGNER Deposition of Ronald Wagner Read 1425 11 MARK SUHANY, M.D. 12 Deposition of Mark Suhany, M.D. Read 1455 13 PLAINTIFFS' PEGGY DEANS 14 Direct - Mr. Vickery 1412 Cross - Mr. Gorman 1422 15 INDEX TO EXHIBITS 16 17 DEFENDANT'S RECEIVED 18 SB-KK 1266 19 20 21 22 23 24 25 1237 09:05:25 1 P R O C E E D I N G S 09:05:25 2 (Trial proceedings reconvened 09:05:25 3 9:00 a.m., May 30, 2001.) 09:05:25 4 THE COURT: Good morning, everybody. 09:05:25 5 I just want to give you a little information. The 09:05:25 6 chief deputy clerk of court advises me that about 10:00 this 09:05:25 7 morning a group of students from a local high school, East 09:05:25 8 High School, will come to visit us, approximately eight 09:05:25 9 students from a government law class. They're going to drop 09:05:25 10 in and listen for a little bit for whatever it is worth to 09:05:25 11 them, and then there will be another group, I believe from 09:05:25 12 the same class, this afternoon, about ten of them. I want to 09:05:25 13 let you know if you see people filing in here, that's who 09:05:25 14 they are. 09:05:25 15 Very good. Defendant ready to proceed? 09:05:25 16 MR. PREUSS: Yes, Your Honor. The defendant would 09:05:25 17 like to call Kenneth Tardiff at this time. 09:05:25 18 (Witness sworn.) 09:05:42 19 THE CLERK: I need you to state your name and spell 09:05:43 20 it for the record, please. 09:05:46 21 THE WITNESS: It is Kenneth Joseph Tardiff, 09:05:48 22 T A R D I F F. 23 24 25 1238 1 KENNETH TARDIFF, M.D. 2 called as a witness on behalf of the Defendant, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 09:05:51 5 Q. (BY MR. PREUSS) Good morning, Doctor. 09:05:55 6 A. Morning. 09:05:55 7 Q. How are you today? 09:05:56 8 A. Good. 09:05:57 9 Q. Where are you from, sir? 09:05:59 10 A. I was born and raised in New Orleans, went to Tulane 09:06:03 11 Medical School and went to the Northeast. I'm currently 09:06:05 12 living in New York City. 09:06:07 13 Q. Are you a physician, sir? 09:06:08 14 A. Yes, I am. 09:06:09 15 Q. And licensed to practice medicine? 09:06:10 16 A. Yes, I am. 09:06:11 17 Q. In what state, sir? 09:06:12 18 A. In New York, Louisiana, California and Canada. 09:06:17 19 Q. Could you please give us your educational background 09:06:20 20 beginning with college, sir. 09:06:22 21 A. I attended the University of New Orleans as an 09:06:25 22 undergraduate. I then went to Tulane Medical School in New 09:06:31 23 Orleans and where I obtained my M.D. degree. 09:06:32 24 I then went to New York City for an internship with 25 Saint Vincent's. 1239 09:06:35 1 I then went to Boston for my psychiatric residency at 09:06:37 2 the Massachusetts General Hospital. 09:06:39 3 At the same time I was doing my residency I went to 09:06:43 4 the Harvard School of Public Health and obtained a Master's 09:06:47 5 of Public Health degree. 09:06:49 6 Q. Your specialty in medicine is what, sir? 09:06:51 7 A. My specialty is the evaluation and management of violence 09:06:55 8 and suicide. 09:06:57 9 Q. You are a psychiatrist? 09:06:58 10 A. Yes, I am. 09:06:59 11 Q. And are you board certified in psychiatry, sir? 09:07:02 12 A. Board certified in 1976. 09:07:05 13 Q. You indicated that you have a subspecialty within the area 09:07:10 14 of psychiatry? 09:07:11 15 A. Yes, it is violence and suicide as well as murder/suicide. 09:07:16 16 Q. How long have you been working in that area, sir? 09:07:19 17 A. Too long I like to admit. It has been over 25 years. 09:07:22 18 Q. And how long have you focused on murder/suicide in 09:07:26 19 particular? 09:07:27 20 A. For about the past ten years I've been studying 09:07:31 21 murder/suicide, and it has resulted in one publication which 09:07:38 22 we will probably discuss in detail published in 1992. 09:07:42 23 Q. What made you choose the subspecialty of murder/suicide? 09:07:46 24 A. Well, I started off with violence, and when I was a 09:07:50 25 resident I became very interested in violence because, as you 1240 09:07:55 1 know, in the United States prior to the late '60s and early 09:07:59 2 '70s, violence wasn't as prominent as it became in that time, 09:08:03 3 and certainly homicide as well. 09:08:05 4 So as a psychiatric resident I was interested in how 09:08:09 5 one person could kill someone else, and so I began to study 09:08:12 6 it as a resident. My first study was a survey of 09:08:16 7 psychiatrists in Boston in terms of how they treated violent 09:08:20 8 patients. That's how I got interested in it, and I've been 09:08:23 9 interested ever since. 09:08:24 10 Q. And that's evolved into even more of a subspecialty into 09:08:29 11 murder/suicide? 09:08:32 12 A. Yes, it has. 09:08:32 13 Q. Are there other specialists such as yourself that focus 09:08:36 14 their work on murder/suicide? 09:08:40 15 A. Well, there's actually a long history of research in 09:08:43 16 murder/suicide. Not very many people studying it. But it 09:08:49 17 was studied, for example, as long as 200 years ago in terms 09:08:52 18 of mothers killing infants. 09:08:55 19 And so there's a long history of study, but there 09:08:58 20 aren't a lot of researchers who actually study it. 09:09:02 21 Q. Where do you do your work, sir? 09:09:04 22 A. I'm at the Cornell Medical College in New York City and 09:09:09 23 also the New York Presbyterian Hospital which is affiliated 09:09:13 24 with Cornell. 09:09:14 25 Q. And what positions do you have in those two institutions, 1241 09:09:18 1 sir? 09:09:19 2 A. There I'm a professor of psychiatry and public health and 09:09:23 3 also an attending psychiatrist at the New York Presbyterian 09:09:27 4 Hospital. 09:09:28 5 Q. And do you have a clinical practice, sir? 09:09:30 6 A. Yes, I do. It is quite varied. I treat outpatients in 09:09:34 7 terms of medication and psychotherapy. I also for the past 09:09:40 8 four months have been treating five inpatients on the 09:09:45 9 inpatient service of the New York Presbyterian Hospital. 09:09:50 10 In addition I do consultations on the units, 09:09:52 11 particularly in terms of particularly violent or suicidal 09:09:55 12 patients and give them my opinions about treatment. 09:09:59 13 Q. You indicated you use both psychotherapy and medication as 09:10:02 14 treatment modalities; is that correct? 09:10:04 15 A. That's correct. 09:10:05 16 Q. Sometimes in combination? 09:10:06 17 A. Often in combination. 09:10:08 18 Q. And do you use SSRIs? 09:10:11 19 A. Yes. 09:10:11 20 Q. And Paxil in particular? 09:10:14 21 A. Definitely. 09:10:19 22 Q. As part of your clinical practice do you treat patients 09:10:22 23 that are depressed, sir? 09:10:24 24 A. Oh, yes, I think most of my patients are depressed. 09:10:27 25 Q. About how many patients have you seen that have presented 1242 09:10:30 1 to you with depression, sir, over the course of your career? 09:10:39 2 A. I would say probably hundreds, but it has probably crossed 09:10:44 3 the boundary into thousands, a thousand or so. 09:10:48 4 Q. Do you have teaching responsibilities? 09:10:49 5 A. Yes, I teach psychiatric residents, physicians training to 09:10:53 6 be psychiatrists. I also teach medical students at Cornell. 09:10:57 7 The medical students I teach are primarily in terms of 09:11:00 8 general psychiatry. The residents I hone down in terms of 09:11:03 9 the management and prediction of violence and suicide, so my 09:11:06 10 lectures are pretty specific in terms of residents on 09:11:08 11 violence and suicide. 09:11:10 12 Q. Okay. And do you also participate in academic research? 09:11:16 13 A. Oh, yes. As I said, I've been doing research on violence 09:11:31 14 and suicide primarily for over 25 years. 09:11:35 15 Q. And you're continuing in that as of today? 09:11:37 16 A. Yes, I've had a number of research projects. Some of them 09:11:40 17 have looked at actual patients who were violent and suicidal 09:11:45 18 in terms of their characteristics, attempts to predict who 09:11:50 19 will be violent or suicidal. 09:11:53 20 Other work has involved work with a medical examiner 09:11:55 21 in New York City where I've reviewed all homicides, suicides, 09:12:00 22 murder/suicides as well as drug overdoses and other 09:12:05 23 accidents. 09:12:05 24 Q. Where do you receive your funding for your research, sir? 09:12:08 25 A. My prime funding has been from the National Institute of 1243 09:12:11 1 Drug Abuse. I've also received funding from various 09:12:15 2 foundations within the department. 09:12:18 3 Q. Is the National Institute of Drug Abuse -- is that a 09:12:21 4 federal agency or organization? 09:12:23 5 A. It is a federal agency, a branch of the National Institute 09:12:28 6 of Health in Rockville, Maryland. 09:12:30 7 Q. Have you received any research from GlaxoSmithKline? 09:12:34 8 A. No. 09:12:34 9 Q. Or their predecessors, Glaxo and SmithKline? 09:12:39 10 A. No. 09:12:39 11 Q. Have you used your expertise in violent suicide and 09:12:43 12 murder/suicide in other ways besides your clinical practice, 09:12:48 13 teaching and research, sir? 09:12:49 14 A. I've served as a consultant on primarily violence, the 09:12:53 15 management of violence at numerous hospitals within the 09:12:57 16 United States and in Canada as well. 09:13:00 17 Q. Have you done any in the state of Wyoming, sir? 09:13:03 18 A. It is interesting. Yeah, two years ago I did. The State 09:13:06 19 of Wyoming asked me to evaluate the procedures and policies 09:13:09 20 at the Wyoming State Hospital in Evanston, and I was happy to 09:13:14 21 do so. I visited the hospital, interviewed staff, reviewed 09:13:18 22 their policies and then formed the opinion that the care -- 09:13:24 23 MR. FITZGERALD: Excuse me. Pardon me, Doctor. 09:13:26 24 This is not in the disclosure. 09:13:30 25 MR. PREUSS: It is really by way of background, 1244 09:13:31 1 nothing else, Your Honor. 09:13:33 2 MR. FITZGERALD: Except that he's forming an opinion 09:13:36 3 and we have no idea what it is. It is news to me. I have no 09:13:40 4 way to deal with it. 09:13:41 5 THE COURT: He's forming an opinion? I thought it 09:13:43 6 was just his experience. 09:13:44 7 MR. PREUSS: It is his experience, consulting around. 09:13:46 8 I can assure you whatever opinion does not bear on this 09:13:50 9 particular case. 09:13:51 10 THE COURT: We're not looking for opinions. You're 09:13:53 11 setting forth his qualifications, experience and background. 09:13:58 12 That's -- 09:13:59 13 MR. PREUSS: That's what I am doing, Your Honor. 09:14:00 14 THE COURT: That's acceptable. Don't elicit any 09:14:03 15 opinions about it. Okay, all right. 09:14:06 16 A. This is several years ago and so I told them what I 09:14:10 17 thought, that the care was excellent, it was well funded. 09:14:16 18 And then I met several months later here in Cheyenne 09:14:21 19 with the governmental officials, staff persons as well as 09:14:24 20 advocates for the mentally ill and we discussed that, and the 09:14:28 21 meeting was quite satisfactory. 09:14:31 22 Q. (BY MR. PREUSS) Have you published in the area of violent 09:14:33 23 suicide or murder/suicide, sir? 09:14:37 24 A. Yes, I have. 09:14:38 25 Q. About how many articles have you published? 1245 09:14:41 1 A. In the peer-reviewed literature, roughly over a hundred, 09:14:45 2 many of them about violence and suicide. 09:14:48 3 Q. And have you -- I'm sorry? 09:14:50 4 A. I'm sorry. And then in books and chapters, about another 09:14:57 5 60 or so. 09:14:57 6 Q. And have you served as a reviewer for journals in 09:14:58 7 evaluating articles submitted for publication, sir? 09:15:02 8 A. Yes. These are called peer-reviewed journals because the 09:15:06 9 journal article that's submitted is sent to experts in the 09:15:09 10 field. The experts then give an opinion as to whether the 09:15:12 11 article should be published or not. And I serve on a number 09:15:15 12 of journals such as that. 09:15:18 13 Examples: Journal of the American Medical 09:15:22 14 Association, Archives of General Psychiatry, American Journal 09:15:25 15 of Psychiatry; about 15 or so journals. 09:15:27 16 Q. Are you involved in any professional associations, sir? 09:15:30 17 A. My prime involvement has been with the American 09:15:34 18 Psychiatric Association, and there I've worked on various 09:15:37 19 committees in terms of primarily developing guidelines for 09:15:41 20 the treatment of violent patients. 09:15:47 21 Q. Have you ever consulted for the NIH, or the National 09:15:50 22 Institutes of Health? 09:15:53 23 A. Yes. Again, several years ago there was concern at the 09:15:56 24 National Institute of Health that not enough research was 09:16:07 25 being done on violence in the United States. 1246 09:16:10 1 And a panel was convened and I was the expert 09:16:13 2 psychiatrist on the panel. There were other experts, law, 09:16:18 3 sociology, et cetera. We met several times and reviewed the 09:16:21 4 portfolio of the National Institutes of Health on violence 09:16:24 5 and made certain recommendations. 09:16:26 6 Q. Now, Doctor, can you tell us based on your background and 09:16:29 7 experience how often murder/suicide occurs in our society? 09:16:35 8 A. As I said, Dr. Peter Marzuk and I published the paper in 09:16:40 9 1992 in the Journal of the American Medical Association and 09:16:44 10 we reviewed articles, I think, roughly from the mid-'60s to 09:16:50 11 1990 or whatever. 09:16:51 12 These articles described rates of murder/suicide in 09:16:59 13 the world, in the United States. It is very difficult to 09:17:02 14 come to an exact percentage rate, but we thought that 09:17:06 15 generally within the United States and within the world the 09:17:11 16 rate -- the range is from 2 to 6 murder/suicides per million 09:17:18 17 population per year. 09:17:22 18 Q. Now, Doctor, as a reference point, the article that you're 09:17:27 19 referencing is a review in "The Epidemiology" -- the title of 09:17:31 20 which is "The Epidemiology of Murder/Suicide"? 09:17:34 21 A. That's correct. 09:17:35 22 Q. Which appeared in JAMA, the Journal of the American 09:17:40 23 Medical Association? 09:17:40 24 A. That's correct. 09:17:41 25 MR. PREUSS: For the record, Your Honor, SB-FF-151. 1247 09:17:48 1 A. If I might just follow up, given the rate of 09:17:52 2 murder/suicide, let's say, in the United States is from 2 to 09:17:56 3 6, if you take the middle, around 4 per million and the 09:18:01 4 population in the United States is 285 million, you can see 09:18:06 5 that we would expect each year over a thousand 09:18:09 6 murder/suicides in the United States. 09:18:12 7 Q. (BY MR. PREUSS) Is a thousand, then, annually in the 09:18:16 8 United States -- is that what you would call a background 09:18:18 9 rate? 09:18:19 10 A. Yes. 09:18:21 11 Q. And how would you define background rate, then? 09:18:26 12 A. The endemic or expected background rate -- rate expected 09:18:37 13 absent of something else causing or raising the rate for a 09:18:40 14 particular year, for example. 09:18:41 15 Q. Based on your research has the rate of murder/suicide 09:18:45 16 changed over time, sir? 09:18:46 17 A. No, surprisingly the articles that we've reviewed, it has 09:18:50 18 remained fairly constant throughout the world. There's some 09:18:55 19 variation, but certainly compared to homicide which varies 09:19:00 20 greatly, murder/suicide is a fairly constant phenomenon. 09:19:05 21 Q. Running roughly about 4, give or take, per million per 09:19:09 22 year? 09:19:09 23 A. Yes, yes. And the surprising thing is not only in terms 09:19:12 24 of time, but by and large across countries the rate of 09:19:17 25 murder/suicide is roughly the same. Again, there's some 1248 09:19:20 1 variations here and there, but as you know, homicide varies 09:19:24 2 enormously across countries with the United States having a 09:19:27 3 very high rate and other countries having very low rates. 09:19:31 4 Q. Now, have you yourself looked at the rate of 09:19:33 5 murder/suicide in any population group, sir? 09:19:38 6 A. Yes, I've done a study with a medical examiner in New York 09:19:42 7 City looking at all murder/suicides from 1990 to 1997. 09:19:49 8 Again, these are all murder/suicides in New York City which 09:19:54 9 means all five boroughs of New York City with a population of 09:19:58 10 8 million. 09:19:59 11 Q. And what does the medical examiner do in connection with 09:20:03 12 these murder/suicides? 09:20:05 13 A. Okay. Just so you have a little background in case you 09:20:09 14 don't know what a medical examiner does, a medical examiner 09:20:12 15 is responsible for examining all cases of homicide, suicide, 09:20:16 16 drug overdoses, accidents or a death which was not where the 09:20:22 17 patient was attended by a physician. 09:20:29 18 The responsibility of a medical examiner is to 09:20:29 19 evaluate the case and determine why the death occurred, i.e., 09:20:32 20 was it a homicide, suicide, drug overdose. Oftentimes it is 09:20:35 21 not quite as clear as it might seem. 09:20:38 22 So in doing this the medical examiner sends one of 09:20:41 23 his staff, usually a pathologist, to the death scene. The 09:20:45 24 pathologist evaluates the scene in terms of what is at the 09:20:51 25 scene, may interview people who witnessed that or knew the 1249 09:20:57 1 victim. 09:20:58 2 The medical examiner will also do an autopsy and also 09:21:02 3 will collect specimens, blood, urine, et cetera, for 09:21:08 4 toxicology. These specimens are tested for drugs of abuse 09:21:16 5 and drugs of treatment, including antidepressants. 09:21:19 6 So, therefore, we know in a murder/suicide what the 09:21:22 7 victim was taking as well as what the perpetrator was taking 09:21:28 8 at the time of the murder/suicide. 09:21:33 9 Q. As part of this examination you indicated that a 09:21:35 10 specimen -- blood specimens were taken and urine specimens? 09:21:40 11 A. Urine, bile, a number of different specimens. 09:21:44 12 Q. And they are subjected to toxicologic screening? 09:21:47 13 A. Screening and analysis. So the medical examiner knows 09:21:51 14 which drugs were present at the time the event occurred. And 09:21:55 15 this is really particularly true for murder/suicide because 09:22:00 16 in murder/suicide, the suicide occurs usually quickly after 09:22:06 17 the homicide, usually within an hour or so. 09:23:17 18 Q. Is this toxicological screening sensitive to SSRIs? 09:23:17 19 A. Yes. 09:23:17 20 Q. And Paxil in particular? 09:23:17 21 A. Yes. 09:23:17 22 Q. So if a person committed a murder/suicide, based on the 09:23:17 23 toxicological screen you would be able to ascertain whether 09:23:17 24 or not Paxil was in their system? 09:23:17 25 A. Yes. 1250 09:23:17 1 MR. FITZGERALD: Excuse me. I didn't get my 09:23:17 2 objection in before he answered but this is not in the 09:23:17 3 disclosure. 09:23:17 4 THE COURT: Objection sustained. The jury is 09:23:17 5 instructed to disregard the question and the answer. 09:23:17 6 MR. FITZGERALD: Mr. Preuss is free to correct me if 09:23:17 7 it is in there. 09:23:17 8 THE COURT: I would change my ruling if it is in 09:23:17 9 there. 09:23:17 10 MR. PREUSS: It is. Paragraph 9 of page 3 of the 09:23:17 11 disclosure, talks about his work with murder/suicides in New 09:23:17 12 York City from 1990 to 1997. 09:23:17 13 MR. FITZGERALD: But it does not include any 09:23:17 14 reference to an opinion that this sort of event occurs within 09:23:17 15 a certain time frame or any foundation for that opinion or 09:23:17 16 anything. It is just not there, Your Honor. 09:23:17 17 MR. PREUSS: Your Honor, I think it is clearly 09:23:23 18 covered by our disclosure. 09:23:23 19 THE COURT: Describe to me again where you're citing 09:23:23 20 from, Mr. Preuss. 09:23:24 21 MR. FITZGERALD: Would the Court care to see the 09:23:26 22 cite, Your Honor? 09:23:27 23 THE COURT: Well, I have it. I just -- did you say 09:23:29 24 paragraph 9, page 3? 09:23:31 25 MR. FITZGERALD: Yes, he did. 1251 09:23:33 1 MR. PREUSS: Right. And page 10 and number 11. 09:24:03 2 THE COURT: Where is the reference to time? 09:24:06 3 MR. PREUSS: You mean how soon after -- I don't think 09:24:09 4 that's in there, Your Honor. 09:24:10 5 THE COURT: Objection sustained. 09:24:31 6 Q. (BY MR. PREUSS) Doctor, you indicated you have reviewed 09:24:32 7 the toxicological data from all the murder/suicides in New 09:24:38 8 York City for this period of time from 1990 to 1997, sir? 09:24:41 9 A. That's correct. 09:24:52 10 Q. Was Paxil available during that period of time? 09:24:54 11 A. Yes, Paxil was approved in December of 1992, so it was 09:24:58 12 available in 1993. 09:24:59 13 Q. And how many murder/suicides have you reviewed during this 09:25:04 14 nine -- seven-year period -- excuse me -- seven- or 09:25:08 15 eight-year period? 09:25:10 16 A. Eight year. All of them, which is 129. 09:25:18 17 Q. In any of those was any individual taking an 09:25:20 18 antidepressant, sir? 09:25:22 19 A. Yes, one individual was taking an antidepressant, one 09:25:26 20 murder. 09:25:27 21 Q. What was that antidepressant? 09:25:28 22 A. It was a tricyclic antidepressant. 09:25:31 23 Q. And were any other foreign substances found in the 09:25:35 24 toxicological screening? 09:25:37 25 A. The individual, 46-year-old woman, was also taking heroin, 1252 09:25:42 1 marijuana and methadone. She killed her 27-year-old 09:25:50 2 daughter, then herself. 09:25:51 3 Q. Had the number of murder/suicides in your New York study 09:25:56 4 stayed consistent during this eight-year period? 09:26:00 5 A. From 1990 to 1997, roughly 16 per year. There was some, 09:26:08 6 you know, slight increase, slight decrease in one or two 09:26:12 7 years, but by and large, 16 per year. I think one year it 09:26:23 8 fell to 7 for some reason, but roughly 16 to 18. 09:26:28 9 Q. Was the number of 129 what you would expect based on the 09:26:31 10 background rate, sir? 09:26:32 11 A. Yes. If you take the lower rate from 2 to 6, if you take 09:26:41 12 2 per million per year, the population of New York is 8 09:26:45 13 million, therefore you would expect roughly 16 per year. If 09:26:48 14 you look at eight years and multiply that, you get 128. So 09:26:58 15 it is roughly in the ballpark of what you would expect given 09:26:58 16 the U.S. and world rate of murder/suicide per year. 09:27:02 17 Q. And any of those individuals involved in those 129 cases 09:27:06 18 been taking Paxil, sir? 09:27:08 19 A. No. 09:27:08 20 Q. Have you had the occasion to search the published 09:27:11 21 literature for any reference to Paxil being associated with 09:27:14 22 murder/suicide in any way? 09:27:16 23 A. Yes, I have. 09:27:17 24 Q. And what have you found, sir? 09:27:18 25 A. I have not found a peer-reviewed article discussing Paxil 1253 09:27:24 1 and murder/suicide. 09:27:27 2 Q. All right. Have you had the occasion to review the 09:27:29 3 aggression paper prepared by SmithKline for year 2000? 09:27:35 4 A. That's prepared by Nicola Chang? 09:27:39 5 Q. Yes. 09:27:39 6 A. Yes, I have reviewed that. 09:27:41 7 Q. And what does that indicate? 09:27:42 8 A. It indicates that there were -- and again, I don't 09:27:49 9 remember exactly when it was done, but I think it was started 09:27:52 10 around 1990 to 2000 basically, and these were all reports 09:27:58 11 submitted, I guess, to SmithKline concerning -- what I was 09:28:03 12 particularly interested in was murder/suicide. 09:28:06 13 And during that time period there were seven 09:28:09 14 murder/suicides where the perpetrator of the murder/suicide 09:28:14 15 was reportedly taking Paxil. 09:28:16 16 Q. And is that consistent with the background rate, sir? 09:28:22 17 A. It is much lower. I mean, if you consider this is the 09:28:25 18 whole world, you have considered that the rate of 09:28:27 19 murder/suicide in the world is from 2 to 6 per million, and 09:28:33 20 if you assume that millions of people have been exposed to 09:28:36 21 Paxil, it is unclear how many, whether it was 25 or 80 09:28:40 22 million, 7 is certainly much less than I would expect. 09:28:46 23 Q. And this is worldwide? 09:28:48 24 A. This is all world reports of Paxil. 09:28:56 25 Q. Now, Doctor, I would like to turn your attention to the 1254 09:28:58 1 review article that we've discussed a couple times. Can you 09:29:05 2 tell us, generally speaking, the purpose and the scope of 09:29:10 3 this article, sir? 09:29:13 4 A. This paper was prepared by Dr. Peter Marzuk, myself and 09:29:18 5 the medical examiner himself, Dr. Charles Hirsch. We 09:29:27 6 reviewed the literature using Medline, a computer search, all 09:29:30 7 papers related to murder/suicide from 1996 on. 09:29:35 8 Now, in doing that, of course, we're then able to 09:29:39 9 find references in these papers that went back over time, as 09:29:42 10 I said, back to 1800. So that we reviewed all of these 09:29:47 11 papers and attempted in this paper to, number one, pull 09:29:51 12 together all of the statistics in terms of, you know, age, 09:29:55 13 sex, race of the victims and the perpetrators, and then also 09:30:02 14 from these reviews to develop classification of 09:30:08 15 murder/suicide. 09:30:10 16 This had never been done before. What had been done 09:30:13 17 in the previous papers is to present parts of murder/suicide. 09:30:19 18 So, for example, one paper might discuss mothers killing 09:30:22 19 infants, and then killing themselves. Others might discuss 09:30:28 20 men killing family members and then themselves or jealous 09:30:33 21 spouses killing the spouse and then themselves. 09:30:36 22 So we did it -- we pulled together all of these and 09:30:39 23 came up with four basic types where family members were 09:30:43 24 killed. Now, these are strictly descriptive. It does not 09:30:50 25 imply causation. This is merely to develop the typology so 1255 09:31:00 1 that further research can be done following the publication 09:31:02 2 of our paper. There were, I think, three other papers again 09:31:07 3 looking at the literature before and after 1990, and they 09:31:10 4 basically confirm and use our typology. 09:31:14 5 So the typology we've developed is one that's fairly 09:31:18 6 accepted and standard at this point in time. 09:31:20 7 Q. Would you be kind enough to go to the easel there and tell 09:31:26 8 us what four types you found based on your review of the 09:31:32 9 literature. 09:31:33 10 And maybe you could turn that? 09:31:35 11 MR. PREUSS: I would like to mark that as next in 09:31:37 12 order, Your Honor, which I believe is KK. 09:31:40 13 THE WITNESS: Tell me if you can't see. And excuse 09:31:43 14 my handwriting, too. 09:32:16 15 A. The first is spouse jealousy. 09:32:24 16 Q. (BY MR. PREUSS) Can you write a little larger? 09:32:25 17 I interrupted you. What was the first one? 09:32:28 18 A. Spouse jealousy. This involves a perpetrator, a man, 09:32:35 19 usually age 18 to 60. He suspects or knows about infidelity 09:32:56 20 of his wife or lover so that he suspects it or he actually 09:32:59 21 knows that the wife has been unfaithful to him. 09:33:03 22 The victim is the wife or lover who has either been 09:33:18 23 unfaithful, has left him for another man. He then kills 09:33:18 24 himself -- kills his wife and then kills himself, so a 09:33:23 25 murder/suicide. 1256 09:33:31 1 Q. Could you give us a sample of that that appears in the 09:33:33 2 literature? 09:33:35 3 A. What I've done based on the literature I reviewed, I 09:33:38 4 pulled out cases to give you a flavor. I think it is very 09:33:42 5 helpful. 09:33:43 6 The first one was done by Dr. Rosenburg. The study 09:33:48 7 was done in Albuquerque, New Mexico from 1978 to 1987. And 09:33:55 8 there was one case described which clearly illustrates this. 09:33:58 9 It was a 55-year-old man, married for 30 years. For 09:34:02 10 the three months prior to the murder/suicide he was 09:34:06 11 depressed. He thought that his wife was being unfaithful 09:34:09 12 and, in fact, accused her of infidelity. She denied this. 09:34:16 13 He had been unable to work. There had been marital 09:34:20 14 problems for years. In fact, they had been separated twice. 09:34:26 15 She insisted that he see a psychiatrist and he didn't want to 09:34:30 16 see a psychiatrist. 09:34:31 17 In an argument, she one night threatened to leave him 09:34:35 18 because of this. He shot her and then shot himself. A clear 09:34:39 19 example -- and this is seen over and over in terms of this 09:34:42 20 particular type. 09:34:43 21 Q. Okay. And what is the second type that emerges from your 09:34:46 22 review of the literature, sir? 09:34:53 23 A. The next one is also a spouse and this is declining 09:35:09 24 health. In this case the perpetrator is usually, again, a 09:35:13 25 man, although there are some cases where women have killed 1257 09:35:21 1 their husbands. The age is usually more elderly, elderly 09:35:33 2 perpetrator. The victim is usually the wife but there are 09:35:43 3 some cases where the wife may kill the husband and the motive 09:35:51 4 usually seen here is declining health in one or both spouses, 09:36:00 5 elderly people, declining health, one spouse kills the other 09:36:05 6 and then kills him or herself. 09:36:07 7 Q. Can you give us an example of that? 09:36:09 8 A. Yeah. This example comes from a study done by Dr. Allen 09:36:15 9 in Los Angeles. This ranged from -- the study was 1970 to 09:36:20 10 1979. In this case a 79-year-old man killed a 78-year-old 09:36:25 11 wife. The wife -- and then killed himself. The wife had 09:36:34 12 multiple sclerosis for 30 years and was dependent on the 09:36:38 13 husband in terms of caring for her. 09:36:40 14 Unfortunately the man, the husband, was diagnosed 09:36:43 15 with cancer which appeared to be terminal. He decided to -- 09:36:47 16 it was like a mercy killing to kill both his wife and then 09:36:51 17 himself. And again, this is a classic example in terms of 09:36:54 18 spouse declining health murder/suicide. 09:36:58 19 Q. What's the third category or type, sir, that you found? 09:37:01 20 A. The third type is an infant/child murder/suicide. Here 09:37:24 21 the perpetrator is a parent. Most murder/suicides where a 09:37:30 22 child is killed involves a parent. Many of them involve a 09:37:34 23 parent being killed. Child homicides, per se, don't -- may 09:37:42 24 often involve parents, but also strangers and then 09:37:46 25 murder/suicide doesn't occur. 1258 09:37:49 1 The murder/suicide here involves a parent, could be 09:37:53 2 the father, could be the mother. It may vary as to the age 09:37:57 3 of the individual as to who kills the individual. For 09:38:00 4 example, mothers are more likely to kill infants, fathers 09:38:03 5 more likely older children. 09:38:05 6 The age varies of the perpetrator, although the 09:38:11 7 age -- in the age of the child/infant varies all the way from 09:38:17 8 the newborn all the way up to 16 years of age. The victim is 09:38:32 9 an infant and/or a child. 09:38:35 10 The classic finding here is depression of the 09:38:45 11 perpetrator, and often -- not often, but many times it is 09:38:49 12 also with psychosis. 09:38:58 13 Q. What do you mean by psychosis? 09:39:00 14 A. Psychosis is a false belief, believing something that is 09:39:03 15 almost definitely not true. A person who is delusional, for 09:39:11 16 example, psychotic, that is, they believe, for example, that 09:39:15 17 they're responsible for some overwhelming thing, like they 09:39:20 18 poison their infants or they're responsible for things that 09:39:23 19 are obviously not true, or they may be paranoid thinking that 09:39:28 20 people are persecuting them, when in fact it is definitely 09:39:30 21 not true. 09:39:32 22 So that's called a delusion. Some of these people 09:39:35 23 also have hallucinations, voices talking to them telling them 09:39:38 24 to do things. So either hallucinations or delusion is 09:39:42 25 psychosis. 1259 09:39:43 1 Again, psychosis is often present, but depression is 09:39:52 2 definitely there. And then this is the motivating thing in 09:39:52 3 terms of killing the infant or the child. 09:40:01 4 And this goes back, as I said, 200 years, described 09:40:04 5 by a physician named Pinal in France in 18 something. So 09:40:08 6 this really goes back. And he coined a term called 09:40:25 7 altruistic homicide. And it has been used by researchers 09:40:31 8 ever since then. And it takes a little explaining because 09:40:38 9 altruism, as you know, is doing something good for somebody 09:40:42 10 at your own expense. 09:40:43 11 And his concept of this, having evaluated these 09:40:47 12 cases, is that the depressed psychotic mother or father 09:40:53 13 really believed that they were doing the child a favor by 09:40:57 14 killing them to prevent them from being exposed to whatever 09:41:03 15 stresses were going on; for example, poverty, et cetera, 09:41:07 16 and/or the suicide of the parent. 09:41:09 17 Now, clearly this is psychotic in terms of this type 09:41:13 18 belief, but the individual, when depressed with psychotic 09:41:17 19 thinking, actually believes that they're doing something to 09:41:20 20 help the individual. 09:41:26 21 In terms of names, in terms of delusional altruism 09:41:30 22 and so on, it has really come down through the literature 09:41:34 23 through the centuries. 09:41:36 24 Q. Can you give us an example of the third kind? 09:41:39 25 A. To show you how universal this is I chose an example from 1260 09:41:42 1 Japan in 1956. This was a 34-year-old housewife who drowned 09:41:46 2 her 4-year-old daughter and then jumped in a river attempting 09:41:52 3 to drown herself. She was accidentally found by her brother 09:41:57 4 who saved her and she was arrested by the police. 09:42:03 5 As it turns out, two weeks after delivery she became 09:42:07 6 depressed and increasingly became depressed and was very 09:42:12 7 concerned about her baby. She would go around saying 09:42:15 8 something like, "My poor baby. My poor baby." And her 09:42:21 9 husband was very concerned about finances, very hard working 09:42:25 10 and basically just didn't take her for treatment. 09:42:28 11 Unfortunately one morning, as I said, she drowned her 09:42:32 12 baby and then tried to drown herself. When the police 09:42:38 13 interviewed her, what we saw was this, the idea that she's 09:42:41 14 really trying to save her baby from all of these horrible 09:42:45 15 things in the world. 09:42:46 16 Q. And the fourth type or group that you found based on your 09:42:49 17 research, sir? 09:43:09 18 A. Family murder/suicide. Perpetrator, senior male of the 09:43:31 19 family, obviously usually the father. Depression, depressed, 09:43:34 20 person is depressed. Social stressors. 09:43:59 21 Q. You wrote down some social stressors? 09:44:02 22 A. Social stressors involve a number of different things -- 09:44:07 23 finances, job, marital difficulties, losses -- anything 09:44:12 24 that's impinging on the individual as well as the family. 09:44:23 25 The personality described for the perpetrator a number of 1261 09:44:28 1 different kind of things, but by and large controlling, 09:44:35 2 possessive, strong individual, used to being in control, 09:44:47 3 being the supporter of the family, somewhat rigid. 09:45:24 4 The thing we see in this type of murder/suicide is 09:45:28 5 the person, the man, kills the family and the family usually 09:45:31 6 involves a wife, children and other relatives that may be in 09:45:36 7 the house. 09:45:42 8 What we find in terms of -- it varies in terms of the 09:45:45 9 reason for this. It is, again, sort of like the infant/child 09:45:51 10 murder/suicide, this concept of altruism: "I'm going to 09:45:55 11 spare my family all of these things -- poverty and my 09:46:00 12 suicide -- and I'm going to kill them." 09:46:02 13 Again, this is a deluded sort of altruism. In 09:46:09 14 certain cases also this has been tied in with anger, 09:46:12 15 frustration, because what comes together is a strong person, 09:46:17 16 strong man who is now depressed facing numerous stressors 09:46:23 17 that seem hopeless in terms of the future. 09:46:27 18 And all of these things come together, he's not used 09:46:30 19 to this, and produces the homicide and then the suicide. 09:46:34 20 Q. Can you give us an example of that? 09:46:36 21 A. Yeah. There's a good example from Goldburg. This study 09:46:50 22 was done in 1975 in Australia. The person involved here was 09:46:57 23 actually younger than usual. He was a 31-year-old school 09:47:01 24 teacher in Australia, lived with his wife and three children. 09:47:05 25 The children were aged 5, 4 and 2 years of age. 1262 09:47:11 1 One morning a relative found his wife dead, killed 09:47:17 2 with an ax, and found him with his children shot to death. 09:47:26 3 He killed his children and then himself. 09:47:33 4 The neighbors described the family as an ideal 09:47:35 5 family, regular churchgoers. No history of violence in the 09:47:41 6 family. The man had seen a doctor a number of times for 09:47:43 7 depression. Tricyclic was prescribed for the depression. 09:47:52 8 I'm not sure how many times he saw him. There were a number 09:47:55 9 of bouts of depression. The last time he had been treated, 09:47:58 10 however, was one year prior to the murder/suicide. 09:48:01 11 So apparently what happened is, again, he had another 09:48:03 12 bout of depression, was not treated and then the tragedy 09:48:07 13 occurred. 09:48:11 14 Q. Now, on the last group, the family murder/suicide, sir, is 09:48:18 15 the perpetrator -- 09:48:21 16 A. Excuse me. It seems to get in the way here. 09:48:24 17 Q. The last group, on the family murder/suicide scenario, is 09:48:29 18 the perpetrator generally a male, did you say? 09:48:32 19 A. Yes. 09:48:34 20 Q. And any particular age? 09:48:39 21 A. It is usually a senior male. I mean, we generally think 09:48:42 22 that it is in the older -- depends what you mean by old, but 09:48:46 23 usually, you know, 50, 60, along that line, which is 09:48:50 24 important because there you have the declining sort of 09:48:54 25 functioning and lots of things happening. 1263 09:48:57 1 However, like the case I gave, it could be also a 09:48:59 2 younger person as well. 09:49:01 3 Q. And any income level generally in this group? 09:49:05 4 A. By and large I think -- I haven't studied that. The 09:49:09 5 subsequent articles have shown that generally that -- 09:49:13 6 murder/suicide in general but family murder/suicide, sort of 09:49:19 7 the middle income range, as opposed to the homicides where, 09:49:23 8 as you know, most of the homicides occur in people who are 09:49:27 9 impoverished, both victims and perpetrators. 09:49:31 10 Q. Is there a mental illness involved generally with the 09:49:34 11 perpetrator? 09:49:35 12 A. In which type? 09:49:36 13 Q. Number 4, the family murder/suicide. 09:49:39 14 A. Yes, it is usually depression, occasionally, but again we 09:49:44 15 can see depression with psychosis. But again, it is usually 09:49:48 16 linked with a depression, nothing like schizophrenia or 09:49:52 17 anything like that. 09:49:52 18 Q. Is there any gender trend in the victims? 09:49:56 19 A. The victims are almost uniformly women, spouses. However, 09:50:01 20 male children also can be killed. 09:50:08 21 Q. Do the literature show anything about the location of 09:50:11 22 where the murder/suicide occurs in this fourth group? 09:50:16 23 A. Primarily the bedroom and the living room, which makes 09:50:19 24 sense since that's probably where arguments would occur. 09:50:24 25 Q. In this fourth group is there usually history of domestic 1264 09:50:27 1 violence that precedes the murder/suicide? 09:50:31 2 A. No, there is no history of domestic violence, unlike the 09:50:34 3 first type where oftentimes there is a history of domestic 09:50:38 4 violence. 09:50:38 5 Q. And you indicated that there are other stressors that may 09:50:41 6 operate on this scenario, number 4? 09:50:44 7 A. Well, the stressors are usually social stressors, again -- 09:50:52 8 worried about money, job insecurity, marital difficulties. 09:50:56 9 Occasionally infidelity may come -- suspected infidelity may 09:51:03 10 come as a social stressor, deaths in the family, a number of 09:51:07 11 things that impact on the individual as well as the family. 09:51:11 12 Q. Okay. And taking all four of the types that you wrote 09:51:14 13 about in your 1992 article, is there one thread that ties 09:51:18 14 them together? 09:51:31 15 A. Not one thread. I think the threads are certainly mental 09:51:34 16 illness, oftentimes depression, and then also -- trying to 09:51:38 17 pick the right word -- some threat to the individual and/or 09:51:47 18 family; for example, wife leaving, infidelity, declining 09:51:52 19 health. Not as much with the infanticide, but certainly with 09:52:00 20 the family murder/suicide, certainly stressors on the 09:52:04 21 individual and family. So it is mental illness plus stress. 09:52:08 22 Q. Is depression often that mental illness? 09:52:12 23 A. Depression is usually the one. 09:52:13 24 Q. Is this '92 article the first time that these types have 09:52:17 25 been described in the literature? 1265 09:52:18 1 A. Well, what happened is other authors have described, as I 09:52:24 2 said earlier, parts of the phenomenon of murder/suicide. I 09:52:30 3 think we're the first to bring them all together in one 09:52:32 4 paper. 09:52:33 5 Q. Have you reviewed any material specific to Donald Schell, 09:52:40 6 sir? 09:52:41 7 A. Yes. 09:52:41 8 Q. Can you tell us generally what you've reviewed? 09:52:43 9 A. Generally I've reviewed his medical records, Mrs. -- Rita 09:52:47 10 Schell's medical records, depositions of doctors who cared 09:52:52 11 for the Schells, police reports, depositions of family 09:53:08 12 members of the Schells as well as family and friends of the 09:53:08 13 Schells. 09:53:09 14 Q. How about the autopsy? 09:53:11 15 A. Sorry, the autopsy report and toxicology report. 09:53:13 16 Q. Based on your review of these materials, does Donald 09:53:21 17 Schell's case fit into any one of these four categories? 09:53:21 18 A. Definitely. 09:53:21 19 Q. Which one? 09:53:22 20 A. The fourth category. 09:53:24 21 MR. PREUSS: Thank you, Doctor. 09:53:34 22 Your Honor, before Mr. Fitzgerald starts may I mark 09:53:36 23 it and ask that it be admitted at this time, Your Honor? 09:53:39 24 THE COURT: Yes, you may. 09:53:55 25 Any objection? 1266 09:53:55 1 MR. FITZGERALD: No, Your Honor. 09:53:56 2 THE COURT: I believe that's Plaintiffs' KK. 09:53:59 3 MR. PREUSS: Defendant's, Your Honor. 09:54:00 4 THE COURT: It may be received in evidence. 09:54:03 5 (Defendant Exhibit SB-KK received in evidence.) 6 CROSS-EXAMINATION 09:54:04 7 Q. (BY MR. FITZGERALD) Doctor, we've not met. My name is 09:54:53 8 Jim Fitzgerald and I represent the families. 09:54:57 9 A. Good morning. 09:54:59 10 Q. You reviewed the police report so you must have seen that 09:55:02 11 Bette Smith reported to the police that the Schells had no 09:55:09 12 financial problems, didn't you? 09:55:11 13 A. Yes. 09:55:20 14 Q. On the matter of finances, I do understand correctly that 09:55:24 15 you charge $3,000 a day for your work like you're doing here? 09:55:28 16 A. Anything over ten hours, yes. 09:55:30 17 Q. Okay. Well, you're going to be gone from your office all 09:55:34 18 day so you must be charging at least $3,000 for today, right? 09:55:38 19 A. Yes. 09:55:40 20 Q. Did you charge $3,000 for yesterday? 09:55:42 21 A. Yes. 09:55:43 22 Q. And you will be flying back this evening, so I presume you 09:55:48 23 won't be charging for tomorrow? 09:55:50 24 A. Whatever time I spend here I will charge. 09:55:55 25 Q. Well, let me make sure I'm clear. Whatever time you spend 1267 09:55:58 1 here, even if it is less than ten hours, you're still going 09:56:03 2 to charge the $3,000 for today, aren't you? 09:56:07 3 A. No, I charge -- if I'm at a place for ten hours or more I 09:56:14 4 charge $3,000. If I'm in a place for less than ten hours I 09:56:19 5 charge an hourly rate. Obviously I don't want to charge for 09:56:21 6 my sleeping and things like that. 09:56:24 7 Q. How about your time on the airplane? 09:56:25 8 A. Yes, I would charge for that. 09:56:27 9 Q. And you get flown here first class except for the 09:56:30 10 Denver/Cheyenne leg, I'm sure? 09:56:33 11 A. No, I was coach. 09:56:34 12 Q. When you went to Hawaii did you go first class? 09:56:37 13 A. No, coach. 09:56:38 14 Q. And when you were in Hawaii testifying in August of 1999, 09:56:41 15 you actually charged $12,000 for four days' worth of work, 09:56:47 16 right? 09:56:47 17 A. Yes, as far as I can remember it was four days. 09:56:55 18 Q. Now, you're not a member of the American Association of 09:57:00 19 Suicidology, are you? 09:57:03 20 A. No. 09:57:04 21 Q. Or of the International Association for Suicide 09:57:06 22 Prevention? 09:57:07 23 A. No. 09:57:08 24 Q. You're not a member of the American Academy of Forensic 09:57:11 25 Sciences, are you? 1268 09:57:13 1 A. No. 09:57:13 2 Q. You're not a member of the American Foundation for Suicide 09:57:15 3 Prevention, are you? 09:57:17 4 A. No. 09:57:18 5 Q. You're not a member of the Academy for Suicide Research, 09:57:21 6 are you? 09:57:21 7 A. No. 09:57:22 8 Q. Nor are you a member of the American Academy of Forensic 09:57:25 9 Examiners? 09:57:26 10 A. No. 09:57:39 11 Q. Doctor, would it be a correct statement that a standard 09:57:42 12 toxicology screen does not pick up Paxil or other SSRIs? 09:57:46 13 A. That's not true. 09:57:46 14 Q. The coroner has to test specifically for paroxetine, does 09:57:50 15 he not? 09:57:51 16 A. What is done is there are screens for acidic/basic drugs, 09:57:58 17 et cetera, and based on whether there's a positive result 09:58:02 18 there, the coroner would test for specific drugs. 09:58:05 19 Q. Let's talk about the Chang study that was mentioned. Is 09:58:08 20 it Dr. Chang or who within SmithKline? 09:58:12 21 A. I don't think she had a Ph.D. I think she was a 09:58:15 22 Master's-level person. 09:58:17 23 Q. This is what is mentioned in paragraph seven of your 09:58:19 24 report. And it talks about a summary of all reports received 09:58:25 25 by SmithKline Beecham, correct? 1269 09:58:26 1 A. That's correct. 09:58:27 2 Q. Okay. This is a summary of reports received by SmithKline 09:58:38 3 Beecham as of April 6th, 2000, a little over a year ago, of 09:58:41 4 aggressive behavior following paroxetine treatment, correct? 09:58:46 5 A. That's correct. 09:58:46 6 Q. That's what we're aiming in here on? 09:58:49 7 A. That's correct. 09:58:49 8 Q. And that Chang report within SmithKline Beecham referred 09:58:52 9 to seven reported cases of murder/suicide, correct? 09:58:57 10 A. That's correct. 09:58:58 11 Q. Okay. But there certainly could have been more that 09:59:01 12 weren't reported to SmithKline Beecham, even on Paxil; isn't 09:59:05 13 that true? 09:59:06 14 A. That's highly unlikely, because, as I said, murder/suicide 09:59:10 15 is a very publicized thing and I would predict that 100 09:59:14 16 percent would have been reported. It is not like diarrhea or 09:59:18 17 something, you know. 09:59:19 18 Q. But somebody has to make that connection between the 09:59:23 19 paroxetine and the murder/suicide, don't they? 09:59:28 20 A. Believe me, there's definitely consideration as to what 09:59:32 21 medications patients were on when murder/suicide occurs. 09:59:37 22 Recently there was a case in Denver, perhaps you're aware of 09:59:39 23 it, where a 41-year-old man killed his whole family and in 09:59:44 24 the paper it was definitely indicated that he was not on 09:59:48 25 antidepressants. So this has a lot of attention and I think 1270 09:59:53 1 there would be 100 percent reports in terms of any 09:59:55 2 murder/suicide where a person was on Paxil or any other SSRI. 10:00:01 3 Q. Suppose it occurred in a more rural area such as our 10:00:09 4 state? Would you expect that the police would definitely 10:00:09 5 make the connection between Paxil and murder/suicide? 10:00:09 6 A. Yes. I'm sorry, not the police, the medical examiner or 10:00:21 7 coroner. 10:00:27 8 Q. Well, the -- there has to be an autopsy, correct? 10:00:34 9 A. Yes. 10:00:35 10 Q. And not every murder/suicide gets an autopsy, does it? 10:00:39 11 A. I would be horrified if they didn't. 10:00:45 12 Q. Let me ask you this, sir. One of the things that I 10:00:52 13 gathered from your having placed Donald Schell in category 4 10:00:59 14 on Defendant's Exhibit KK is that he was worried about his 10:01:06 15 job? 10:01:08 16 A. Yes. 10:01:10 17 Q. Now, you read the testimony of Mr. Wagner, did you not? 10:01:22 18 A. Maybe you can refresh my memory on that one. 10:01:25 19 Q. Mr. Wagner is the man who provided the work for Donald 10:01:39 20 Schell. His name is Ronald Wagner, and it is mentioned in 10:01:44 21 your report, if you want to look at that, under paragraph 4. 10:01:49 22 It is about the eighth line down, the line that starts with, 10:01:54 23 "Neva Hardy..." 10:02:23 24 It is paragraph 4. Did you find that? 10:02:26 25 A. Yes, I found that. 1271 10:02:28 1 Q. You're aware, then, that Mr. Wagner told Donald Schell at 10:02:32 2 the beginning of this week when he died that Donald Schell 10:02:41 3 could take as long as he needed off from work and that he had 10:02:46 4 a job when he came back; isn't that true? 10:02:53 5 A. That's right. 10:03:11 6 Q. Let me make sure I'm clear on this. I understood from 10:03:14 7 your report that you understood that Mr. Patel -- excuse 10:03:26 8 me -- that Mr. Schell had given up his job, but he hadn't 10:03:31 9 really given up his job, had he? 10:03:33 10 A. He turned over his work to Mr. Nelson, as I recall, 10:03:37 11 because he couldn't do the work. 10:03:38 12 Q. But you wouldn't mean to imply here that he wasn't 10:03:41 13 planning to go back to work, would you? 10:03:45 14 A. I don't know whether he was planning to go back to work or 10:03:47 15 not. 10:03:50 16 Q. So you really couldn't say he had given up his job, could 10:03:53 17 you? 10:03:53 18 A. He gave his work to Mr. Nelson. There's also in the 10:03:57 19 depositions and records of Dr. Patel clearly stating that he 10:04:03 20 was concerned about his job, concerned about oil prices 10:04:06 21 falling, concerned about a number of things concerning his 10:04:10 22 work. 10:04:14 23 Q. You're not discounting what Mr. Wagner said about he could 10:04:17 24 have his -- he could come back to work, take off whatever 10:04:20 25 time he needed and he still had a job, right? 1272 10:04:23 1 A. I think there's a difference between what someone tells 10:04:26 2 him and what he really thinks is happening. You have to 10:04:28 3 realize, this man is depressed. He's very hopeless. His 10:04:33 4 view of the future is very dismal. So in answer to the 10:04:37 5 question as to whether he planned to go back to work, I can't 10:04:40 6 tell. He may not have even seen a future for himself. 10:04:44 7 Things were changing for him. 10:04:45 8 Q. One of the things that you had mentioned was that his wife 10:04:47 9 was becoming a successful real estate agent. Isn't that one 10:04:51 10 of the things you based your report on? 10:04:54 11 A. She had begun working and was doing the job. There was 10:04:58 12 some conflicts in terms of her being away from the home, for 10:05:04 13 example. Mr. Schell, according to Miss McGrath, really 10:05:08 14 wanted her home by 4:00 and at times she did not make it home 10:05:12 15 at 4:00, and in fact, the night before the murder/suicide, 10:05:16 16 she didn't arrive home until around 9:00 at night. 10:05:19 17 So that there's a lot of conflict here, not only in 10:05:23 18 terms of Mr. Schell's occupation and his outlook for the 10:05:27 19 future, but also Mrs. Schell's role and shifting within the 10:05:32 20 family, something that fits into my type that I just 10:05:37 21 described. 10:05:38 22 Q. So that's why you said in your report that his wife was 10:05:41 23 becoming a successful real estate agent, right? 10:05:46 24 A. Yes. 10:05:47 25 Q. In fact, you even referred to the fact that she was close 1273 10:05:50 1 to being in the million-dollar club, correct? 10:05:53 2 A. I didn't say that. Did I say that? 10:05:57 3 Q. Yeah, you said that. 10:05:58 4 A. Let me say it has been a while since I wrote that. 10:06:01 5 Q. Top of page 6, she was close to being in the 10:06:04 6 million-dollar club? 10:06:05 7 A. I may have said it, yes, because I remember Mr. Tobin had 10:06:08 8 said that. According to Mr. Tobin's deposition, she was 10:06:12 9 described as close to being in the million-dollar club. So 10:06:14 10 that's what I based that statement on. 10:06:16 11 Q. Has anyone informed you of Mrs. McGrath's testimony of 10:06:20 12 yesterday that Rita Schell was not a successful real estate 10:06:27 13 agent? 10:06:29 14 A. No, but I think in her deposition she discussed that 10:06:32 15 because Mrs. Schell wasn't able to give the hours necessary 10:06:35 16 and that because of that, she really was struggling in terms 10:06:39 17 of being a real estate agent. That was in her deposition. I 10:06:42 18 don't know what she said yesterday. 10:06:43 19 Q. So it wouldn't be correct for you to say in your report, 10:06:51 20 would it, that, quotes, his wife was becoming a successful 10:06:51 21 real estate agent? 10:06:51 22 A. I'm basing this on the deposition of Mr. Tobin and others. 10:06:55 23 I didn't have -- I'm not sure when I had the deposition of 10:06:57 24 Mrs. McGrath. It was much later than Mr. Tobin's deposition. 10:07:28 25 Q. Were you informed of the testimony, which the jury will 1274 10:07:30 1 recall better than I will, I'm sure, of Dr. Ian Hudson from 10:07:36 2 SmithKline Beecham who testified here? 10:07:38 3 A. No. 10:07:38 4 Q. You're not aware of that? 10:07:39 5 A. I've been told he testified but I've not been told what he 10:07:42 6 testified about. 10:07:42 7 Q. I take it you would disagree with his statement that no 10:07:45 8 one could determine whether Paxil did or did not cause Donald 10:07:54 9 Schell to do what he did? 10:07:57 10 A. What did he say? 10:07:58 11 Q. That's the essence of what he said. 10:08:00 12 A. I would like to know what he said, not the essence of what 10:08:03 13 he said. 10:08:04 14 MR. FITZGERALD: Mr. Vickery -- may I ask while I'm 10:08:06 15 going to another topic Mr. Vickery to -- 10:08:10 16 MR. VICKERY: I will find the section of the 10:08:11 17 deposition. I will find it. 10:08:14 18 MR. FITZGERALD: It was played on video. 10:08:17 19 THE COURT: I recall. 10:08:40 20 Q. (BY MR. FITZGERALD) One of the things I noted in your 10:08:41 21 report was you noted at the time that Mr. Schell transferred 10:08:45 22 his books for the well job that Kevin Nelson observed 10:08:50 23 Mr. Schell to be noticeably pale and shaking; is that 10:08:53 24 correct? 10:08:54 25 A. That's correct. 1275 10:08:54 1 Q. But you did not, unless I missed it, report that when he 10:09:01 2 saw Dr. Patel, Dr. Patel did not notice any shaking? 10:09:17 3 A. I don't think that's quite true. May I look at my report? 10:09:19 4 Q. Sure. If it is in there I would like to know. 10:09:22 5 A. Well, in Dr. Patel's records, this is February 11th, 10:09:25 6 Mr. Schell reported that he was not able to rest and not able 10:09:28 7 to sleep, that he felt tired, edgy, anxious and listless and 10:09:33 8 didn't want to do anything. He said his mind was running at 10:09:36 9 a hundred-mile-per-hour speed. 10:09:38 10 I think that would qualify as being nervous, edgy. 10:09:42 11 He didn't say anything about being pale, but certainly the 10:09:44 12 man was very anxious at the time. 10:09:46 13 Q. And my question was shaky. Dr. Patel did not find 10:09:51 14 shakiness, did he? 10:09:52 15 A. He doesn't say shaky, per se, but he certainly is 10:09:56 16 describing a man who was very upset and very anxious. 10:10:00 17 Q. Are you aware of the fact that Dr. Patel has testified in 10:10:04 18 his deposition when he was asked on page 21 at line 11, "Did 10:10:09 19 you find shakiness?" that he testified no, he did not? 10:10:13 20 A. I'll take your word for it. 10:10:16 21 Q. And also that, "And you examined for it and if you had 10:10:19 22 found it you would have recorded it, right?" And he said, 10:10:22 23 "Correct." 10:10:23 24 A. Yes. 10:10:49 25 MR. FITZGERALD: Maybe this would be appropriate to 1276 10:10:51 1 approach the witness, rather than read it to him. 10:10:54 2 THE COURT: Why don't you read it? 10:10:55 3 A. What is the document? 10:10:57 4 Q. (BY MR. FITZGERALD) This is Dr. Ian R.B. Hudson on page 10:11:01 5 31 of his testimony by deposition which was reviewed by video 10:11:06 6 here. 10:11:08 7 On line 9, page 31, this question was asked: "Now, 10:11:12 8 is it impossible for SmithKline Beecham to determine whether 10:11:15 9 the patient identified in the fifth report on the bottom of 10:11:19 10 that page -- whether his behavior was caused or not caused by 10:11:23 11 Paxil?" 10:11:25 12 His answer was, "On an individual case basis it would 10:11:28 13 be impossible to say whether a drug caused an event." 10:11:32 14 Then this question came: "Do you know if that 10:11:37 15 patient that is reflected down there is the decedent, my 10:11:41 16 client? Is that Donald Schell?" 10:11:43 17 "Answer: I believe it is, yes." 10:11:46 18 "Question: You're telling me under oath it is simply 10:11:49 19 impossible for SmithKline Beecham to decide whether or not 10:11:52 20 Paxil did cause Mr. Schell to murder his wife, his daughter 10:11:56 21 and his granddaughter and then commit suicide; is that right, 10:12:00 22 sir?" 10:12:00 23 He said, "It is impossible on an individual case 10:12:03 24 basis from individual reports to assign causality, especially 10:12:06 25 in a very complicated area such as this. That's why when we 1277 10:12:10 1 have issues we review all the available data and make a 10:12:13 2 determination on the basis of all the available data whether 10:12:17 3 there is an issue or not." 10:12:19 4 A. I've not reviewed that deposition, but I think on an 10:12:22 5 individual case basis, yes, it would be impossible to 10:12:28 6 determine whether Paxil did cause something. 10:12:30 7 Q. Or did not? 10:12:31 8 A. Or did not. However, you have to realize my testimony 10:12:34 9 here is primarily, almost completely involved with testimony 10:12:37 10 about murder/suicide, which this is, and plus presenting my 10:12:41 11 own research on murder/suicide where it was clearly able to 10:12:48 12 determine whether the murderer was on an antidepressant and 10:12:55 13 whether that antidepressant may have been associated with the 10:12:56 14 murder. 10:12:59 15 Again, 128 were not on antidepressants. 10:13:06 16 Q. Dr. Tardiff, let me just ask you a couple of other areas. 10:13:11 17 You're on a web page for Cornell, right? 10:13:15 18 A. I believe so. 10:13:16 19 Q. You've not looked at it? 10:13:17 20 A. No. 10:13:18 21 Q. Well, did you furnish the information about what your 10:13:20 22 plans and your current projects are for the Cornell web page? 10:13:25 23 A. I may have done that years ago. I don't know how often 10:13:28 24 they revise it. 10:13:29 25 Q. Okay. Well, and that's one of the things I wanted to ask 1278 10:13:32 1 you. There's a description on your web page about current 10:13:38 2 projects and it says, "Our current projects include, 4, we 10:13:45 3 plan to expand our studies of homicide by studying 10:13:49 4 perpetrators. Conversely, in our psychiatric patients we 10:13:53 5 will study them as the victims of violence." 10:13:55 6 So that was a project that was current as of when? 10:14:01 7 A. I don't know. It is an ongoing project. 10:14:04 8 Q. Okay. Now -- 10:14:08 9 A. We have done that. We have done that. 10:14:13 10 Q. And you would consider Don Schell to be a psychiatric 10:14:16 11 patient, would you not? 10:14:17 12 A. Yes. 10:14:18 13 Q. So your plan as far as your work at Cornell goes would be 10:14:20 14 to study psychiatric patients as victims of violence, 10:14:24 15 correct? 10:14:25 16 A. Yes. 10:14:25 17 Q. All right. Now, Doctor, the -- 10:14:29 18 A. What I'm talking about, okay, is, for example, one study 10:14:34 19 are victims of domestic abuse who are also psychiatric 10:14:40 20 patients. And I'll give you an example of one study we did. 10:14:43 21 We looked at psychiatric inpatients and whether there was a 10:14:48 22 history of sexual or physical abuse. 10:14:50 23 We then interview them in a hospital. We then also 10:14:54 24 interview them about a whole wide range of things like 10:14:57 25 suicide attempts, violence, drug abuse. And in one paper 1279 10:15:01 1 which was recently published, we found that victims of sexual 10:15:06 2 or physical abuse were more likely than psychiatric patients 10:15:09 3 who were not physically abused or sexually abused, to be 10:15:13 4 addicted to drugs, particularly opiates, heroin. 10:15:21 5 Q. Now, Doctor, you've testified since -- going to the period 10:15:30 6 of April 3rd, 2001, just a little over a month ago, you had 10:15:36 7 in the past four years testified by trial or deposition as a 10:15:40 8 witness in 17 cases; isn't that true? 10:15:45 9 A. That's correct. 10:15:45 10 Q. And you were not new to that area of giving testimony? I 10:15:55 11 mean, you did it before starting four years ago, right? 10:15:58 12 A. Yes. Is there a question? 10:16:22 13 Q. That's my question. I wanted to know if that's right. 10:16:22 14 A. That's correct. 10:16:22 15 MR. FITZGERALD: May I have a moment, please, Your 10:16:22 16 Honor? 10:16:22 17 THE COURT: Yes, you may. 10:16:50 18 MR. FITZGERALD: Nothing further. 10:16:51 19 THE COURT: Any redirect? 10:16:53 20 MR. PREUSS: No, Your Honor. 10:16:53 21 THE COURT: May this witness be permanently excused? 10:16:56 22 MR. FITZGERALD: Yes. 10:16:57 23 THE COURT: Thank you, Dr. Tardiff, and you're 10:16:59 24 excused from further attendance at this trial. 10:17:03 25 Counsel, who is your next witness? 1280 10:17:06 1 MR. GORMAN: We would call Detective Sergeant Steve 10:17:13 2 Rozier, Your Honor. 10:18:02 3 MR. FITZGERALD: Your Honor, may I give Exhibit KK to 10:18:05 4 the clerk? 10:18:08 5 MR. PREUSS: They're all on there. Can you just flip 10:18:11 6 it? 10:18:12 7 MR. FITZGERALD: Sure. 10:18:35 8 (Witness sworn.) 10:18:37 9 THE CLERK: Please state your name and spell it for 10:18:40 10 the record. 10:18:47 11 THE WITNESS: My name is Steven C. Rozier, 10:18:50 12 R O Z I E R. 10:18:54 13 MR. GORMAN: Good morning, Your Honor. I haven't had 10:18:57 14 a chance to say good morning. 10:18:58 15 Good morning, ladies and gentlemen. 10:18:59 16 THE COURT: Mr. Gorman. 17 18 STEVEN ROZIER, 19 called as a witness on behalf of the Defendant, being first 20 duly sworn, testified as follows: 21 DIRECT EXAMINATION 10:19:02 22 Q. (BY MR. GORMAN) It is Detective Sergeant Rozier; is that 10:19:06 23 correct? 10:19:07 24 A. Yes, sir, it is. 10:19:08 25 Q. Tell us where you reside, Detective Rozier. 1281 10:19:14 1 A. I reside in Gillette, Wyoming. 10:19:16 2 Q. And you're currently employed in what capacity? 10:19:21 3 A. I'm the detective sergeant at the Gillette Police 10:19:24 4 Department, detective division supervisor. 10:19:26 5 Q. And what does it mean to be a detective sergeant or 10:19:31 6 supervisor of the detective division in the Gillette Police 10:19:34 7 Department? 10:19:35 8 A. I oversee the Gillette Police Department detective 10:19:42 9 division. I have five detectives who work under me. I also 10:19:47 10 have one officer who I share control of who is assigned to 10:19:57 11 the Northeast Wyoming Drug Enforcement Team. 10:20:01 12 And my responsibilities include general investigation 10:20:06 13 and various types of crimes that occur in Gillette. I also 10:20:11 14 supervise the other detectives in the division in their case 10:20:15 15 assignments and their caseloads. 10:20:30 16 I review and approve reports and conduct criminal 10:20:30 17 investigations at crime scenes and also delegate assignments 10:20:31 18 out on the larger cases when we have several detectives 10:20:35 19 working a particular crime or crime scene. 10:20:39 20 Q. In the capacity and with the job responsibilities that you 10:20:47 21 just described, is that the role that you served in 10:20:47 22 connection with murder/suicide that took place in the Schell 10:20:52 23 residence on February 13th of 1998? 10:20:55 24 A. Yes, it is. 10:20:58 25 Q. How many years have you been doing your job? 1282 10:21:03 1 A. I've been with the police department -- I started in July 10:21:05 2 of 1980 and in 1989 I was promoted to detective sergeant, and 10:21:14 3 I've been the detective sergeant since '89. 10:21:18 4 So I've been in law enforcement 20 years and 10:21:22 5 approximately six months -- correction -- almost ten months 10:21:28 6 now and as supervisor a little over 11 years. 10:21:34 7 Q. Tell the ladies and gentlemen of the jury, if you would, 10:21:37 8 your educational background and what type of training you 10:21:39 9 have received as a police officer. 10:21:42 10 A. I attended -- when I graduated high school, served a tour 10:21:50 11 of duty in the military, the Army, after which I applied at 10:21:53 12 the -- my first role in law enforcement was at the Gillette, 10:21:58 13 Wyoming Police Department. 10:21:59 14 I applied there in 1980. That was after I had done 10:22:05 15 some contract narcotic investigation for the police 10:22:08 16 department. And then in '80 I applied and went with the 10:22:13 17 department full time. 10:22:17 18 And approximately two years after that I attended the 10:22:20 19 Wyoming Law Enforcement Academy located at Douglas, Wyoming. 10:22:25 20 I graduated from that academy. 10:22:29 21 Over the course of my 20 years I've received a little 10:22:35 22 over 1400 hours of law enforcement training in various areas 10:22:41 23 of investigation and criminal investigation and police 10:22:50 24 actions. 10:22:51 25 Q. Are you a certified police officer in the state of 1283 10:22:54 1 Wyoming? 10:22:54 2 A. I hold a professional certificate from the POST office 10:23:00 3 from the State of Wyoming. 10:23:02 4 Q. And how does one achieve that status in this state? 10:23:09 5 A. It is a process whereby you receive credit for the number 10:23:13 6 of hours of training that you receive over the course of your 10:23:17 7 career, and when you reach certain levels of training, you 10:23:24 8 are awarded certificates, starting with basic up through 10:23:28 9 intermediate and into professional law enforcement officer 10:23:32 10 status. 10:23:33 11 Q. And when did you receive your professional law enforcement 10:23:38 12 ranking? 10:23:40 13 A. It was over ten years ago. I could not give you the 10:23:42 14 specific date. I don't have the certificate with me. 10:23:45 15 Q. Do you have to -- lawyers have to do continuing legal 10:23:48 16 education. As a professional police officer do you have to 10:23:52 17 continue to recertify or have your professional certificate 10:23:58 18 renewed? 10:24:00 19 A. Yes, you do. It is issued and there are requirements to 10:24:06 20 continue and to participate in ongoing law enforcement 10:24:12 21 education, and that's done through regional schools, it is 10:24:16 22 done through schools that you can attend at the Wyoming Law 10:24:22 23 Enforcement Academy. You can also attend schools outside of 10:24:26 24 your region, anything that would qualify for what the State 10:24:31 25 of Wyoming would determine is POST credit through the Police 1284 10:24:36 1 Officers Standards and Training Commission could be credited 10:24:41 2 towards your maintaining a specific certificate rating. 10:24:50 3 Q. Now, were you the detective who supervised or was in 10:24:53 4 charge of the investigation into the murder/suicides 10:24:57 5 involving Mr. Schell? 10:24:58 6 A. Yes, I was. 10:25:00 7 Q. Could you tell the ladies and gentlemen of the jury how 10:25:02 8 you became involved in the Schell investigation. 10:25:06 9 A. In our department because of its size we take turns in the 10:25:13 10 detective division rotating what is called on-call status 10:25:17 11 because in the event that a crime should occur within the 10:25:21 12 city, it is very possible that a detective or investigator 10:25:27 13 could be needed after the normal business hours. 10:25:32 14 Primarily my division works Monday through Friday and 10:25:37 15 we have people on staff from 8:00 in the morning until 6:00 10:25:40 16 p.m. in the evening. 10:25:42 17 However, when events occur after 6:00 p.m., there's 10:25:46 18 an on-call status that's maintained and each of the 10:25:50 19 detectives, including myself, take a rotational call. And 10:25:57 20 our call lasts a week at a time and, of course, the next 10:26:04 21 person comes on call. 10:26:05 22 On this particular occasion the detective on call was 10:26:08 23 Kent Clark. And whenever there is a homicide within the 10:26:12 24 city, whether I'm on call or not, the detective sergeant is 10:26:18 25 notified and does respond to those types of situations just 1285 10:26:23 1 because of the complexity of some of the cases that we run 10:26:26 2 into. 10:26:27 3 Q. And the detective sergeant was you? 10:26:29 4 A. Yes, it was. 10:26:32 5 Q. And you have your file with you. Is that the file from 10:26:35 6 the Gillette Police Department? 10:26:38 7 A. I have part of the file here and there's -- it was 10:26:41 8 obviously a pretty big file, but this contains most of the 10:26:44 9 materials. 10:26:45 10 Q. Can you tell us when you responded to the call involving 10:26:49 11 the Schell incident? 10:26:52 12 A. Would have been at approximately 7:30. I believe the time 10:27:00 13 noted in one of the reports is noted as 7:38 p.m. and that 10:27:09 14 was approximately 25 to 30 minutes after the initial call was 10:27:13 15 dispatched. 10:27:20 16 Q. And we're talking about 7:38 p.m. on February 13th of 10:27:20 17 1998? 10:27:20 18 A. Yes. 10:27:20 19 Q. Did you respond to the scene? 10:27:22 20 A. Yes, I did. 10:27:22 21 Q. What did you find when you arrived at the scene? 10:27:25 22 A. When I arrived there I first met with the uniformed 10:27:28 23 officers on the scene. The primary officer at that time was 10:27:34 24 Officer Michael Wenz, and Michael Wenz gave me a briefing as 10:27:40 25 to the nature of the call he was dispatched on, which was a 1286 10:27:44 1 welfare check. 10:28:21 2 A welfare check is a call that's dispatched by the 10:28:21 3 police department to one of the patrol officers who is 10:28:21 4 working to go to a particular area or location, meet with 10:28:21 5 whoever has made the call, and determine the nature of the 10:28:21 6 request and if possible to a welfare check on whoever the 10:28:21 7 parties would be concerned about. 10:28:21 8 Mike Wenz relayed that to me and he said that the 10:28:21 9 person he met at the Schell home was Timothy Tobin and that 10:28:25 10 Timothy had concerns about the welfare of his wife and 10:28:29 11 daughter and his in-laws. 10:28:35 12 And Mike Wenz continued to brief me about entry into 10:28:39 13 the home and going to the upper level of the home and 10:28:42 14 discovering four dead bodies in what was later determined to 10:28:48 15 be the master bedroom of that home. 10:28:53 16 MR. GORMAN: Your Honor, would you like to take your 10:28:54 17 break now? 10:28:55 18 THE COURT: Maybe that would be a good idea. Let's 10:28:57 19 do that at this time. We will take our morning recess and 10:29:00 20 stand in recess for 15 minutes. 10:29:04 21 (Recess taken 10:29 a.m. until 10:45 a.m.) 10:48:05 22 THE COURT: Detective Rozier, you understand you're 10:48:08 23 still under oath? 10:48:10 24 THE WITNESS: Yes, sir, I do. 10:48:12 25 THE COURT: Please be seated. 1287 10:48:13 1 Q. (BY MR. GORMAN) We -- I think we're at a point where you 10:48:24 2 were getting your briefing from Officer Wenz and you were 10:48:27 3 talking about the briefing you received in terms of what was 10:48:29 4 found when Officer Wenz initially entered the home. 10:48:34 5 Could you continue with your discussion about your 10:48:35 6 briefing in that respect? 10:48:38 7 A. After Officer Wenz informed me that he had responded to 10:48:43 8 the Schell home, he had met with Tim Tobin, that Tim had 10:48:52 9 relayed to Officer Wenz his concerns about his wife and 10:48:56 10 daughter as well as his in-laws, at that point Officer Wenz 10:49:04 11 informed me that he along with Tim Tobin and a neighbor 10:49:08 12 entered the Schell house and proceeded to do a cursory search 10:49:16 13 through the house to see if anyone was home. 10:49:20 14 Officer Wenz informed me that upon reaching the upper 10:49:23 15 level of the house and proceeding down the hallway, that as 10:49:29 16 they approached what was later determined to be the master 10:49:32 17 bedroom door, that Officer Wenz could see four deceased human 10:49:40 18 bodies in the room and that Tim Tobin was right behind 10:49:47 19 Officer Wenz coming down the hallway towards the room, and 10:49:53 20 that once Officer Wenz saw this scene, he immediately tried 10:49:56 21 to turn around and to usher Mr. Tobin out of the residence. 10:50:04 22 Mr. Tobin was taken outside of the residence and at 10:50:11 23 that time he was very upset and Officer Wenz asked if he 10:50:16 24 could go to the neighbor's house and wait with the neighbor 10:50:22 25 while Officer Wenz did some follow-up. 1288 10:50:24 1 Q. And the neighbor was Vernon Brown? 10:50:28 2 A. Yes, sir. 10:50:28 3 Q. Okay. When -- strike that. 10:50:35 4 Were EMTs called to the scene? 10:50:37 5 A. Yes, they were. 10:50:38 6 Q. And do you recall who those people were and why they were 10:50:43 7 called? 10:50:46 8 A. One of the EMTs I remember was Tim Williams. And usually 10:50:54 9 anytime we arrive at a scene, the officers, while they are 10:50:59 10 trained in emergency procedures, CPR, things of that nature, 10:51:05 11 they still don't have EMT or medical status, so it is pretty 10:51:13 12 much a call by the officer at the scene to call medical 10:51:18 13 personnel to get them on the scene in the event they're 10:51:22 14 needed. 10:51:23 15 In this particular case they were brought to the 10:51:27 16 scene. Officer Wenz escorted them up to the master bedroom 10:51:32 17 area where the EMTs made a determination that resuscitation 10:51:39 18 or attempts to revive in this case would be unnecessary or 10:51:44 19 would be futile. 10:51:48 20 Q. Now, the reports I believe in the case indicate that the 10:51:51 21 EMTs were a Mr. Tim Williams, as you've mentioned, and a 10:51:56 22 Mr. Duane Montoya? 10:51:58 23 A. Yes, sir, that's correct. 10:51:59 24 Q. After Mr. Williams and Mr. Montoya assessed the situation, 10:52:05 25 what next happened? 1289 10:52:06 1 A. At that point the EMTs were ushered from the residence. 10:52:13 2 One of the things that is very necessary in investigations, 10:52:19 3 any investigation, but particularly in an investigation of 10:52:22 4 death, is to preserve or protect a crime scene so that 10:52:27 5 there's minimal contamination of the scene so that as it 10:52:37 6 is -- as investigators begin to work the scene, that it is 10:52:39 7 uncontaminated by outside people more than absolutely -- no 10:52:51 8 more than absolutely necessary. The EMTs are ushered from 10:52:55 9 the residence. Additional officers are brought in to secure 10:53:00 10 that scene. Mr. Tobin is sent next door to Vernon Brown's 10:53:04 11 residence to remain. 10:53:06 12 And once the EMTs were done inside the residence, 10:53:09 13 they also went to -- at the request of Mr. Brown went over to 10:53:19 14 check on Mr. Tobin due to the circumstances and make sure 10:53:23 15 that his condition was monitored. 10:53:30 16 Q. Does there come a time when Mr. Eekhoff is called, the 10:53:34 17 coroner? 10:54:07 18 A. Tom Eekhoff is the coroner for Campbell County. He's 10:54:07 19 contacted in the normal course of operations in death scenes. 10:54:07 20 He was contacted. I was contacted and I responded as well. 10:54:07 21 When Mr. Eekhoff arrived there, as the coroner he was 10:54:07 22 then taken into the scene for one purpose. As coroner, he 10:54:09 23 has responsibilities and also assists in determining time of 10:54:14 24 death and things of that nature that will aid us in the 10:54:20 25 investigation later. 1290 10:54:22 1 Q. And did Mr. -- is it Eekhoff? 10:54:24 2 A. Eekhoff. 10:54:25 3 Q. Did Mr. Eekhoff do that in this case? 10:54:28 4 A. Yes, he did. 10:54:29 5 Q. I also understand that the Wyoming State Crime Lab was 10:54:32 6 notified. Why was that? 10:54:37 7 A. Gillette is a -- Gillette is not Los Angeles. It is a 10:54:43 8 small community and the resources that are offered through 10:54:53 9 the Wyoming State Crime Lab to any small agency within 10:54:56 10 Wyoming are, to some degree, much superior than you can find 10:55:03 11 on a local level in terms of evidence collection, collection 10:55:06 12 technicians, forensic scientists and also equipment needed to 10:55:12 13 process a crime scene of this nature. 10:55:15 14 This is a fairly large, complex crime scene to be 10:55:24 15 worked by a local agency, and the resources are there so we 10:55:28 16 utilize those resources, as well as other resources that were 10:55:33 17 called in were investigators from the Northeast Wyoming Drug 10:55:38 18 Enforcement Team. They also assist in serious felony crimes. 10:55:43 19 I also made contact with the Campbell County 10:55:45 20 Sheriff's Office investigative division to have them respond 10:55:53 21 and to also be on standby in the event we needed additional 10:56:00 22 manpower. 10:56:01 23 Q. Was the Campbell County coroner, Mr. Eekhoff, able, based 10:56:06 24 upon his inspection and analysis of the scene, to make a 10:56:11 25 determination regarding times of death? 1291 10:56:14 1 A. He came up with a time frame roughly from late Thursday 10:56:22 2 evening up until sometime early Friday morning, was about as 10:56:30 3 close as he could get. He could not give a specific time, 10:56:37 4 for instance, 2:00 a.m. or 3:00 a.m. 10:56:44 5 Q. What happens now? Does the investigation into the facts 10:56:46 6 and circumstances begin? 10:56:49 7 A. It does, as well as at this point in our investigation 10:56:55 8 what we know is we have four people who have died, apparently 10:57:01 9 as a result of gunshot wounds. Our investigation at that 10:57:06 10 point begins to focus on getting the resources to work this 10:57:11 11 crime scene as well as to begin to develop suspects to try to 10:57:20 12 ascertain who is responsible for these deaths. 10:57:24 13 One of the sources of information that we had to 10:57:28 14 follow up on was Tim Tobin in terms of the information he 10:57:33 15 could supply us about why his wife and daughter were in 10:57:37 16 Gillette when we learned that he lived in Billings. 10:57:44 17 We also have to enter an investigation like this 10:57:47 18 looking across a fairly wide spectrum and not just focus on 10:57:55 19 an individual person or theory, so one of the things that 10:58:03 20 became important to us early on was to determine Tim Tobin's 10:58:07 21 role in discovering the bodies as well as what he knew about 10:58:16 22 the circumstances at hand, and, quite frankly, whether or not 10:58:21 23 he was involved. 10:58:24 24 Q. What steps, Detective, were taken to secure the scene 10:58:28 25 during the investigation? 1292 10:58:30 1 A. The scene was controlled by uniformed officers who 10:58:37 2 maintained a perimeter around the residence to keep any 10:58:44 3 unauthorized persons from entering the property. And those 10:58:49 4 officers were stationed there and remained there until the 10:58:53 5 conclusion of our investigation. 10:58:55 6 Q. And what, in a nutshell, would your responsibilities be in 10:59:01 7 connection with the investigation, then, that was to follow? 10:59:05 8 A. I would direct individuals, officers and investigators, to 10:59:15 9 complete specific tasks, also to make notifications of the 10:59:20 10 people that we needed to notify. For instance, the upper 10:59:23 11 staff at police department, chief and lieutenants, are 10:59:29 12 notified in cases like this. And also, briefings are held at 10:59:31 13 the police department, in this case to reduce and control any 10:59:38 14 contamination of the crime scene. 10:59:41 15 Q. Now, was there more than one scene to investigate in 10:59:46 16 connection with this crime? 10:59:48 17 A. Yes, there was. 10:59:49 18 Q. How many scenes were there and what steps were taken just 10:59:54 19 generally to investigate those scenes? 10:59:58 20 A. Well, the residence at 701 West Fifth, the house itself, 11:00:04 21 was a scene. There were also vehicles that were associated 11:00:07 22 with that residence that were additional scenes that needed 11:00:11 23 to be processed, one being the vehicle that Tim Tobin drove 11:00:16 24 down from Billings. 11:00:18 25 Additionally, there was what might be described as 1293 11:00:26 1 another scene which would be the Tobin residence in Billings, 11:00:29 2 Montana, and that became one of the concerns that we had to 11:00:34 3 address as well in an effort to rule out Mr. Tim Tobin as 11:00:46 4 having any involvement in this particular incident. 11:00:51 5 Q. You were able to do that, to rule out Mr. Tobin as a 11:00:55 6 suspect? 11:00:55 7 A. Yes, we were. 11:00:56 8 Q. And we will go into that a little bit. 11:00:58 9 Were there other scenes? We have the car, the Schell 11:01:02 10 residence, the residence -- Tobin residence in Billings. Any 11:01:08 11 others that were -- 11:01:09 12 A. Not necessarily that needed to be processed as a crime 11:01:12 13 scene, but there were other locations that we needed to 11:01:19 14 address with investigators in terms of looking for evidence. 11:01:24 15 Q. And what -- tell us what some of those were. 11:01:27 16 A. For instance, the office at -- that Rita Schell worked at, 11:01:31 17 Boardwalk ERA Realty. There was also another son by the name 11:01:39 18 of Michael Schell who lived in Colorado, Westminster, I 11:01:44 19 believe, who we needed to make a determination as to where he 11:01:56 20 was and if he had any information that would shed light on 11:02:00 21 this incident. 11:02:02 22 Q. Go ahead. 11:02:03 23 A. And at this point we have to have real concern that 11:02:08 24 whoever is responsible for these deaths may be outside these 11:02:11 25 residences. We can't rush up, take a look in a room and 1294 11:02:14 1 decide this is what happened. We have to approach it from a 11:02:20 2 multifaceted standpoint in the event someone has committed 11:02:26 3 these homicides and is outside the residence in the community 11:02:29 4 somewhere. 11:02:32 5 Q. We mentioned Mr. Tobin. He was ruled out as a suspect? 11:02:36 6 A. Yes, sir. 11:02:36 7 Q. And you mentioned Mr. Schell, Michael Schell, the son. 11:02:41 8 Efforts were made also to rule him out as a suspect, true? 11:02:44 9 A. Yes, sir. 11:02:45 10 Q. Was Mr. Mike Schell also ruled out by your investigation 11:02:48 11 as a suspect in this case? 11:02:50 12 A. Yes, he was. 11:02:55 13 Q. Then because you were able to rule out Mr. Tobin and Mike 11:03:00 14 Schell, did your focus then go back into the Schell residence 11:03:04 15 in Gillette? 11:03:10 16 A. Our focus was always there in terms of the evidentiary 11:03:13 17 value that's within this residence, but we still did not 11:03:20 18 close our eyes to potential outside involvement of others. 11:03:24 19 And at that point when the crime team from the lab 11:03:28 20 showed up, we began to process the scene and we were able to 11:03:31 21 make some determinations from the scene. 11:03:33 22 Q. Can you tell the ladies and gentlemen of the jury how the 11:03:37 23 crime scene then in the Schell home was processed? 11:03:41 24 A. Yes. The first thing that usually takes place in a crime 11:03:46 25 scene, that did take place in this scene, was overall 1295 11:03:50 1 photography of the crime scene. 11:03:53 2 The State Crime Lab scientist arrived. They were 11:03:56 3 given a briefing on the location of the residence. A search 11:04:02 4 warrant was procured for that residence because that's a 11:04:06 5 requirement the State Crime Lab has before they'll enter and 11:04:11 6 process. 11:04:11 7 Once they were briefed, determination of duties was 11:04:18 8 developed as to who would photograph, who would sketch and 11:04:22 9 those duties were broken up amongst the crime scene and 11:04:28 10 investigators. 11:04:30 11 And then the team went to the Schell house and began 11:04:34 12 to photograph and work their way from the lower levels 11:04:42 13 through the house up to the living room level and then up the 11:04:47 14 hallway to the master bedroom level. 11:04:51 15 Q. Was it you who organized this investigation or this 11:04:54 16 processing? 11:04:55 17 A. In part. It was a collective process. In terms of actual 11:05:06 18 people involved, yes, I made that determination. The crime 11:05:14 19 lab, though, has procedures that they follow and those 11:05:19 20 were -- they had their say and it was kind of a group effort 11:05:22 21 to get it done. 11:05:25 22 Q. In part of processing the crime scene in a crime like this 11:05:30 23 is it standard procedure to remove medications from a crime 11:05:37 24 scene? 11:05:39 25 A. Yes, it is. 1296 11:05:40 1 Q. And why is that? 11:05:44 2 A. One of the -- and you have to understand, this particular 11:05:50 3 crime scene did not take just one hour to process. This was 11:05:57 4 actually over a day to process this scene. And as part of 11:06:02 5 that we are looking for anything that might be of evidentiary 11:06:08 6 value, as well as things that we don't know if they will come 11:06:18 7 into play later. 11:06:18 8 So in scenes like this we're going to seize 11:06:18 9 medication prescriptions. They can give us information as to 11:06:23 10 identities of people in the household. 11:06:26 11 Q. Do you know from your review of the record or you have 11:06:29 12 independent knowledge of how much medication was seized in 11:06:32 13 this particular investigation? 11:06:37 14 A. I believe it is documented in one of the reports. I think 11:06:41 15 there -- Paxil was one of the medications that was removed, 11:06:47 16 as well as a medication called Ambien, and there were a 11:06:52 17 couple of other medications that were removed that I believe 11:07:03 18 might have been prescribed for Deb Tobin. 11:07:06 19 Q. I show a report here, I think it is -- and you will have 11:07:12 20 to help us out. It is a supplemental report from officer 11:07:19 21 designated as 230. It shows that nine containers of pills 11:07:28 22 and medication and one container of prescription medication 11:07:31 23 was taken. 11:07:33 24 Does that comport with your recollection? 11:07:36 25 A. Yes, sir, it would. And 230 is the badge number for 1297 11:07:41 1 Detective Kent Clark and that would mean he was the one that 11:07:45 2 authored that report. 11:07:47 3 Q. Now, we -- you told the ladies and gentlemen of the jury 11:07:52 4 based upon -- and let's back up. In order to process, for 11:07:58 5 example, the scene of the Tobin home in Billings, you 11:08:03 6 actually sent investigators to Billings to undertake some 11:08:07 7 investigation in that respect, true? 11:08:08 8 A. Yes, we did. 11:08:09 9 Q. And with respect to Michael Schell, you had investigators 11:08:13 10 in Colorado follow up with Mr. Schell, true? 11:08:15 11 A. Yes, we did. 11:08:16 12 Q. And based upon those investigations, as we indicated, you 11:08:23 13 were able to rule out Mr. Tobin as a suspect in this crime 11:08:26 14 and Mike Schell, true? 11:08:28 15 A. Yes, sir. 11:08:29 16 Q. Were you able, based upon your processing of the scene, to 11:08:35 17 rule out any other outside perpetrators of this crime? 11:08:41 18 MR. FITZGERALD: Excuse me, Your Honor. I don't know 11:08:42 19 whether we're going to go into the area of opinions here 11:08:46 20 or -- 11:08:47 21 MR. GORMAN: We're not. 11:08:48 22 MR. FITZGERALD: We have a stipulation on virtually 11:08:50 23 all of this, and I'm objecting if this is going to lead to an 11:08:55 24 opinion. 11:08:57 25 THE COURT: Overruled at this point. 1298 11:09:02 1 Q. (BY MR. GORMAN) Were you -- you ruled out Mr. Tobin, you 11:09:05 2 ruled out Mr. Schell. You told the ladies and gentlemen of 11:09:08 3 the jury you can't go into a scene and just not as a matter 11:09:14 4 of course rule out an outside person, outside person coming 11:09:19 5 into the home to commit the crime, true? 11:09:21 6 A. Yes, sir. 11:09:21 7 Q. Based upon -- is that one of the issues that is a standard 11:09:27 8 practice in a crime scene investigation like this, is to rule 11:09:32 9 out or rule in outside perpetrators? 11:09:35 10 A. Yes, sir. 11:09:36 11 Q. Did you do that in this case? 11:09:39 12 A. Yes, we did. 11:09:40 13 Q. And would you tell the ladies and gentlemen of the jury 11:09:42 14 how you either ruled in or ruled out an outside perpetrator 11:09:47 15 in this case? 11:09:48 16 A. Well, one of the things that we were able to do when we 11:09:55 17 were processing the scene is examine the house in its 11:10:02 18 entirety. The actual bedroom in which the deaths occurred 11:10:08 19 had quite a bit of biological material in the way of blood 11:10:14 20 and human material. This particular residence has a very 11:10:19 21 light-colored carpet and this light-colored carpet runs down 11:10:23 22 through the hallway. 11:10:25 23 By working the scene and the entire house as we did, 11:10:32 24 we were able to find no evidence that anyone was in that room 11:10:38 25 that left the room and would have left trace evidence, for 1299 11:10:44 1 instance, blood spots or footprints or things like that going 11:10:47 2 down the hallway. And we could find no evidence to indicate 11:10:54 3 that anybody had been in the room and had left the room after 11:11:00 4 the shots were fired. 11:11:06 5 Q. In conducting an investigation like this, what types of 11:11:10 6 reports are generated, then, to assist in the investigation? 11:11:17 7 A. There are reports generated from the Wyoming State Crime 11:11:23 8 Lab in terms of their actual role in seizing and preserving 11:11:31 9 evidence. 11:11:31 10 There are autopsy reports that are generated by the 11:11:34 11 State Crime Lab and the pathologist who would do the 11:11:37 12 autopsies. 11:11:39 13 There are reports generated by the individual 11:11:42 14 officers involved in the crime scene investigation. 11:11:53 15 There would be reports and death certificates 11:11:56 16 produced by the coroner's office. 11:11:58 17 There are also affidavits supporting search warrants 11:12:01 18 that are part of the record in a case like this. 11:12:08 19 Q. In your role as the supervisor or detective sergeant of 11:12:11 20 the operation, do you review these reports when they are, in 11:12:15 21 fact, presented to you? 11:12:16 22 A. Yes, I do. 11:12:18 23 Q. In analyzing a crime scene like this is it also customary 11:12:24 24 to make efforts to determine bullet paths or trajectories? 11:12:35 25 A. Yes, it is. 1300 11:12:36 1 Q. Was that done in this case? 11:12:37 2 A. Yes, it was. 11:13:30 3 Q. And to attempt to locate bullets or shell casings? 11:13:30 4 A. Yes, it is. 11:13:30 5 Q. And was that done in this case? 11:13:30 6 A. Yes, it was. 11:13:30 7 Q. Why are reports like the type you've just prepared -- why 11:13:30 8 do you prepare reports like this in the course of a crime 11:13:30 9 investigation? 11:13:30 10 A. In order to make a determination or resolve what occurred 11:13:30 11 in a crime the crime scene is important, but you have to take 11:13:30 12 the crime scene, the actual physical location where the crime 11:13:30 13 occurred and couple that with information obtained by 11:13:30 14 numerous other officers who have been assigned to numerous 11:13:30 15 other tasks. 11:13:30 16 All of those officers generate a report which 11:13:41 17 preserves, I guess, in written form information they've 11:13:44 18 received from other individuals as well as information they 11:13:49 19 have seen and documented themselves. 11:13:50 20 And a compilation of all of those things has to be 11:13:53 21 put together and has to be looked at to come up with the, I 11:13:59 22 guess, the end result or the conclusion as to what occurred. 11:14:02 23 Q. Is the information in -- excuse me. Are all efforts made 11:14:09 24 in gathering the information and preparing the reports -- is 11:14:13 25 it important to make the reports accurate and complete? 1301 11:14:16 1 A. Yes, it is. 11:14:19 2 Q. Now, do you know the investigators who worked this crime 11:14:24 3 scene? 11:14:26 4 A. Yes, I do. 11:14:30 5 Q. Did you review their reports? 11:14:33 6 A. Yes, I did. 11:14:34 7 Q. Do you believe the reports that were prepared for this 11:14:39 8 event to be reliable and trustworthy? 11:14:43 9 A. Yes, I do. 11:14:44 10 Q. And that the information in the reports about this crime 11:14:48 11 is accurate? 11:14:51 12 A. Yes, I do. 11:14:54 13 Q. What did you learn about the weapons that were found at 11:14:58 14 the scene of this crime? 11:15:02 15 A. I learned that both weapons were located inside the master 11:15:07 16 bedroom, that a .22 caliber revolver, being one of the 11:15:15 17 weapons, was located on the end of the bed in the master 11:15:18 18 bedroom on the corner closest to the door. 11:15:23 19 The other revolver, a .357 magnum Python, was found 11:15:44 20 on the floor at the foot of the bed in the area of Don 11:15:44 21 Schell's left hand. I also learned that the .22 caliber 11:15:48 22 pistol had six spent cartridges; in other words, six fired 11:15:55 23 cartridges because there were six empty casings in the 11:15:58 24 revolver. 11:16:00 25 Additionally, the .357 magnum had four spent casings 1302 11:16:05 1 or expended casings, meaning that it had been shot four times 11:16:33 2 and there were still two live cartridges in there. 11:16:33 3 Q. You said that a diagram was made of the crime scene? 11:16:33 4 A. Yes, sir. 11:16:33 5 MR. GORMAN: I'm going to show the ladies and 11:16:33 6 gentlemen of the jury, Judge, page 114 of Joint Exhibit 243. 11:16:42 7 Q. (BY MR. GORMAN) And I want you, first of all, Detective 11:16:52 8 Rozier, to look at this document and tell us -- I don't know 11:16:55 9 if we can focus that better -- is this the diagram that was 11:16:59 10 prepared as a result of the investigation that was done into 11:17:06 11 this crime? 11:17:07 12 A. Yes, it is. 11:17:12 13 Q. Now, there's a few things I need to -- and you have a 11:17:16 14 pointer there. I think you can see on your screen. Could 11:17:20 15 you just orient the ladies and gentlemen of the jury to -- 11:17:26 16 you mentioned a southwest bedroom, the master bedroom. Could 11:17:30 17 you identify that on the exhibit for us? 11:17:35 18 A. It would be located right here, this bedroom. This is the 11:17:40 19 doorway and this is the bed in the master bedroom and that is 11:17:45 20 a dresser and that is a dresser bureau. 11:17:53 21 Q. Would you quickly identify the other areas of the home 11:17:55 22 that are shown on the exhibit? 11:17:59 23 A. This appeared to be a guest room that would have been 11:18:03 24 occupied by Deb Tobin. This appears to be set up as a baby 11:18:08 25 room. This is the upstairs bathroom and this is the 1303 11:18:17 1 kitchen/dining room area, and this is the living room and 11:18:21 2 this would be the front door going out of the residence. 11:18:25 3 This is the hallway from the master bedroom and the 11:18:29 4 guest room and the baby room, and there are steps that go 11:18:32 5 down to this particular level, and then there's another set 11:18:36 6 of steps that go down to a lower level in the home. 11:18:42 7 Q. Now, you mention the beds in what would be the southwest 11:18:50 8 bedroom and the northwest bedroom and there's some marks 11:18:54 9 drawn across the beds. 11:18:57 10 For example, let's look at the northwest bedroom. 11:19:01 11 What are those marks meant to depict? 11:19:09 12 A. These marks depict the covers on the bed being down, in 11:19:12 13 other words, the bed is not made and that's the artist's 11:19:18 14 depiction of that. 11:19:19 15 And then in the southwest bedroom, this line across 11:19:24 16 here indicates that the covers from the bed are down, rolled 11:19:30 17 back. 11:19:30 18 Q. Did it appear, based upon your analysis of the crime 11:19:37 19 scene, that the beds had been slept in during the course of 11:19:42 20 the night that led to these events? 11:19:45 21 A. It appeared to me that the -- that people had been in 11:19:50 22 those beds. 11:19:54 23 Q. Okay. Now, you had mentioned the positioning of some 11:20:07 24 weapons -- 11:20:10 25 MR. GORMAN: And I'm sorry if I'm blocking your way. 1304 11:20:14 1 Q. (BY MR. GORMAN) -- the positioning of some weapons in the 11:20:19 2 master bedroom, or the southwest bedroom. Can you -- does 11:20:22 3 this diagram show where those weapons were ultimately found? 11:20:27 4 A. Yes, it does. 11:20:32 5 Q. Would you please with the pointer show the ladies and 11:20:35 6 gentlemen on page 114 of Exhibit 243 where the weapons were 11:20:39 7 found and then identify each weapon, if you would. 11:20:43 8 A. This drawing right here on the corner of the bed is 11:20:49 9 representative of the .22 caliber revolver that was located 11:20:54 10 and recovered from the bedroom. 11:20:57 11 And then it is kind of dark, but right here in this 11:21:00 12 area there's the outline drawn of the .357 magnum pistol and 11:21:08 13 its location. 11:21:08 14 Q. Was -- can you show me where the foot of the bed is and 11:21:14 15 what the head of the bed is in the drawing? 11:21:17 16 A. This is the head of the bed. The pillows are drawn in and 11:21:21 17 so this would be the head of the bed up against the wall. 11:21:24 18 This is the foot of the bed and this gun is lying on the bed, 11:21:29 19 the .22 caliber pistol, right near the foot of the bed. And 11:21:34 20 this gun is lying on the floor, the carpeted floor next to 11:21:38 21 Don Schell. 11:21:39 22 Q. Now, you told the ladies and gentlemen of the jury a 11:21:41 23 minute ago that you believed both guns were located 11:21:45 24 originally in the southwest bedroom, true? 11:21:48 25 A. Yes, sir. 1305 11:21:49 1 Q. Can you tell the ladies and gentlemen of the jury what it 11:21:52 2 is about the crime scene that causes you to reach that 11:21:54 3 conclusion? 11:21:56 4 A. The dresser that's located next to this side of the bed, 11:22:04 5 which would be the north side of the bed, had its drawers 11:22:08 6 pulled open and on the bed right in this location there were 11:22:16 7 actually the holsters for those guns, much as if they had 11:22:21 8 been removed from the drawer and taken out of the holster at 11:22:24 9 that point. 11:22:28 10 Q. Did you find any evidence that would indicate that 11:22:30 11 Mr. Schell during or after the commission of any part of 11:22:38 12 these crimes left the bedroom? 11:22:42 13 A. No, sir. 11:22:45 14 Q. Now, you told the ladies and gentlemen of the jury that -- 11:22:49 15 I think you said six shells had been shot from the .22 11:22:59 16 caliber pistol? 11:23:00 17 A. Yes, sir. 11:23:00 18 Q. And four shells were expended from the .357 magnum? 11:23:05 19 A. Yes, sir. 11:23:06 20 Q. Using that information, were you able to make a 11:23:08 21 determination as to which weapon was used first in the 11:23:13 22 commission of these crimes? 11:23:15 23 A. The .22 caliber pistol. 11:23:18 24 Q. And how were you able to determine that? 11:23:20 25 A. Because the injuries to the victims -- there were actually 1306 11:23:30 1 ten rounds of ammunition fired in this room. There are 11:23:34 2 actually, according to the autopsy reports, 12 bullet wounds. 11:23:43 3 And some of those wounds are through-and-through wounds; in 11:23:50 4 other words, they went through the first part of the person 11:23:57 5 that they struck, completely through it, and were not 11:24:03 6 recovered from that particular wound. 11:24:05 7 Q. So a bullet made more than one wound? 11:24:13 8 A. Yes. 11:24:13 9 Q. You had ten shells, ten rounds fired in the room. Were 11:24:18 10 you able during the course of your investigation to account 11:24:21 11 for all of those bullets? 11:24:25 12 A. Yes, we were. 11:24:33 13 Q. In the drawing, the exhibit, you also have drawn in there 11:24:41 14 locations of the victims, do you not? 11:24:43 15 A. Yes, sir. 11:24:44 16 Q. Would you please point with the pointer and tell the 11:24:47 17 ladies and gentlemen of the jury what the drawing indicates 11:24:52 18 in terms of the locations of the victims? 11:24:57 19 A. As you first come to the doorway, the first victim closest 11:25:01 20 to the doorway is Don Schell, and Don Schell is lying on his 11:25:09 21 back, face up, at the foot of the bed. His feet are here and 11:25:14 22 his head is up here. His left arm is outstretched and there 11:25:21 23 is a -- the .357 pistol lying right here. 11:25:29 24 Immediately south of him in the bedroom is the body 11:25:34 25 of Deb Tobin. Deb's feet are down here. Her head is up in a 1307 11:25:42 1 corner formed by the bureau and this is a closet here that 11:25:48 2 has sliding mirror doors and her head is right in that 11:25:53 3 corner. 11:25:54 4 Q. Were the mirrors on -- when you got to the crime scene 11:25:57 5 were the doors to those closets, those mirrored doors closed? 11:26:03 6 A. Yes. 11:26:04 7 Q. Were either -- were any of the mirrored glass broken on 11:26:09 8 those mirrors? 11:26:11 9 A. No. 11:26:11 10 Q. Go ahead with your description of the locations. 11:26:14 11 A. Then this is the infant that was found in the bedroom, 11:26:21 12 Alyssa, and she was lying -- this is her feet and her head is 11:26:27 13 right up here at the foot of the bed and she was lying on her 11:26:32 14 back face up. 11:26:35 15 Q. Let me stop you right there. Is there some significance 11:26:40 16 to you of where Mrs. Tobin was found at the crime scene in 11:26:47 17 relation to where Alyssa was found? 11:26:49 18 MR. FITZGERALD: Excuse me, Your Honor. This is part 11:26:51 19 of the evaluation of the crime scene and I understand we're 11:26:54 20 bringing out the facts and what was found, so I object. 11:27:00 21 THE COURT: I don't think I understood your 11:27:02 22 objection, Mr. Fitzgerald. 11:27:04 23 MR. FITZGERALD: Yes, we understood that the rule was 11:27:10 24 to be a discussion of the facts and who was found and where 11:27:12 25 but not an evaluation of significance of one body in relation 1308 11:27:16 1 to the other. That would be part of evaluating the crime 11:27:19 2 scene. 11:27:19 3 THE COURT: Well, I think that -- I think it is 11:27:26 4 appropriate testimony as to whats. The officer is describing 11:27:30 5 what he found and what conclusions he arrived at from that. 11:27:34 6 We're not going to get into the whys. Overruled. 11:27:37 7 MR. GORMAN: No, I'm just asking him -- overruled? 11:27:41 8 I'm sorry, Judge. 11:27:43 9 Q. (BY MR. GORMAN) Is there any significance to you in terms 11:27:45 10 of your investigation where Deb Tobin was found and Alyssa 11:27:52 11 Tobin was found in relation to one another? 11:27:55 12 A. Yes, there was. 11:27:56 13 Q. And what is that significance? 11:27:58 14 A. That from the position that Mrs. Tobin was found it would 11:28:05 15 indicate that she was standing right in this area and holding 11:28:11 16 the child. 11:28:15 17 Q. At the time she and the baby were shot? 11:28:18 18 A. Yes. 11:28:21 19 Q. What significance, if any, to your investigation is it 11:28:25 20 that this crime scene in the Schell residence was located in 11:28:33 21 one single room, that being the master bedroom? 11:28:44 22 A. That due to the fact that everybody in the room was 11:28:49 23 dressed for bed, nobody was dressed to go outside -- Don 11:28:57 24 Schell had on pajamas, Deb Tobin had on a T-shirt and 11:29:03 25 panties, the baby had on bed clothing and Rita Schell also 1309 11:29:10 1 appeared to be ready for bed -- is that some event occurred 11:29:19 2 in this bedroom to bring Deb Tobin and the baby into the 11:29:22 3 bedroom. 11:29:26 4 Q. Now, point out for the ladies and gentlemen of the jury 11:29:29 5 again the location of Mrs. Schell. 11:29:32 6 A. Rita Schell is located on the south side of the master bed 11:29:40 7 between the bed and the wall, and her head is actually lying 11:29:47 8 up and contacting this portion of the wall and this portion 11:29:51 9 of the dresser. And she's laying face down and I believe 11:29:59 10 this depicts her arm right here, kind of as if she had fallen 11:30:04 11 into that corner. 11:30:07 12 Q. Was there a telephone found in the area of Mrs. Schell's 11:30:13 13 body? 11:30:14 14 A. Yes, there was. 11:30:15 15 Q. Tell the ladies and gentlemen of the jury about that 11:30:17 16 telephone and where it was found. 11:30:21 17 A. The telephone was found right in this area right on the 11:30:25 18 floor next to the bed and the bedcovers go down, I believe, 11:30:33 19 to the floor and the phone is lying right there next to her. 11:30:37 20 Q. Was the receiver off of the phone? 11:30:47 21 A. I believe this was actually like a cordless phone and I 11:30:51 22 would have to review some photographs, but it was just lying 11:30:56 23 there next to the general area where her hand was. 11:31:00 24 Q. Now, based upon your analysis of this scene do you 11:31:06 25 understand what I mean when I say a static crime scene? 1310 11:31:10 1 A. Yes. 11:31:10 2 Q. Tell the ladies and gentlemen of the jury -- and I'm right 11:31:14 3 in your way here -- what a static crime scene is. 11:31:19 4 A. It is much like a static display. It is not a lot of 11:31:27 5 movement in the crime scene, not necessarily an 11:31:34 6 action-oriented type of crime scene where people are moving 11:31:38 7 and perhaps distressed and trying to get out of the scene or 11:31:46 8 get out of a particular location or room or out of somebody's 11:31:50 9 way. 11:31:51 10 Q. Was this a static crime scene based upon your analysis? 11:31:58 11 A. It appears from the number of shots fired and the location 11:32:02 12 of the bodies as well as the fact of two separate guns were 11:32:08 13 used that there was -- that it was not static, that there was 11:32:15 14 movement going on in this room at the time this event 11:32:18 15 occurred. 11:32:21 16 Q. Now, in general terms -- you mentioned autopsy reports. 11:32:30 17 In general terms what kind of information is gathered from 11:32:32 18 autopsy reports that assists investigators like yourself in 11:32:36 19 analyzing crimes like this? 11:32:39 20 A. Autopsy reports consist of information about the cause of 11:32:44 21 death, the different injuries to a body. In this particular 11:32:54 22 case, specific information about entry wounds and exit wounds 11:33:01 23 and whether or not a wound is a -- was the result of a shot 11:33:10 24 fired from a distance or whether or not it was a contact 11:33:16 25 wound where someone would walk up and, for instance, take the 1311 11:33:21 1 muzzle of the barrel of a weapon and place it right up to the 11:33:26 2 person that was going to be shot. 11:33:34 3 There's also medical examinations conducted during an 11:33:40 4 autopsy looking for different things that one might find in a 11:33:49 5 deceased person, for instance, whether or not they had a 11:33:52 6 heart attack, whether or not there were old injuries or 11:34:01 7 whether or not the particular wound that is obvious to the 11:34:07 8 eye is the cause of death. 11:34:12 9 Q. Those reports were done in this case? 11:34:14 10 A. Yes, they were. 11:34:15 11 Q. And you have reviewed those reports? 11:34:16 12 A. Yes, I have. 11:34:17 13 Q. Do those reports, the autopsy reports, also include 11:34:24 14 analyses of whether or not there were drugs or other 11:34:29 15 substances in a person's body? 11:34:31 16 A. Yes, they would. 11:34:33 17 Q. Were toxicology tests done in this case? 11:34:37 18 A. Yes, they were. 11:34:46 19 Q. And specifically were toxicology tests done with respect 11:34:49 20 to Mr. Schell? 11:34:50 21 A. Yes, they were. 11:34:52 22 Q. I'm going to show you -- 11:34:57 23 MR. GORMAN: It is page 1169 of Joint Exhibit 226, 11:35:12 24 Judge. 11:35:12 25 Q. (BY MR. GORMAN) And I just want you to take a look at 1312 11:35:14 1 this document and tell me whether or not this document 11:35:18 2 relates to this case. 11:35:33 3 MR. GORMAN: Boy, this is out of focus, Misha. And 11:35:36 4 we're going to get some technical help here. 11:35:53 5 Q. (BY MR. GORMAN) Can you read that? 11:35:53 6 A. Yes. 11:35:54 7 Q. The report shows 13 NG/ML of paroxetine, or Paxil. Do you 11:36:03 8 see that? 11:36:04 9 A. Yes, I do. 11:36:05 10 Q. These tests are conducted by someone other than you, true? 11:36:08 11 A. Yes, sir. 11:36:16 12 Q. The only question I have, is 13 -- do you know what the NG 11:36:20 13 stands for? 11:36:21 14 A. I believe it is nanograms. 11:36:23 15 Q. And the ML stands for? 11:36:25 16 A. Milliliters. 11:36:27 17 Q. Milliliters? Is 13 nanograms per milliliter a trace 11:36:34 18 amount of paroxetine, if you know? 11:36:36 19 MR. FITZGERALD: Excuse me. He's not been offered as 11:36:38 20 an expert on whether something is a trace amount or not. The 11:36:42 21 document speaks for itself. It shows this number of 11:36:44 22 nanograms per milliliter. 11:36:46 23 THE COURT: I think he can answer the question as a 11:36:48 24 law enforcement officer and on that basis only, if he has the 11:36:52 25 knowledge. 1313 11:36:53 1 Q. (BY MR. GORMAN) If you know. 11:36:54 2 A. Based on this report and conversations I've had with the 11:36:57 3 State Crime Lab, it would be a very small amount. I don't 11:37:05 4 know that trace is the word that was used to describe it to 5 me. 11:37:10 6 Q. Very small was used to describe it to you? 11:37:12 7 A. Yes. 11:37:21 8 Q. During the course of your investigation -- strike that. 11:37:23 9 Let me back up. 11:37:24 10 You mentioned to the ladies and gentlemen of the jury 11:37:26 11 that given the number of bullets that were retrieved from the 11:37:32 12 scene and based upon the number of wounds inflicted by those 11:37:38 13 bullets, we had one or more bullets that created one or more 11:37:42 14 wounds, true? 11:37:44 15 A. That's correct. 11:37:45 16 Q. Were you able to determine if a bullet -- strike that. 11:37:51 17 Did Mrs. Schell have a grazing-type wound to any part 11:37:58 18 of her body? 11:37:59 19 A. Yes, she did. 11:38:00 20 Q. Where was the graze wound located? 11:38:04 21 A. To her arm. 11:38:07 22 Q. Do you remember which arm? 11:38:18 23 A. I can check the report. I believe it was the left arm. 11:38:21 24 Q. And that's fine. A grazing wound was on one of 11:38:25 25 Mrs. Schell's arms? 1314 11:38:26 1 A. Yes. 11:38:27 2 Q. Were you able to determine whether or not that grazing 11:38:29 3 wound came from the .22 caliber weapon? 11:38:32 4 A. Yes. 11:38:33 5 Q. It did? 11:38:33 6 A. Yes. 11:38:35 7 Q. Were you able to determine if that bullet that grazed 11:38:39 8 Mrs. Schell then hit Mrs. Tobin and the baby? 11:38:59 9 A. It would be more likely that the shot that was fired that 11:39:04 10 struck Mrs. Schell's arm would have also been the same shot 11:39:12 11 resulting in the chest wound, but there are a number of 11:39:21 12 things that we just don't know. 11:39:23 13 Q. Okay. Now, based upon, then, your analysis of the scene, 11:39:34 14 were you able to determine, and I think you've already told 11:39:37 15 us this, that this crime was not committed by someone outside 11:39:43 16 that room that night, true? 11:39:46 17 A. That's what our investigation tells us. 11:39:49 18 Q. Were you able to conclude that the crime was committed by 11:39:54 19 Don Schell? 11:39:55 20 A. Yes. 11:39:58 21 Q. And you reached that conclusion why? 11:40:03 22 MR. FITZGERALD: Excuse me. This question really 11:40:05 23 ought to be more precise, Your Honor. 11:40:08 24 THE COURT: You want to know how he came to that, not 11:40:11 25 why. 1315 11:40:11 1 MR. GORMAN: That's a better question. 11:40:13 2 Q. (BY MR. GORMAN) How did you come to that conclusion? 11:40:15 3 A. By examination of the crime scene, there's no evidence to 11:40:17 4 indicate that anyone left that room and that the people 11:40:24 5 involved or the person who perpetrated the killing was still 11:40:30 6 in the room because there's no trace evidence other than 11:40:36 7 there is one spot just at the doorway on the carpet that 11:40:43 8 appeared to be blood, but there was no other trace evidence 11:40:46 9 going out down the hall or down the stairs. 11:40:49 10 Additionally, all of the victims in the room with the 11:40:57 11 exception of Don Schell received multiple gunshot wounds, and 11:41:02 12 the multiple gunshot wounds that the other three victims 11:41:09 13 received -- Deb Tobin, Alyssa Tobin and Rita Schell -- 11:41:13 14 consisted of two different calibers indicating that at one 11:41:18 15 point the .22 caliber pistol was being used and then the .357 11:41:24 16 magnum was used to inflict contact wounds upon the victims. 11:41:29 17 Don Schell had one wound, contact wound, to his head 11:41:39 18 which would indicate since the other individuals had .22 11:41:47 19 caliber wounds, that he was the only person in the room with 11:41:53 20 one gunshot wound which would be consistent with a suicide. 11:41:59 21 Q. Okay. At that point, then, do you -- 11:42:06 22 A. Excuse me. 11:42:07 23 Q. Go ahead. 11:42:08 24 A. The other thing I wanted to mention to you, the .22 11:42:12 25 caliber wounds that the other parties received, particularly 1316 11:42:15 1 Rita and Deb, were not contact wounds which would mean that 11:42:19 2 they were shot or fired from a short distance and that would 11:42:29 3 indicate that since they weren't contact wounds, those were 11:42:40 4 probably the first wounds fired -- the first shots fired in 11:42:40 5 that room. 11:42:41 6 Q. Okay. Before you've made the decision that the 11:42:45 7 perpetrator is in the room and that Mr. Schell has committed 11:42:50 8 suicide, does your investigation cease? 11:42:54 9 A. No. 11:42:55 10 Q. Do you start to gather information about Mr. Schell at 11:42:59 11 that point? 11:43:00 12 A. Yes, we do. 11:43:00 13 Q. And why do you do that? 11:43:07 14 A. For several reasons. One is to determine and to locate 11:43:12 15 additional information that might give us an idea as to why 11:43:15 16 this event occurred, and that's part of the follow-up 11:43:23 17 investigation, is to corroborate or to bolster the other 11:43:30 18 pieces of evidence that we have uncovered in our 11:43:33 19 investigation, basically to prove up our theory. 11:43:40 20 Q. And in order to do that, you talked to people who knew 11:43:43 21 Mr. Schell? 11:43:44 22 A. Yes, we did. 11:43:47 23 Q. And you mentioned earlier that the first person, I think, 11:43:50 24 that you interviewed about Mr. Schell would have been Tim 11:43:54 25 Tobin, true? 1317 11:43:55 1 A. Yes. 11:43:57 2 Q. I'm going to show you -- 11:43:59 3 MR. GORMAN: Again, Judge, these are all part of 11:44:01 4 Joint Exhibit 243. 11:44:03 5 Q. (BY MR. GORMAN) I'm going to show you page 55 to that 11:44:06 6 exhibit, just the first page, and I'm going to ask you -- let 11:44:09 7 me get it on here. I'm going to ask you if by looking at 11:44:17 8 that document you can tell us who prepared this report and 11:44:21 9 whether or not this was the information about Officer Wenz's 11:44:28 10 welfare check and the first contact that night about this 11:44:32 11 case? 11:44:33 12 A. Yes, this is -- I can tell you this is Officer Mike Wenz's 11:44:45 13 report. This would be the first initiating report because 11:44:47 14 188 is -- this 188 is Mike Wenz's badge number, followed by 11:45:00 15 GEN which stands for general report which is also the 11:45:05 16 initiating report in an investigation, and the date, 2/1/98, 11:45:12 17 and his narrative begins February 13, 1998 at 7:20 p.m. which 11:45:20 18 was the logged time of that call. 11:45:29 19 Q. There's a couple areas of this report that I want to focus 11:45:32 20 on. This will be page 56 of that same -- the next page for 11:45:37 21 that same exhibit and I've highlighted a portion at the 11:45:41 22 bottom of the page here. 11:45:48 23 It says, "When we walked upstairs to the west side of 11:45:52 24 the house all the lights were off except for the southwest 11:45:55 25 bedroom." Is that piece of information significant to you in 1318 11:45:59 1 evaluating this crime? 11:46:01 2 A. Yes, it is. 11:46:02 3 Q. And what is the significance of that information? 11:46:09 4 A. It is significant because it tells us the room in which 11:46:11 5 the homicides and the suicide occurred was the only lighted 11:46:16 6 room on that level of the house, and that it was probably 11:46:21 7 dark outside and that would help us make a determination on 11:46:31 8 time of -- the time that this event occurred as being a 11:46:41 9 nighttime crime. 11:46:42 10 Q. Is it also significant for the fact that if, in fact, 11:46:48 11 people were sleeping in the beds you've identified prior to 11:46:50 12 this and something brought Deb and the baby into that room, 11:46:55 13 obviously somebody turned on the lights prior to the 11:46:58 14 commission of these crimes, true? 11:47:00 15 A. Yes. 11:47:12 16 Q. I am going to page 57 of that same report. Does this tell 11:47:15 17 us when you arrived, Detective Rozier, at the scene? 11:47:19 18 A. Yes, it does. 11:47:20 19 Q. And you arrived at 7:38 p.m.? 11:47:23 20 A. Yes. 11:47:24 21 Q. Now, does this report, then, also give us information from 11:47:27 22 the first person to be interviewed about this crime, that 11:47:31 23 being Mr. Tobin, about Don Schell's mental condition at the 11:47:41 24 time he committed these crimes? 11:47:43 25 A. Yes, it does. 1319 11:47:45 1 Q. And I put page 58 of that report on the screen and I've 11:47:55 2 highlighted information there, but would you just read the 11:47:59 3 paragraph that starts, "Timothy worked at WSC Telemax..."? 11:48:05 4 Would you read that to the ladies and gentlemen of the jury? 11:48:08 5 A. Yes. "Timothy worked at WSC Telemax on Thursday, February 11:48:13 6 12th, 1998 between 8:00 a.m. and 5:00 p.m. On the evening of 11:48:18 7 Thursday, February 12th, 1998, at approximately 8:00 p.m., 11:48:23 8 Timothy spoke to Deborah by phone and made plans for Timothy 11:48:28 9 to drive to Gillette on the evening of February 13th, 1998 11:48:32 10 and spend the weekend at Deborah's parents' house. 11:48:37 11 "Deb told Timothy that Donald had been treated by a 11:48:40 12 doctor in Gillette for depression on Tuesday, February 10th, 11:48:45 13 1998. Deborah told Timothy that Donald was having a rough 11:48:50 14 time because of the death of his brother. Timothy knew 11:48:53 15 through prior contacts with the family that Donald had 11:48:56 16 suffered several bouts of depression in the past because he 11:48:58 17 had a brother die, Leonard Schell, Gillette, Wyoming, five 11:49:03 18 years ago of a heart attack and another brother die 11:49:06 19 approximately one year ago, Roger Schell, Red Butte, North 11:49:13 20 Dakota who died of leukemia. Timothy was unconcerned about 11:49:20 21 the depression and thought Donald loved Alyssa very much. 11:49:20 22 "Timothy thought Dr. Rasul may be Donald's physician 11:49:24 23 as the family used Dr. Rasul in the past. Deborah told 11:49:29 24 Timothy she would call him in Billings on February 13th, 1998 11:49:33 25 at approximately 7:30 a.m. and their conversation ended." 1320 11:49:38 1 Q. Okay. Now, my question, is this information that was 11:49:43 2 provided by Timothy Tobin as the first witness or the first 11:49:50 3 provider of information about this matter? Was this your 11:49:56 4 first indication that Donald Schell at the time he committed 11:50:00 5 these crimes was having some mental illness problems? 11:50:04 6 A. Yes, it was. 11:50:05 7 Q. Was that significant to you? 11:50:08 8 A. Yes, it was. 11:50:10 9 Q. And tell the ladies and gentlemen of the jury why a 11:50:14 10 finding like that would be significant. 11:50:16 11 MR. FITZGERALD: Well, I think we're at that same 11:50:19 12 point we were. The Court came up with the how question 11:50:23 13 earlier, how did he do this and how did he conclude that, but 11:50:28 14 the why question is objectionable. 11:50:30 15 THE COURT: I tend to agree, Mr. Gorman. 11:50:33 16 Q. (BY MR. GORMAN) How is this information significant to 11:50:39 17 you? 11:50:39 18 THE COURT: I don't know, you might be going to the 11:50:40 19 same area. He can tell what he learned. 11:50:47 20 Q. (BY MR. GORMAN) You learned that Don Schell had 11:50:49 21 depression at the time he committed these crimes? 11:50:53 22 A. Yes, sir. 11:50:59 23 Q. As an investigator is information like that important to 11:51:03 24 you as you analyze the facts and circumstances surrounding a 11:51:07 25 situation like this? 1321 11:51:09 1 A. Yes, it is. 11:51:11 2 Q. And do you then follow up -- make efforts to follow up on 11:51:15 3 information like that, and if so, how? 11:51:18 4 A. Yes, we do. In a homicide one of the issues that you 11:51:27 5 always try to uncover is the issue of motive or why someone 11:51:30 6 would commit a crime and, in this particular case, with 11:51:36 7 this -- when this information came to light, we followed up 11:51:39 8 on that to see if there was other information out there of a 11:51:45 9 like kind that would indicate and corroborate this 11:51:50 10 information to be correct. 11:51:54 11 Q. And did you do that? 11:51:57 12 A. Yes, we did. 11:51:59 13 Q. Was Mr. Tobin interviewed a second time that evening? 11:52:07 14 A. Yes, he was. 11:52:07 15 Q. And was more information gathered from Mr. Tobin on that 11:52:11 16 occasion about Mr. Schell's mental state, if you know? 11:52:17 17 A. Yes, it was. 11:52:19 18 Q. I'm going to show you another part of the Joint 11:52:23 19 Exhibit 243. 11:52:33 20 MR. GORMAN: Your Honor, this will be page 30, first 11:52:36 21 of all, of that exhibit. 11:52:40 22 Q. (BY MR. GORMAN) And I want you to first of all look at 11:52:44 23 the material I've highlighted there that says 230 SUP. Does 11:52:52 24 that tell us who the officer was involved in this aspect of 11:52:55 25 the investigation and who prepared this report? 1322 11:52:57 1 A. Yes, it does. 11:52:58 2 Q. Who is Officer 230? 11:53:00 3 A. That's Officer Kent Clark, and this indicates that this is 11:53:05 4 a supplemental report, a supplement to the general report. 11:53:09 5 And it is dated 3/9/98 and said the supplemental report was 11:53:21 6 originally typed on 2/19/98. 11:53:24 7 Q. But some records were deleted and he retyped it? 11:53:37 8 A. Yes. 11:53:38 9 MR. GORMAN: I'm looking at page 30 of that same 11:53:42 10 exhibit, Judge. 11:53:48 11 Q. (BY MR. GORMAN) Does this part of the report tell us now 11:53:58 12 about the medication that you've told the ladies and 11:54:01 13 gentlemen of the jury about that was removed from the scene? 11:54:03 14 A. Yes, sir. 11:54:04 15 Q. It says nine containers of pills and medicine and one 11:54:07 16 container of prescription medicine? 11:54:09 17 A. Yes, sir. 11:54:18 18 Q. At the bottom of that page is the officer again 11:54:23 19 interviewing Mr. Tobin in relation to Mr. Schell's mental 11:54:31 20 health at the times these crimes were committed? 11:54:34 21 A. Yes, he was. 11:54:35 22 Q. And I've highlighted information there. Would you read 11:54:40 23 that to the ladies and gentlemen of the jury? 11:54:44 24 A. "He" -- and that indicates Tim Tobin -- "He told us he had 11:54:49 25 last talked to his wife at about 8:30 or 9:00 p.m. the night 1323 11:54:53 1 before, 2/12/98," would be the night. "They spoke for 11:55:00 2 approximately 15 to 20 minutes. He said things were fine 11:55:05 3 with her. He told us her dad had been depressed about his 11:55:41 4 brother and had gone to the doctor in the last week to get 11:55:44 5 medication, Timothy thought from Dr. Rasul. Timothy related 11:55:17 6 that Don was reluctant to see anyone but his family doctor 11:55:20 7 about his depression." 11:55:23 8 Q. Now, is that information, again, further information that 11:55:25 9 is important to you as you analyze Mr. Schell's state of mind 11:55:33 10 or mental health issues at the time of this accident? 11:55:37 11 A. Yes, it is. 11:55:50 12 Q. Page 32 of the same report, I have indicated or I've 11:55:52 13 highlighted material on there that says -- strike that. 11:55:59 14 Does this give you some information as to why now 11:56:05 15 Alyssa and Deb Tobin were in Gillette or one of the reasons 11:56:11 16 why Deb Tobin and Alyssa were in Gillette at the time these 11:56:17 17 shootings took place? 11:56:23 18 A. Yes, it does. 11:56:23 19 Q. And the information from that report that tells you that, 11:56:23 20 is that highlighted at the bottom of that paragraph that I'm 11:56:29 21 pointing to right here? 11:56:31 22 A. Yes, it is. 11:56:32 23 Q. What is your understanding based upon this report as to 11:56:34 24 why Deb and Alyssa Tobin were at the Schell residence that 11:56:38 25 night? 1324 11:56:42 1 A. That Deb and the baby Alyssa were at the residence to 11:56:46 2 cheer up Deb's father who was having a bout with depression 11:56:54 3 or was feeling down. 11:56:57 4 Q. Now, you've got additional information that Mr. Tobin then 11:57:00 5 provides about Don Schell's state of mind at the time of 11:57:06 6 these shootings, true? 11:57:08 7 A. Yes. 11:57:08 8 Q. And Mr. Tobin at that time told you that when he and his 11:57:11 9 wife had talked the night before, being 2/12/98, that 11:57:17 10 Mr. Schell was still not doing well? Is that what Mr. Tobin 11:57:24 11 told you on this occasion? 11:57:25 12 A. That's what he told the investigator, yes. 11:57:32 13 Q. He was also told that Mr. Tobin at this time was asked who 11:57:37 14 he might suspect would harm his family and Mr. Tobin said he 11:57:41 15 told us that he would not suspect anyone. He then said, "The 11:57:46 16 only thing I could think is that Don..." 11:57:54 17 Now, the report says he did not finish that 11:57:58 18 statement. Do you know whether or not he ever finished that 11:58:00 19 statement? 11:58:01 20 A. I don't believe he did. 11:58:03 21 Q. Did you ever talk to Tim Tobin yourself about what he 11:58:05 22 meant by that? 11:58:07 23 A. I did not. 11:58:08 24 Q. He then goes on and says, "I don't think that he would do 11:58:15 25 it, but..." 1325 11:58:20 1 The information that's in quotes on this report, when 11:58:25 2 your officers do that, do they, in fact, set forth verbatim 11:58:30 3 the words that the person is telling them? 11:58:35 4 A. In a case like this if a specific statement was a crucial 11:58:52 5 statement, they would make every effort to put it in the 11:58:56 6 report just as accurately as they could. 11:59:03 7 Q. Do you know who Kevin Nelson is? 11:59:05 8 A. Yes, sir. 11:59:06 9 Q. Who is Kevin Nelson? 11:59:08 10 A. A person that works with Don Schell. 11:59:10 11 Q. And in an effort to understand Mr. Schell's mental health 11:59:16 12 at the time of these events did you have officers interview a 11:59:21 13 Kevin Nelson? 11:59:22 14 A. Yes, sir. 11:59:25 15 MR. GORMAN: Judge, this is from page 34 of that same 11:59:27 16 report. 11:59:34 17 Q. (BY MR. GORMAN) And I would ask you if that is the 11:59:37 18 summary of the Kevin Nelson interview that was undertaken by 11:59:42 19 your officers? 11:59:44 20 A. Yes, it is. 11:59:45 21 Q. Can you read the -- I've highlighted some information on 11:59:50 22 that particular part of the report. Could you read the 11:59:55 23 information on there that was significant to you in your 11:59:58 24 investigation and then explain to the jury what significance 12:00:03 25 it was. 1326 12:00:05 1 A. The investigator writes that, "I arrived at 1900 hours and 12:00:13 2 spoke with Kevin Nelson in the detective division interview 12:00:16 3 room. Kevin told me he had been acquainted with Don since 12:00:19 4 about 1982. He said approximately four years ago he had 12:00:23 5 covered or taken care of Don's wells for him when Don had a 12:00:28 6 nervous breakdown. Kevin said Don had called him Tuesday 12:00:33 7 evening, 2/10 of '98" -- 12:00:36 8 Q. Let me stop you right there and ask you a question. Based 12:00:39 9 upon your investigation into this accident is it your 12:00:43 10 understanding now that this interview with Kevin Nelson 12:00:46 11 occurred before Mr. Schell went to see Dr. Patel, if you 12:00:59 12 know, if you recall? 12:01:06 13 A. That I don't know. 12:01:07 14 Q. Let me tell you that the evidence in the case so far 12:01:10 15 indicates that Mr. and Mrs. Schell went to see Dr. Patel the 12:01:15 16 afternoon of Wednesday the 11th, okay. 12:01:18 17 A. That would mean that this conversation that he's relaying 12:01:23 18 took place the day before. 12:01:25 19 Q. Okay. Go ahead then with what was significant to you 12:01:28 20 about what Mr. Nelson told you. 12:01:31 21 A. "Tuesday evening, 2/10 of '98. Don needed him to pump for 12:01:36 22 him as soon as possible. Kevin said he went by Don's house 12:01:39 23 at about 6:12 p.m. to pick up the books for the oil wells. 12:01:43 24 He said he noticed when he pulled up to the house that hardly 12:01:47 25 any lights were on. He said he rang the doorbell and the 1327 12:01:50 1 garage door opened. He thought that the house sounded really 12:01:54 2 quiet. 12:01:55 3 "Kevin said Don had the books with him in the garage 12:01:59 4 and that Don looked really pale and had the shakes. Kevin 12:02:03 5 said Don told him he was feeling really bad and feeling down. 12:02:11 6 "Don told Kevin earlier that day he felt he would 12:02:18 7 have to call his wife and have her come out to drive him back 12:02:22 8 into town from where he was working in the oil field. Kevin 12:02:26 9 also said that Don made the comment that maybe he would give 12:02:30 10 Kevin these wells to work and that Don would come to work for 12:02:33 11 the company that Kevin works for, which is Jordan Production, 12:02:38 12 Incorporated." 12:02:44 13 Q. You see the next few lines down where it says, "Kevin said 12:02:44 14 while he was talking to Don, Don was talking about going to 12:02:48 15 the doctor on Wednesday"? 12:02:50 16 A. Yes, I do. 12:02:51 17 Q. How is that important to you in your assessment of this 12:02:53 18 crime? 12:02:54 19 A. It is important because it again confirms the statements 12:02:56 20 that Tim Tobin had told us during our initial few contacts 12:03:00 21 with him that there was something going on in Don Schell's 12:03:04 22 life and that he had complained to others about feeling down 12:03:13 23 and feeling bad. 12:03:17 24 Q. Do you know a person by the name of Nita Rienits? 12:03:22 25 A. Yes, I do. 1328 12:03:23 1 Q. And Mrs. Rienits has testified in this case. She was also 12:03:26 2 interviewed that night; isn't that true? 12:03:29 3 A. Yes. 12:03:37 4 MR. GORMAN: Page 36, Your Honor, of the same report. 12:03:40 5 We did that with Mrs. Rienits when she was here. It is in 12:03:44 6 brackets. 12:03:54 7 Q. (BY MR. GORMAN) Is the information contained -- what 12:03:55 8 information in the interview of Mrs. Rienits did you learn 12:03:57 9 that was of significance to you? 12:04:02 10 A. She also had reported to us that she had had contact with 12:04:06 11 Don Schell and that Don -- during her contact Don Schell was 12:04:12 12 upset and this particular account in the reports relate the 12:04:21 13 information she gave to the officers. 12:04:23 14 Q. Again, this would be information if Don Schell went to the 12:04:26 15 doctor on Wednesday -- this would be information that was 12:04:28 16 given -- or this would be a contact that Mrs. Rienits had 12:04:35 17 with Mr. Schell prior to the time he went to the doctor, 12:04:38 18 true? 12:04:38 19 A. Yes. 12:04:46 20 Q. Is the fact that Don Schell was upset and, I think 12:04:49 21 Mrs. Rienits said in her testimony, angry of importance to 12:04:54 22 you? 12:04:54 23 A. Yes, it is. 12:04:58 24 Q. And how so? 12:04:58 25 A. It again corroborates information that Tim Tobin and by 1329 12:05:01 1 this time other people have supplied to us regarding Don 12:05:08 2 Schell's state of mind and his depression or his -- some 12:05:14 3 people describe it as feeling down and that these different 12:05:19 4 people that he's having contact with are all getting that 12:05:22 5 same impression or notion that something is wrong here. 12:05:30 6 MR. GORMAN: Your Honor, do you want to break here or 12:05:33 7 would you like me to continue? It doesn't matter. 12:05:36 8 THE COURT: If this is a good spot. I didn't know if 12:05:38 9 you were about to finish up. 12:05:39 10 MR. GORMAN: I have a little more left but it will 12:05:41 11 take me a little while and I don't want to hold the Court and 12:05:44 12 the jury up. 12:05:45 13 THE COURT: Let's do that. We will take our noon 12:05:47 14 recess and, ladies and gentlemen, please remember the usual 12:05:50 15 admonition. We will reconvene at 1:20 p.m. this day. 12:05:56 16 (Trial proceedings recessed 12:05 p.m. 12:06:00 17 and reconvened 1:20 p.m., May 30, 2001.) 13:22:59 18 THE COURT: Detective Rozier, remember you're still 13:22:59 19 under oath. 13:22:59 20 Mr. Gorman, you may proceed. 13:22:59 21 MR. GORMAN: Thank you, Your Honor. 13:22:59 22 Q. (BY MR. GORMAN) Officer Rozier, as part of your 13:22:59 23 investigation we've heard the name Vernon Brown mentioned in 13:22:59 24 the courtroom, and I understand you previously testified that 13:22:59 25 you know Mr. Brown? 1330 13:22:59 1 A. I know of him through this investigation. 13:22:59 2 Q. And who is Mr. Vernon Brown? 13:22:59 3 A. He's the neighbor of the Schells. 13:23:04 4 Q. And was he interviewed in connection with these events? 13:23:04 5 A. Yes, he was. 13:23:05 6 Q. And what did you learn from his interview? 13:23:11 7 A. That on the previous evening from the time the police were 13:23:18 8 initially called -- we were called on Friday evening. On 13:23:24 9 Thursday evening at about 9:15 p.m. he reported that he 13:23:28 10 observed a person arrive at the Schell residence who he 13:23:32 11 believed was Rita Schell, at about 9:15 p.m., as if she were 13:23:37 12 coming home from work. 13:23:39 13 Q. And, to your knowledge, is that, based upon your 13:23:43 14 investigation, the last time anybody saw Mrs. Schell? 13:23:48 15 A. Yes. 13:24:04 16 Q. Now, I also interviewed Mr. George Smith and Mrs. Bette 13:24:12 17 Smith, true? 13:24:13 18 A. Yes. 13:24:13 19 Q. And the reason why you interviewed Mr. and Mrs. Smith 13:24:15 20 again was for what purpose? 13:24:59 21 A. During the course of the investigation we were trying to 13:24:59 22 obtain all of the information that we could that might 13:24:59 23 explain why the homicides and the suicide occurred, to get 13:25:00 24 all the background information we could on the particular 13:25:00 25 situation we were investigating. 1331 13:25:00 1 Q. So was part of your investigation, part of your interview 13:25:00 2 with Mr. and Mrs. Smith, then -- did that involve also the 13:25:00 3 issues we were discussing before lunch, and that is 13:25:00 4 Mr. Schell's state of mind at the time that he committed 13:25:03 5 these crimes? 13:25:04 6 A. Yes. 13:25:12 7 MR. GORMAN: Judge, this is page 247 out of 13:25:16 8 Exhibit 243, and I've highlighted material. 13:25:19 9 Q. There, is that again information that you obtained from 13:25:23 10 Mr. and Mrs. Smith concerning Mr. Schell's mental state? 13:25:29 11 A. Yes, this is information that was brought out from the 13:25:32 12 interview of Bette Smith. 13:25:37 13 Q. Again, consistent with what you told us about the other 13:25:40 14 witnesses, that is, at the time Don Schell was suffering from 13:25:47 15 depression? 13:25:47 16 A. This particular interview included that Rita Schell had 13:25:50 17 told Bette Smith that Don was having problems dealing with 13:25:56 18 Rita's father passing away and that Don Schell had been 13:26:04 19 making negative comments about her father passing away. 13:26:07 20 Q. Again, why is information -- how is information like that 13:26:10 21 important to you? 13:26:17 22 A. Whenever you go to a scene and you investigate, once 13:26:19 23 again, we're trying to determine what factors or what motives 13:26:27 24 may have caused the homicides and the suicide because usually 13:26:32 25 people don't for no reason just get up and become involved in 1332 13:26:40 1 something like this, so we're looking for all the causal 13:26:45 2 factors. 13:26:46 3 Q. Mrs. Smith is also -- has also told your interviewer that, 13:26:50 4 "Rita Schell also indicated to Bette Smith that prior to this 13:26:54 5 Don appeared to have some type of mental or medical problems 13:26:59 6 as he could not get up and go to work in the morning. She 13:27:05 7 told Bette Smith he was in a state of depression. According 13:27:08 8 to Bette Smith, Rita made this comment that she didn't need 13:27:11 9 this anymore." 13:27:16 10 Is that then consistent with what you had been 13:27:19 11 uncovering after -- during your investigation after it was 13:27:23 12 determined by you that Mr. Schell had committed these crimes? 13:27:26 13 A. No, it was consistent with what other people had relayed 13:27:30 14 to us about Don and his state of depression and feeling down. 13:27:41 15 Q. On page 8 of this same exhibit, there's also information 13:27:44 16 here I think you've told the jury about findings that you 13:27:49 17 were able to make concerning why Deb Tobin and Alyssa Tobin 13:27:55 18 were in Gillette. 13:27:56 19 And was that confirmed to you by Mrs. Smith? 13:28:00 20 A. Mrs. Smith relayed that to the interviewing officers, and 13:28:04 21 what she told them was that Deborah Tobin was in Gillette to 13:29:08 22 help Don Schell cope with his -- with a particular bout of 13:29:08 23 depression that was going on with his life and Alyssa the 13:29:08 24 granddaughter was also present for that reason. 13:29:08 25 Q. One other interview I want to talk to you about. 1333 13:29:08 1 Mrs. Neva Hardy was also interviewed in connection with your 13:29:08 2 investigation? 13:29:08 3 A. Yes, she was. 13:29:08 4 Q. And you understand that Mrs. Hardy who is not here right 13:29:08 5 now was a sister of Rita Schell? 13:29:08 6 A. Yes, I do. 13:29:10 7 Q. And do you recall who the officer was that interviewed 13:29:12 8 Mrs. Schell? And I'm going to put page 70 of Exhibit 243 up 13:29:24 9 and it indicates a 228, Supp 2/18/98. Who is the officer 13:29:31 10 that completed this report? 13:29:33 11 MR. FITZGERALD: Excuse me. If you don't mind, 13:29:35 12 Mr. Gorman, I have no objection but there was a comment, 13:29:39 13 appropriately, that Neva Hardy is not present at this point 13:29:46 14 and she and Mr. Tobin left the room during the pendency of 13:29:47 15 this witness' testimony. 13:29:49 16 THE COURT: Thank you, Mr. Fitzgerald. 13:29:52 17 Q. (BY MR. GORMAN) Could you tell me who badge number 228 13:29:56 18 is? 13:29:57 19 A. That's Sully Wilde who is a police officer with the City 13:30:02 20 of Gillette as well and was at this time. 13:30:20 21 Q. Page 71 of that same report I believe is the interview 13:30:22 22 with Mrs. Hardy, and I've brought it to the top of the screen 13:30:30 23 right now. Can you tell the folks of the jury when this 13:30:36 24 interview was conducted? 13:30:38 25 A. It took place at 9:20 p.m., 2120 is the military time for 1334 13:30:45 1 9:20 p.m., on February 13th, 1998. And the particular 13:30:53 2 narrative you're looking at is a report authored by Sully 13:30:56 3 Wilde in reference to his and Agent Frosty Williams' 13:31:01 4 interview of Neva Hardy. 13:31:03 5 Q. And I'm going to go down to the interview summary but 13:31:13 6 before I get into this I want to ask you a question. 13:31:16 7 When officers do these interviews, are these -- 13:31:26 8 obviously these ultimately get typed up, but do they take 13:31:29 9 notes or how do they record the information that you see in 13:31:36 10 these reports? 13:31:36 11 A. Usually there are notes taken called field notes, and 13:31:42 12 those notes may not be necessarily verbatim what is said, but 13:31:52 13 they're notes that give the officer the ability to recollect 13:31:55 14 statements that people have made and information that's been 13:31:59 15 conveyed to them. 13:32:01 16 However, if it is a specific -- for instance, if it 13:32:05 17 is a quotation, usually it is noted verbatim and in quotes 13:32:09 18 and that will be added to the report. The notes are utilized 13:32:15 19 later, the field notes, to generate a finished, hard copy 13:32:18 20 report. 13:32:19 21 Q. Now, Mrs. Hardy testified to the ladies and gentlemen of 13:32:22 22 the jury that she didn't recall much, if anything, about this 13:32:28 23 interview. 13:32:30 24 My question to you is are you as the supervising 13:32:33 25 officer absolutely certain that this interview was conducted 1335 13:32:37 1 and that the summary that's on the screen right now is an 13:32:41 2 accurate recount of that interview? 13:32:45 3 A. Yes, I am. 13:32:52 4 Q. Would you read for the ladies and gentlemen of the jury 13:32:53 5 the material that we've highlighted from this particular 13:32:56 6 interview? 13:32:56 7 A. This is information received by the officers from Neva 13:32:59 8 Hardy. The officer asked her if she knew any of the medical 13:33:04 9 history with Don, and "She told me that she knew Don has had 13:33:09 10 bouts of what she described as depression in the past. She 13:33:15 11 believed the last time Don went through an episode of 13:33:18 12 depression was approximately a year ago and mentioned 13:33:20 13 something about the fact that Don had shaved his head at that 13:33:24 14 time and believed he was seen by a doctor and was on 13:33:28 15 medication for this occurrence. 13:33:30 16 "Neva then told me that approximately a week ago she 13:33:34 17 was speaking with Rita and Rita told her that Don was going 13:33:37 18 into a deep depression and Neva believed that Don again was 13:33:41 19 seen by his doctor and was prescribed medication for this 13:33:45 20 problem as recent as one to two weeks prior to this incident. 13:33:49 21 Neva believed that Don was either seeing Dr. Rasul or 13:33:53 22 Dr. Patel for the depression." 13:34:13 23 Q. Are you satisfied that Neva -- -- strike that -- that Rita 13:34:19 24 told Neva approximately a week before these deaths that Don 13:34:23 25 was going into a deep depression? 1336 13:34:24 1 A. I'm satisfied that's what Neva told Sully Wilde and Agent 13:34:29 2 Williams, that that's the information she relayed to them. 13:34:37 3 Q. Now, you -- as we know, Mrs. Schell worked at ERA 13:34:44 4 Boardwalk Real Estate office in Gillette? 13:34:50 5 A. Yes. 13:34:52 6 Q. Did you also interview folks from the ERA real estate 13:34:57 7 office where Mrs. Schell worked at the time of her death 13:35:00 8 about Mr. Schell? 13:35:03 9 A. They were interviewed in connection with this 13:35:05 10 investigation, yes. 13:35:06 11 Q. And what did you learn from those interviews? 13:35:12 12 A. Information received from them was that some of the people 13:35:21 13 there thought Don was very controlling and that Rita had -- 13:35:27 14 that Don imposed upon Rita a tight schedule or a specific 13:35:34 15 time and that she needed to be home, like right after work, 13:35:39 16 and that there were some problems in terms of Don's behavior 13:35:49 17 and depression. 13:35:53 18 Q. So the information you obtained from the folks at ERA was 13:35:56 19 consistent with the information now that you were obtaining 13:35:58 20 from other folks that you did interview? 13:36:01 21 A. Yes, it was. 13:36:06 22 Q. Now, if I kept track, we have the ERA interviews, we have 13:36:12 23 the multiple interviews of Mr. Tobin, we have interviews of 13:36:17 24 Ken -- Kevin Nelson, of George Smith, Bette Smith. Were all 13:36:27 25 of those interviews consistent, Officer Rozier, in 1337 13:36:38 1 establishing that Don Schell at the time of these events was 13:36:41 2 a sick person? 13:36:43 3 MR. FITZGERALD: This is pretty much in the 13:36:44 4 evaluation area, Your Honor. I mean, I have no objection to 13:36:47 5 him testifying what he said in these reports, but now we're 13:36:52 6 getting into an opinion here. 13:36:53 7 THE COURT: I think we're awfully close to that, 13:36:59 8 especially when the word "established" is used. I will 13:37:00 9 sustain the objection. 13:37:01 10 Q. (BY MR. GORMAN) What did you learn from all of these 13:37:03 11 interviews that was consistent in terms of your investigation 13:37:08 12 concerning Mr. Schell's mental history? 13:37:14 13 A. The people who were interviewed consistently provided us 13:37:22 14 with information that Don Schell was having a bout of 13:37:34 15 depression and that he was a depressed man at the time 13:37:38 16 surrounding the events that we investigated, the 13:37:41 17 homicides/suicide. 13:37:47 18 Q. We mentioned earlier before lunch the EMTs who came to the 13:37:58 19 scene and I believe you identified those folks as 13:38:01 20 Mr. Williams and Mr. Montoya. Do you see their names on -- 13:38:05 21 MR. GORMAN: Again, Judge, this a part of Joint 13:38:07 22 Exhibit 243 and this is page 57. 13:38:11 23 Q. (BY MR. GORMAN) Do you see their names there in the 13:38:13 24 report? 13:38:13 25 A. Yes, I do. 1338 13:38:14 1 Q. And at the bottom it says, "Attached are statements from 13:38:17 2 Williams and Montoya containing a rough sketch of the scene 13:38:21 3 and describing the position of the four bodies with their 13:38:24 4 injuries." Do you see that? 13:38:27 5 A. Yes, I do. 13:38:28 6 Q. And did they, in fact, the EMTs provide information to you 13:38:34 7 about -- that became a part of your investigation file? 13:38:37 8 A. Yes, they did. 13:38:47 9 MR. GORMAN: I'm going to show Joint Exhibit 239, 13:38:51 10 Judge, and I'm going to show the first page of this, first of 13:38:53 11 all. 13:38:55 12 Q. (BY MR. GORMAN) And I'll ask if you can identify this 13:39:02 13 document as one of the reports, then, that -- this document 13:39:13 14 was prepared by EMT Williams. Do you recognize this 13:39:16 15 document? 13:39:16 16 A. Yes, I do. 13:39:18 17 Q. And it says that the EMTs were called at 1926 hours, 13:39:24 18 right? 13:39:25 19 A. That's correct. 13:39:25 20 Q. Okay. Now, you also mentioned, I think, that you had -- 13:39:34 21 after the EMTs were done working or made the decision that 13:39:39 22 resuscitation efforts would not be of any benefit, you had 13:39:43 23 the EMTs or someone had the EMTs go to Mr. Brown's house to 13:39:50 24 assist with Mr. Tobin, true? 13:39:52 25 A. That's correct. 1339 13:39:57 1 Q. I am going to show you the second page of that exhibit 13:40:01 2 which is page 2 of Exhibit 239. And I've highlighted some 13:40:08 3 information in the middle there. Would you tell the ladies 13:40:14 4 and gentlemen of the jury who made that statement that we see 13:40:17 5 in the middle of the page that's highlighted? 13:40:20 6 A. The statement is authored by Tim Williams and the 13:40:24 7 statement, "I knew I shouldn't have let her stay with them," 13:40:28 8 was a statement that Tim Tobin made to Tim Williams. 13:40:42 9 Q. It is in quotes. Are you satisfied that that is exactly 13:40:44 10 what Tim Tobin told EMT Williams? 13:40:48 11 A. Yes, sir. 13:40:48 12 Q. Did you ever ask Mr. Tobin what he meant by that 13:40:51 13 statement? 13:40:53 14 A. I myself did not, no. 13:41:23 15 Q. Do you know if anybody did? 13:41:23 16 A. I'm not sure. 13:41:23 17 Q. Then in summary fashion, Officer Rozier, based upon your 13:41:23 18 investigation, you believe that Mr. Schell killed his wife, 13:41:30 19 his daughter and his granddaughter, true? 13:41:32 20 A. Yes. 13:41:36 21 Q. And that when Mr. Schell committed those crimes, he did so 13:41:41 22 while in a state of deep depression, true? 13:41:43 23 A. According to -- 13:41:45 24 MR. FITZGERALD: You know, Your Honor, this calls for 13:41:46 25 an opinion. He can report what was said and that's been 1340 13:41:49 1 done. He's now being asked for his opinion what kind of 13:41:53 2 depression he was in. 13:41:54 3 THE COURT: Sustained. 13:42:02 4 Q. (BY MR. GORMAN) The information you gathered surrounding 13:42:04 5 Mr. Schell's state of mind at the time he committed these 13:42:07 6 crimes was that he was in a state of deep depression, true? 13:42:11 7 A. Depression and deep depression were two descriptions. 13:42:16 8 Q. I'm sorry? 13:42:18 9 A. Were two descriptions used. 13:42:20 10 MR. GORMAN: I'm sorry. Could I have a minute, Your 13:42:22 11 Honor? 13:42:23 12 Thank you, Officer Rozier, I have nothing further at 13:42:26 13 this point. 13:42:27 14 THE COURT: You may cross-examine. 13:42:28 15 MR. FITZGERALD: Thank you, Your Honor. 16 CROSS-EXAMINATION 13:42:30 17 Q. (BY MR. FITZGERALD) Now, you know, Officer Rozier, from 13:42:40 18 the information you gathered and the chronology you prepared 13:42:43 19 throughout these reports that at the time Mr. Tobin said this 13:42:49 20 he did not know that two days prior to that time Don Schell 13:42:58 21 had been prescribed Paxil, nor did he know that he had 13:43:01 22 ingested the Paxil; isn't that true? 13:43:15 23 A. I believe that's true. When you put that question to me, 13:43:21 24 I believe he was aware that Don had gone in to see a doctor, 13:43:25 25 but I do not believe he was aware of what prescription was 1341 13:43:30 1 given to him. 13:43:32 2 Q. Okay. In your report, this is your signature, right? 13:44:08 3 A. Yes. 13:44:09 4 THE COURT: What exhibit are you referring to, 13:44:10 5 Mr. Fitzgerald? 13:44:11 6 MR. FITZGERALD: Sorry. 13:44:13 7 Q. (BY MR. FITZGERALD) Detective Sergeant Rozier, this is 13:44:15 8 your signature? 13:44:17 9 A. Yes. 13:44:19 10 MR. FITZGERALD: Is that the Court's -- 13:44:20 11 THE COURT: Is this a marked exhibit? 13:44:22 12 MR. FITZGERALD: Yes, sir. This is the continuation 13:44:23 13 of 243. 13:44:25 14 Q. (BY MR. FITZGERALD) It is the conclusion, the last part 13:44:33 15 of your report where you respectfully submit it; is that 13:44:39 16 right? 13:44:39 17 A. That's correct. 13:44:39 18 Q. And you state there, "Additionally it should be noted that 13:44:42 19 Don Schell was taking prescription drugs for treatment of 13:44:45 20 that depression and one of the drugs involved was Paxil," 13:44:50 21 correct? 13:44:52 22 A. That's correct. 13:44:52 23 Q. And the other was Ambien; isn't that true? 13:44:57 24 A. That's correct. 13:45:06 25 Q. Now, one thing that may be confusing here, I want to try 1342 13:45:09 1 to clear it up with your testimony if we can do that, and 13:45:13 2 that is that during your direct examination you were not 13:45:18 3 shown any medical records about this Dr. Rasul who was 13:45:21 4 mentioned during the direct examination and in some of these 13:45:24 5 records, right? 13:45:26 6 A. That's correct. 13:45:27 7 Q. Okay. And your investigation that I'm speaking generally 13:45:36 8 about, the entire law enforcement investigation didn't turn 13:45:40 9 up any corroboration that Donald Schell had been actually to 13:45:45 10 see Dr. Rasul but rather it was Dr. Patel; isn't that true? 13:45:50 11 A. That's what I recall. 13:45:52 12 Q. Okay. Then I don't mean to belabor this point but I want 13:46:03 13 to make sure we're clear on what was found, and that is that 13:46:07 14 there were these .22 caliber bullet wounds in each of the 13:46:18 15 three persons other than Don Schell? That's correct, right? 13:46:23 16 A. Yes. 13:46:25 17 Q. And for all four of these individuals there was what you 13:46:32 18 had earlier described as a contact wound from the .357 13:46:39 19 magnum; isn't that true? 13:46:41 20 A. Contact or very, very close, to the point -- if I could -- 13:46:53 21 Q. Sure. 13:46:54 22 A. Contact wound could be described as actually when the 13:46:58 23 muzzle touches the flesh of the person that is shot. Contact 13:47:04 24 wound or a very close wound even at approximately a half inch 13:47:08 25 or an inch would leave the evidence that we saw which was 1343 13:47:17 1 evidence of a very close, close gunshot wound in terms of 13:47:22 2 burn powder and things of that nature. 13:47:26 3 Q. That kind of wound was found on Alyssa Tobin, correct? 13:47:30 4 A. Yes. 13:47:31 5 Q. Deborah Tobin, correct? 13:47:33 6 A. Yes. 13:47:33 7 Q. Rita Schell, correct? 13:47:35 8 A. Yes. 13:47:35 9 Q. And Don Schell, correct? 13:47:37 10 A. Yes. 13:47:38 11 MR. FITZGERALD: May I have just a moment, Your 13:47:39 12 Honor? 13:47:40 13 THE COURT: Sure. 13:47:42 14 MR. FITZGERALD: That's all I have. Thank you. 13:47:43 15 THE COURT: Anything else? 13:47:45 16 MR. GORMAN: Just one quick question. 13:47:49 17 Q. (BY MR. GORMAN) As we saw in the earlier report, there 13:47:51 18 was a very small amount of Paxil in Mr. Schell's blood 13:47:58 19 following the incident, true? 13:48:01 20 A. That's true. 13:48:03 21 Q. You certainly don't believe Paxil caused Mr. Schell to do 13:48:08 22 what he did, do you? 13:48:09 23 MR. FITZGERALD: Excuse me, Your Honor. This calls 13:48:11 24 for an opinion. 13:48:14 25 THE COURT: Objection sustained. 1344 13:48:15 1 MR. GORMAN: Thank you, Officer. I don't have any 13:48:16 2 other questions. 13:48:18 3 THE COURT: May this witness be permanently excused? 13:48:20 4 MR. GORMAN: He can, Your Honor, yes. 13:48:22 5 MR. FITZGERALD: Yes. 13:48:23 6 THE COURT: Thank you very much, Detective Rozier. 13:48:25 7 You're excused from further appearance at this trial and you 13:48:29 8 can return to your home and your duties. 13:48:31 9 THE WITNESS: Thank you, sir. 13:48:43 10 MR. GORMAN: Is Dr. Patel here? 13:48:46 11 MR. VICKERY: Yes. 13:48:56 12 THE COURT: Is that going to be our next witness? 13:49:03 13 MR. FITZGERALD: Apparently, Your Honor. 13:49:05 14 MR. PREUSS: Yes, Your Honor. 13:49:05 15 THE COURT: And who is calling Dr. Patel, the 13:49:08 16 defendant? 13:49:09 17 MR. PREUSS: Yes. 13:49:10 18 (Witness sworn.) 13:50:14 19 THE CLERK: Please state your name and spell it for 13:50:15 20 the record. 13:50:19 21 THE WITNESS: Name is K I R T, as in Tom, I K U M A R 13:50:26 22 and P, as in Peter, A T, as in Tom, E L. 23 24 25 1345 1 KIRTIKUMAR PATEL, M.D., 2 called as a witness on behalf of the Defendant, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 13:50:39 5 Q. (BY MR. PREUSS) Good afternoon, Dr. Patel. My name is 13:50:41 6 Chuck Preuss. I represent SmithKline, the defendant in this 13:50:44 7 case. And you and I had a chance to have a deposition 13:50:48 8 together a while ago? 13:50:49 9 A. Correct. 13:50:50 10 Q. Could you please state what your medical specialty is, 13:50:55 11 sir? 13:50:55 12 A. I'm an internist. 13:50:57 13 Q. And you're licensed to practice in the state of Wyoming? 13:51:01 14 A. That's correct. 13:51:02 15 Q. And are you board certified, sir? 13:51:05 16 A. Yes, I am. 13:51:06 17 Q. And as an internist, what types of patients do you see, 13:51:09 18 sir? 13:51:10 19 A. Basically any diseases of the adults. 13:51:15 20 Q. And do you treat mental illness as part of your general 13:51:19 21 practice? 13:51:20 22 A. That's correct. 13:51:21 23 Q. And how long -- where do you practice, sir? 13:51:23 24 A. In Gillette, Wyoming. 13:51:24 25 Q. And how long have you been there, sir? 1346 13:51:26 1 A. Since July of 1991. 13:51:37 2 Q. As part of your practice since moving there in 1991, have 13:51:40 3 you had occasion to treat patients with depression? 13:51:42 4 A. Yes. 13:51:49 5 Q. And that's part of your regular patient practice? 13:51:51 6 A. Yes. 13:51:51 7 Q. When did you first see Don Schell, sir? And if you have 13:51:54 8 your records there, feel free to use them. 13:51:59 9 MR. PREUSS: And, Your Honor, for the record it is 13:52:01 10 Exhibit 236. 13:52:04 11 A. I first saw Mr. Schell on November 6th, 1996. 13:52:10 12 Q. (BY MR. PREUSS) And what was the purpose of that visit, 13:52:12 13 sir? 13:52:13 14 A. He had come in to have a physical exam done and some 13:52:17 15 papers to be filled out and some blood to be collected and to 13:52:21 16 be sent to a transplant center where he was thinking about 13:52:25 17 donating some of his bone marrow for his brother. 13:52:30 18 Q. And what did he give you by way of his medical history on 13:52:39 19 that first visit in November of 1996? 13:52:39 20 A. Well, he was essentially healthy and he did not have any 13:52:47 21 acute complaints of medical problems going on. I went 13:52:51 22 through basically his family histories, his allergies. He 13:52:57 23 was allergic to codeine. His current medications, he was not 13:53:00 24 taking any medication at that time. And his past medical 13:53:03 25 history. 1347 13:53:05 1 Q. And then does that conclude the first visit, sir? 13:53:13 2 A. Besides that, I did a physical exam and yes, that 13:53:17 3 concludes the first visit. 13:53:18 4 Q. And what was the next contact that you had with Don Schell 13:53:22 5 in connection with your treatment of him, sir? 13:53:26 6 A. The next contact was on the 11th of February, 1998. 13:53:32 7 Q. Okay. Now prior to that date had you had any telephone 13:53:35 8 contact by either Mrs. Schell or Mr. Schell? 13:53:40 9 A. Yes, I did. 13:53:41 10 Q. All right. 13:53:42 11 A. And that was on the 10th of February, 1998. 13:53:45 12 Q. And that was a telephone call that your office received? 13:53:50 13 A. That's right. 13:53:59 14 Q. And from whom was the phone call received? 13:54:05 15 A. Rita Schell had made the phone call and left a message 13:54:11 16 regarding Don with a phone number and the pharmacy with the 13:54:17 17 request that -- she was requesting a script for sleeping 13:54:22 18 pills for Don. 13:54:23 19 Q. Now, Doctor, I put up on the screen a telephone slip there 13:54:27 20 and you can see you have a little screen there. Is that the 13:54:31 21 telephone slip that we're talking about that you're referring 13:54:33 22 to? 13:54:34 23 A. That's correct. 13:54:35 24 Q. All right. And so initially Brenda, who I take it works 13:54:43 25 at your office -- 1348 13:54:44 1 A. Right. 13:54:45 2 Q. -- she received a phone call from Rita Schell? 13:54:47 3 A. Correct. 13:54:48 4 Q. And the specific entry, initial entry was, "Script for 13:54:54 5 sleeping pills," quote, "Nerves are shot," correct? 13:54:59 6 A. Correct. 13:54:59 7 Q. And then did Brenda bring that to your attention, sir? 13:55:03 8 A. That's right. 13:55:03 9 Q. And what did you do? 13:55:05 10 A. First I looked through the chart to see if we had 13:55:08 11 prescribed any pills for him. Maybe he was asking for a 13:55:11 12 refill of that or if he had any similar problems. 13:55:16 13 And from reviewing the first visit of November 1996, 13:55:20 14 I did not see any reason of him being on any medication or me 13:55:25 15 prescribing any. So I had asked Brenda to call either Don or 13:55:31 16 Rita and find out why does he need the prescription for 13:55:34 17 sleeping pills. 13:55:35 18 Q. Okay. And then these other entries that we have that 13:55:38 19 would be below, "Nerves are shot," and would be written on 13:55:45 20 the diagonal would be additional information obtained by 13:55:48 21 Brenda? 13:55:49 22 A. That's right, probably a summary of some main points about 13:55:52 23 a telephone conversation between Brenda and either Don or 13:55:56 24 Rita. 13:55:57 25 Q. You're not sure which of the two? 1349 13:55:58 1 A. No, I'm not sure. 13:56:00 2 Q. And what additional information did Brenda receive and 13:56:02 3 record here with respect to Don Schell's needs? 13:56:07 4 A. She was informed that he's having a lot of stress at work, 13:56:13 5 he had a similar problem that occurred about five years ago, 13:56:22 6 he had bad go-arounds, he can't sleep, he was given 13:56:27 7 antidepressant medications at that time, was anxious, had 13:56:30 8 anxiety, and I think that must have been given by 13:56:33 9 Dr. Hemphill who was an internist in town prior to 1990. 13:56:42 10 And then she was given information that has tried 13:56:45 11 Prozac, did not help or not good. She was informed that the 13:56:49 12 marriage was good. His brother had died, father-in-law had 13:56:54 13 died and had quit his job recently. 13:57:02 14 Q. Was that additional information brought to your attention 13:57:05 15 then? 13:57:05 16 A. That's right. 13:57:06 17 Q. What did you do at that time, sir? 13:57:07 18 A. Looking at that information, of which I was not aware of 13:57:10 19 those problems from the previous physical, I requested that 13:57:14 20 he make an appointment so I can go over those symptoms and 13:57:18 21 decide on the treatment. 13:57:22 22 Q. And when was the appointment made for, sir? 13:57:24 23 A. It was made for the next day, for the 11th of February. 13:57:34 24 Q. Do you know the time of that visit, sir? 13:57:36 25 A. It was somewhere in the afternoon. 1350 13:57:39 1 Q. And was that appointment met or kept? 13:57:43 2 A. Yes, it was. 13:57:44 3 Q. And who was present at the visit on the afternoon of the 13:57:51 4 11th? 13:57:53 5 A. Don was accompanied by Rita when he came in for that 13:57:56 6 appointment. 13:58:05 7 Q. Could you refer to the chart entry note that you have for 13:58:08 8 that visit, please, sir? 13:58:10 9 A. Yes. 13:58:11 10 Q. And what was the chief complaint when Mr. and Mrs. Schell 13:58:33 11 came to see you? 13:58:34 12 A. Anxiety. 13:58:37 13 Q. And what did he provide to you by way of history? 13:58:41 14 A. When I walked in and I interviewed him, I asked him 13:58:44 15 basically what was going on with the anxiety or wanted him to 13:58:47 16 elaborate more on it. And then a few that I had handwritten, 13:58:57 17 he told me this was the fourth time that it had occurred in 13:59:01 18 about five years and before that he had had a similar problem 13:59:05 19 one and a half to two years. 13:59:29 20 Q. So we're talking about the handwritten entry that I've 13:59:32 21 shown on the screen that is about the seventh line down that 13:59:35 22 says, "CC:" chief complaint? 13:59:44 23 A. Right. 13:59:44 24 Q. That was your handwritten note? 13:59:44 25 A. Right. 1351 13:59:44 1 Q. And below that you say -- is that "Note dictated"? 13:59:47 2 A. "Note dictated." 13:59:48 3 Q. And that's your signature, right? 13:59:50 4 A. That's right. 13:59:50 5 Q. If we go down farther there, that's your dictated history, 13:59:59 6 right? 13:59:59 7 A. That's right. 14:00:22 8 Q. Now is your recollection of what was told you refreshed by 14:00:25 9 the dictated note here? 14:00:27 10 A. That's right. 14:00:27 11 Q. And feel free to read that and give us the history 14:00:30 12 provided to you at that time. 14:00:31 13 A. The summary of that office visit was that the patient had 14:00:34 14 come in with problems of anxiety, stress and even possible 14:00:38 15 depression. We had an extensive discussion about what was 14:00:42 16 going on at that time and over the 30, 45 minutes that he and 14:00:47 17 his wife were there the summary was that the patient told me 14:00:53 18 that over the years he had had these problems and the last 14:00:57 19 time he had was about five years ago. Prior to that he would 14:01:02 20 have it every one and a half to two years or so. 14:01:09 21 Recently he has had a lot of family problems at one 14:01:16 22 time. Family members have died recently and the patient's 14:01:19 23 brother-in-law and father died almost in the same month. The 14:01:23 24 patient says he is trying to keep his wife and mother-in-law 14:01:26 25 together. 1352 14:01:27 1 There have been some problems with his work. His 14:01:30 2 company was being sold off at one time and then the other 14:01:34 3 time it actually did get sold. And then recently the price 14:01:38 4 of oil had decreased. All of these were causing him the 14:01:43 5 problems to the point that the patient was not able to rest 14:01:47 6 and not able to sleep. 14:01:49 7 He would get up after about three or four hours in 14:01:58 8 bed and feels very tired, edgy and anxious. No episodes of 14:02:03 9 crying spells or generalized weakness, not wanting to do 14:02:07 10 anything and listlessness, mind running at 100 miles an hour. 14:02:13 11 Q. Let me ask you about a couple of those, if I might. What 14:02:16 12 was your understanding of what was meant by trying to keep 14:02:21 13 his wife and mother-in-law together? 14:02:22 14 A. Probably emotionally because of the deaths in the family, 14:02:27 15 maybe they might have been emotionally distraught and he was 14:02:31 16 trying to help them. 14:02:32 17 Q. Who did most of the talking at this meeting? 14:02:35 18 A. As per my recollection, Don did most of the talking. 14:02:44 19 Q. What did it mean to you when you put down mind running at 14:02:49 20 100 miles per hour speed? How did you interpret that in the 14:02:52 21 history? 14:02:53 22 A. Basically the patients usually say those sentences and 14:02:57 23 what it means is they're always thinking about something, 14:03:00 24 either they're being pushed or under pressure. 14:03:03 25 Q. That was a sign of stress to you? 1353 14:03:05 1 A. Possibly. 14:03:07 2 Q. And then, Doctor, you asked Mr. Schell for his past 14:03:12 3 medical history; is that right? 14:03:15 4 A. That's right. 14:03:15 5 Q. And what did he tell you in that regard? 14:03:17 6 A. Well, basically already it has been mentioned. He had 14:03:22 7 this similar problem because that's what the main problem was 14:03:25 8 at this visit, and he said the last time he had it was about 14:03:29 9 five years ago and before that he would have these problems 14:03:32 10 every one and a half to two years. 14:03:35 11 Q. Okay. And he mentioned that he had seen a Dr. Bagnarello? 14:03:39 12 A. Right, he had mentioned that he had seen Dr. Bagnarello, 14:03:43 13 he had seen a physician on Lakeway, possibly Dr. Buchanan who 14:03:48 14 is a psychiatrist in town, and then he had -- most of the 14:03:54 15 time he had been taking the medication for one to two months 14:03:57 16 and then gotten better and he would stop it. He did remember 14:04:02 17 having some side effects from Prozac but could not elaborate 14:04:07 18 or they weren't that significant that I had written what the 14:04:12 19 side effects were. 14:04:14 20 Q. They weren't that significant so you didn't write them in? 14:04:17 21 A. Right. 14:04:18 22 Q. A couple questions here. Was Dr. Buchanan still 14:04:20 23 practicing as a psychiatrist in Gillette at that time? 14:04:23 24 A. Yes, he was. 14:04:24 25 Q. And do you have any idea who the psychiatrist was that was 1354 14:04:27 1 on Lakeway? 14:04:29 2 A. No, I'm not sure. 14:04:44 3 Q. If we go above the dictated note there's a chart or 14:04:47 4 questionnaire that's filled out. Can you tell me what that's 14:04:51 5 all about? 14:04:52 6 A. Basically this is a questionnaire. Besides me asking him 14:04:55 7 how he felt generally about life, this is a questionnaire 14:04:58 8 that the patients usually answer about how they feel or think 14:05:03 9 about life in general, wanting to do things, enjoying things. 14:05:08 10 If they have any of the questions, being suicidal ideation, 14:05:13 11 crying spells, losing weight, and those are some of the 14:05:17 12 symptoms that you have and then there's a grading of the 14:05:20 13 score, that if you do the scoring it can make a diagnosis. 14:05:25 14 It is not an accurate sign, but it does help us in certain 14:05:29 15 ways to decide whether the patient does have clinical 14:05:32 16 depression or not. 14:05:34 17 And the studies done over the years, when patients 14:05:38 18 have sudden problems, when they're treated and if they answer 14:05:41 19 the same questionnaires over time and time, and you can see 14:05:50 20 the gradual improvement that it would help. 14:05:53 21 Q. Is my understanding correct that you had asked him to fill 14:05:55 22 out the questionnaire after you had gotten both the direct 14:05:58 23 history as well as his past medical history? 14:06:01 24 A. That's correct. 14:06:01 25 Q. And this would be filled out by the patient? 1355 14:06:03 1 A. Correct. 14:06:04 2 Q. In other words, you wouldn't ask the questions and put the 14:06:05 3 X, he would be handed it and fill them out, right? 14:06:09 4 A. That's correct. 14:06:09 5 Q. And the only one that he marked out as most or all at a 14:06:17 6 time on a negative trait, if you will, or negative illness 14:06:22 7 situation was inability to sleep through the night; is that 14:06:25 8 correct? 14:06:26 9 A. Correct. 14:06:40 10 Q. What were the results of that test? Did you interpret it, 14:06:45 11 sir? 14:06:46 12 A. I graded it and the total score was -- let me look over -- 14:06:50 13 it is 46 and then there is a scale that we look against it 14:06:56 14 and it comes out to be about 58. 14:07:04 15 On the grading of the scale if it is less than 50 you 14:07:07 16 can still be depressed, but on the scale 50 to 60 would be 14:07:12 17 mild and 60 to 70 would be moderate and more than 70 would be 14:07:16 18 severe depression. 14:07:17 19 Q. When do you give a patient like this a questionnaire? Is 14:07:20 20 that something you give every patient or just a patient that 14:07:23 21 presents with anxiety or depression-type symptoms? 14:07:26 22 A. Especially one with anxiety and depression. 14:07:36 23 Q. Did you perform a physical exam, sir? 14:07:38 24 A. Yes, I did. 14:07:39 25 Q. And what was the result of that? 1356 14:07:45 1 A. Physical exam was essentially normal. Basically when 14:07:49 2 patients are anxious or depressed at the most you might find 14:07:53 3 either the blood pressure being high, the heart rate being 14:07:56 4 fast, they might have some fine tremors, but otherwise with 14:08:03 5 stress, anxiety or depression the physical findings are 14:08:06 6 usually normal. 14:08:09 7 Q. You saw no tremors at all in your physical exam? 14:08:18 8 A. Not that I dictated in here, so probably not. 14:08:24 9 Q. So basically his physical exam then was normal by any 14:08:29 10 direct observable symptoms; is that right? 14:08:33 11 A. Correct. 14:08:39 12 Q. Did you have a discussion then of your observations based 14:08:41 13 on the history provided by Mr. Schell as well as the 14:08:44 14 completed questionnaire? 14:08:47 15 A. That's correct. And that's the usual practice, though. 14:08:50 16 Patients come in with the complaints, take the history, do 14:08:54 17 the examination and when prescribing therapy, it means to 14:09:02 18 describe the rationale of the treatment, what is going on, 14:09:07 19 the particular disease that they have. And that's what I 14:09:09 20 discussed. 14:09:10 21 My impression was that probably had depression and 14:09:16 22 that's the pathophysiology offered, what has occurred, what 14:09:22 23 the symptoms can do, what does the lack of hormones means and 14:09:26 24 how to treat it and how the medication would work, along with 14:09:29 25 the side effects, medications and any other questions that 1357 14:09:36 1 the patient would have, follow-up. 14:09:38 2 Q. And what was your treatment plan following this discussion 14:09:41 3 that you had with the Schells? 14:09:46 4 A. Well, I described and I wrote it over here, I started by 14:09:50 5 giving him some samples of Paxil. 14 of them were given and 14:09:55 6 the idea was to start with half a tablet a day, and then the 14:10:00 7 Ambien was given, which was a sleeping pill which was his 14:10:06 8 main complaint, that he had difficulty sleeping. 14:10:08 9 Q. You gave him the Ambien because of his being -- the most 14:10:12 10 severe -- 14:10:15 11 A. Sleep disorder. 14:10:16 12 Q. I'm not sure, did I hear you correctly on the Paxil? Did 14:10:23 13 you say start out with half a pill, or is that the Ambien? 14:10:27 14 A. No, that was the Ambien. The Paxil was one tablet a day. 14:10:31 15 Q. Did you tell him when to take the medications? 14:10:35 16 A. Usually at bedtime. 14:10:37 17 Q. Is that for both? 14:10:38 18 A. Yes. 14:10:46 19 Q. Why did you give him samples as opposed to giving him a 14:10:49 20 prescription for Paxil? 14:10:51 21 A. Usually for antidepressant medications or even a lot of 14:10:54 22 antibiotics, sometimes patients have side effects of either 14:11:00 23 they may not be able to tolerate it because of stomach side 14:11:04 24 effects. For antibiotics and those kinds of stuff, if it is 14:11:08 25 available, we usually try to give the samples in the hope 1358 14:11:11 1 that if it works then the patients don't have to be having 14:11:14 2 pills that you go in and get 20, 30 tablets which would cost 14:11:19 3 you about $100 a month and five or three days later, if it 14:11:24 4 doesn't work, patients usually end up with drugs that are 14:11:27 5 useless. 14:11:28 6 Q. So you want to give the patient and the medication a 14:11:30 7 chance to see if they work well together? 14:11:34 8 A. It will work. 14:11:43 9 Q. Did you have a follow-up schedule with him assuming 14:11:45 10 everything worked out all right? 14:11:49 11 A. It says, like I mentioned, follow up as needed. The usual 14:11:52 12 instructions are that the patients -- and that's the reason 14:11:55 13 the samples are given for two weeks. By two weeks at least 14:11:58 14 you will know if the patients -- whatever side effects they 14:12:05 15 have. 14:12:05 16 With all new medication there's always some side 14:12:07 17 effects, especially with the stomach, headaches, muscle 14:12:11 18 aches. And the patients are instructed you take the 14:12:13 19 medication for two weeks. At that time either they come in 14:12:16 20 or call us telling us how the medication did. If it is 14:12:20 21 helping we need to call in a refill, or if we need to change 14:12:23 22 the medications or reevaluate the patient and try something 14:12:27 23 else. 14:12:28 24 Q. With respect to your prescription of Paxil, sir, did you 14:12:30 25 have any concern at all about prescribing another SSRI based 1359 14:12:34 1 on what he had told you about Prozac? 14:12:38 2 A. No. 14:12:40 3 Q. And did you tell Donald Schell how long he would have to 14:12:45 4 wait to expect changes in how he felt? 14:12:48 5 A. For depression purposes usually the medications take 14:12:52 6 anywhere from about a week to six weeks to start working or 14:13:00 7 showing any clinical improvement. 14:13:02 8 Q. Is that something you passed on to him? 14:13:04 9 A. That's right. 14:13:04 10 Q. And did you tell him anything about whether he could call 14:13:07 11 you back if he felt things were not working out prior to that 14:13:10 12 two-week period when his samples would have run out? 14:13:13 13 A. That's the standard instructions for any patients. I 14:13:16 14 mean, if they notice or they think about some new symptoms 14:13:20 15 and something is not right when they get home, if they have 14:13:23 16 any other questions, usually literature, information, papers 14:13:28 17 are given to the patients regarding about the disease, the 14:13:32 18 drugs. They read and talk to family members and if they have 14:13:36 19 any questions, they're usually free to call us back. 14:13:45 20 Q. As I understand from the deposition, you have an unlisted 14:13:48 21 home phone, too; is that correct? 14:13:50 22 A. No, it is listed. 14:13:51 23 Q. It is a listed number, I meant to say. So your door is 14:13:55 24 always open if you get a call from a patient? 14:13:59 25 A. That's correct. 1360 14:14:00 1 Q. It is indicated here you have handouts that you give the 14:14:03 2 patient? 14:14:04 3 A. That's right. 14:14:05 4 Q. Is that right? 14:14:06 5 A. That's right. 14:14:06 6 Q. What's the nature of those, if you would, Doctor? 14:14:08 7 A. Basically those are summaries, either self-written or 14:14:11 8 picked up from some journals or other articles describing 14:14:15 9 what depression means, sometimes some diagrams about how the 14:14:19 10 medications work, side effects of the medications, possible 14:14:23 11 duration, various other options and to that fact. 14:14:49 12 Q. And you gave those handouts to Mr. and Mrs. Schell? 14:14:52 13 A. That's right. 14:15:01 14 Q. I would like to show you Exhibit 3-A and ask you if that 14:15:05 15 is a handout -- 14:15:05 16 MR. PREUSS: May I approach, Your Honor? 14:15:07 17 THE COURT: Yes. This is Exhibit 3-A. 14:15:09 18 MR. PREUSS: Yes, it is. 14:15:11 19 Q. (BY MR. PREUSS) This was available about three years ago. 14:15:14 20 Might that be one that was available to your patients at that 14:15:17 21 time? 14:15:18 22 A. Correct. 14:15:19 23 Q. Is that correct? 14:15:19 24 A. That's right. 14:15:29 25 Q. How long did the entire visit take with Mr. and 1361 14:15:31 1 Mrs. Schell that day? 14:15:32 2 A. Probably about 30 or 45 minutes. 14:15:35 3 Q. Thirty or 45 minutes? 14:15:37 4 A. Right. 14:15:37 5 Q. Now, Doctor, is suicide a risk of depression? 14:15:44 6 A. That's correct. 14:15:46 7 Q. And do suicides occur whether or not a person may be on 14:15:50 8 antibiotics or not -- antidepressants? Excuse me. 14:15:55 9 A. Correct. 14:16:00 10 Q. Did you specifically ask Don Schell whether or not he was 14:16:02 11 suicidal or homicidal? 14:16:04 12 A. That is a standard question when the patient is 14:16:08 13 interviewed and that was also asked in the questionnaire 14:16:11 14 itself. The question number 19: "I feel that others would 14:16:21 15 be better off if I were dead," and he had answered none or 14:16:27 16 little at the time. 14:16:28 17 Q. So he basically was asked one question in writing and then 14:16:32 18 one orally by you? 14:16:35 19 A. That's right, because when we treat depression or think 14:16:37 20 about depression, that is one of the main things about it, 14:16:42 21 the patients are suicidal or homicidal, but that is one of 14:16:46 22 the indications that either the patients be followed up 14:16:50 23 closely either on a daily basis or, in worse cases, even 14:16:53 24 being admitted to the hospital. 14:17:00 25 Q. And when you asked that question Rita Schell was present? 1362 14:17:04 1 A. That's right. 14:17:04 2 Q. And you relied on that answer, didn't you? 14:17:08 3 A. Pardon me? 14:17:08 4 Q. I said you relied on the answer, i.e., the denial that 14:17:11 5 there were any suicidal or homicidal thoughts? 14:17:14 6 A. I was given an answer. No. 14:17:19 7 Q. And based on that answer and the questionnaire, you did 14:17:22 8 not find him to be a risk for suicide; isn't that correct? 14:17:27 9 A. I have to rely on what the patients tell me. 14:17:33 10 Q. That's the only way you can act is based on what they tell 14:17:36 11 you; isn't that right? 14:17:37 12 A. That's correct. 14:17:49 13 Q. Now, during that visit did Don Schell tell you he was 14:17:52 14 unable to work at all? 14:17:54 15 A. I don't recall it. 14:17:55 16 Q. Did he tell you that the day before that he saw you he 14:18:00 17 felt that he couldn't get back from work without having to 14:18:03 18 call his wife to come pick him up and bring him back to the 14:18:08 19 house? 14:18:09 20 A. I don't recall that. 14:18:15 21 Q. Did he tell you he had asked someone else to take over his 14:18:18 22 job responsibilities just the day before he saw you? 14:18:21 23 A. No, I am not aware about that. 14:18:29 24 Q. Did he tell you he had had psychotherapy for a period of 14:18:29 25 time as long as a year combined with antidepressant 1363 14:18:30 1 medication? 14:18:33 2 A. He had mentioned that he had taken medication for two to 14:18:36 3 three months at a time in the prior years, but nothing 14:18:40 4 recently. 14:18:40 5 Q. Did he ever tell you that he had had psychotherapy for as 14:18:43 6 long as a year during which time he was also on 14:18:47 7 antidepressant medication? 14:18:49 8 A. I am not aware about that. 14:18:53 9 Q. Did he tell you that with respect to some of his prior 14:18:56 10 visits that he discontinued the treatment and the medication 14:19:00 11 on his own? 14:19:03 12 A. I am not aware of that, no. 14:19:05 13 Q. Are those facts that I asked you about something that 14:19:08 14 would have been important to you as a physician at the time 14:19:10 15 in considering the best treatment for Donald Schell? 14:19:15 16 A. It would help me to gauge about how much more depressed he 14:19:19 17 was. Regarding quitting his job, not able to get home on his 14:19:25 18 own, quitting medications on his own, that would just tell us 14:19:32 19 it is apparent that the patient is falling, which is a very 14:19:37 20 common pattern with depression. 14:19:40 21 We usually tell you have to take the medication for 14:19:43 22 8, 12, 15 months to be really good, but the medications work 14:19:47 23 in about a month or two. And there's a high incidence of 14:19:50 24 dropout rates where the patients feel well after a few 14:19:53 25 months. Later they have a similar problem about a year or 1364 14:19:56 1 two years later. 14:20:05 2 Q. At the deposition you recall being shown the PDR entry for 14:20:10 3 Paxil which is Joint Exhibit 200-A? I'll just give you a 14:20:17 4 copy of that. 14:20:19 5 MR. PREUSS: If I may, Your Honor. 14:20:37 6 Q. (BY MR. PREUSS) We had a brief discussion about the 14:20:38 7 package insert, do you recall that? 14:20:40 8 A. I recall that. 14:20:41 9 Q. You indicated that the information from SmithKline on 14:20:43 10 Paxil didn't tell you anything that you didn't know already; 14:20:45 11 isn't that correct? 14:20:46 12 A. That's correct. 14:20:46 13 Q. And that you didn't rely on it in your treatment selection 14:20:51 14 but instead, you relied upon your own knowledge that you 14:20:54 15 gained over the years of treating and discussions with 14:20:58 16 colleagues and your own clinical experience? 14:21:02 17 MR. VICKERY: Objection, leading. 14:21:04 18 THE COURT: Little leading. Overruled. Witness can 14:21:06 19 answer. 14:21:36 20 Q. (BY MR. PREUSS) Doctor, have you ever had any incidents 14:21:36 21 with suicide or violence with any patient of yours that you 14:21:36 22 had prescribed Paxil to in the past? 14:21:36 23 A. I am not aware. 14:21:36 24 Q. And you still use Paxil with your patients today, sir? 14:21:36 25 A. That's correct. 1365 14:21:40 1 Q. And with respect to this case, did Paxil have anything to 14:21:43 2 do with this tragedy in your view, sir? 14:21:46 3 A. It is difficult for me to answer that. 14:21:51 4 Q. You don't know? 14:21:52 5 A. That I don't know. 14:21:53 6 MR. PREUSS: Thank you, sir. 14:22:10 7 THE COURT: Cross-examination. 8 CROSS-EXAMINATION 14:22:11 9 Q. (BY MR. VICKERY) Good afternoon, Dr. Patel. 14:22:13 10 A. Good afternoon. 14:22:14 11 Q. If Don Schell had been taking an MAOI and stopped a day or 14:22:18 12 two before he came in to see you, would you have given him 14:22:21 13 Paxil? 14:22:22 14 A. No. 14:22:22 15 Q. Why not? 14:22:23 16 A. Because it is a well-documented fact that the patients 14:22:25 17 have to be at least six weeks free of an MAOI before they're 14:22:32 18 given other antidepressant medications. 14:22:35 19 Q. Right there in bold type in the package insert, isn't it, 14:22:37 20 in front of you? 14:22:43 21 A. Probably is, but I'm aware of the fact, yes. 14:22:52 22 Q. You said something at first about half a tablet but that 14:22:55 23 was really just the Ambien that you suggested, right? 14:22:59 24 A. That's correct. 14:22:59 25 Q. In fact, the Paxil pills, the 20-milligram pills which you 1366 14:23:03 1 gave him, come in a scored fashion so they can be cut in 14:23:07 2 half, can't they? 14:23:08 3 A. That's right. 14:23:09 4 Q. And were you aware on February the 13th, 1998, that 14:23:14 5 SmithKline Beecham was telling its salesmen to recommend to 14:23:18 6 doctors such as you that if you have a patient that has an 14:23:22 7 anxious depression, that you should advise them to cut that 14:23:26 8 pill in half for the first few days? Were you aware of that? 14:23:29 9 A. No. 14:23:30 10 Q. There's nothing in the package insert that tells you that, 14:23:34 11 is there? 14:23:34 12 A. No. 14:23:41 13 Q. I want to talk about this test you gave. It is an SDS 14:23:45 14 test, right? 14:23:45 15 A. It is standard depression screening scale. There's about 14:23:48 16 two or three of those. This is the one that I have found 14:23:51 17 that seems to be useful. It is more of a screening test. It 14:23:54 18 is not diagnostic, as I mentioned earlier. It is not 100 14:23:58 19 percent foolproof test, but it does help us to gauge and 14:24:03 20 helps me to remember a lot of questions that should be asked 14:24:06 21 or the patient should be answering. 14:24:09 22 Q. Okay. I want to look -- let me look up here, if I may 14:24:12 23 approach you. I think that that detective walked off with 14:24:15 24 that -- 14:24:17 25 MR. GORMAN: This pointer? He left it here on the 1367 14:24:22 1 table. 14:24:23 2 MR. VICKERY: Thank you, Mr. Gorman. 14:24:35 3 Q. (BY MR. VICKERY) You can look on the board or the screen 14:24:36 4 there. So we're clear, the patient is asked to fill this 14:24:39 5 out, and they either answer some of the time, good part of 14:24:44 6 the time, most or all of the time? 14:24:52 7 A. That's correct. 14:24:52 8 Q. And the stamp we see on the notice is something you put on 14:24:52 9 later after they were dead, right? 14:24:53 10 A. This is when the records are copied. I presume that's 14:24:56 11 what it shows. Anytime the records are copied, that's -- 14:24:59 12 Q. In other words, when he filled it out that would not have 14:25:02 13 been on there? 14:25:03 14 A. No, and I have the original one and it is not on there. 14:25:07 15 Q. The first question there, "I feel downhearted, blue and 14:25:10 16 sad," what did Mr. Schell answer? 14:25:12 17 A. Some of the time. 14:25:13 18 Q. Now, if he had said most of the time, that would have 14:25:16 19 indicated a more serious problem with depression, right? 14:25:22 20 A. Correct. 14:25:22 21 Q. When it says, "I have crying spells or feel like it," 14:25:27 22 number 3, he said none or little of the time, what does that 14:25:29 23 mean to you? 14:25:30 24 A. It is less. As I said, this is imposed on another 14:25:33 25 screening test where you get the numbers on the side. Each 1368 14:25:36 1 of those boxes means the severity and it will be 1 to 4 and 14:25:43 2 that's how it is graded. When the patient answers this, it 14:25:46 3 is put under a transfer paper and that's how it is written, 14:25:52 4 what the score means. 14:25:53 5 Q. Do you do the scores yourself or does your nurse do that? 14:25:56 6 A. No, I do that. 14:25:57 7 Q. Thank you for that explanation. 14:25:59 8 The jury will have this, they can look at them all, 14:26:02 9 but let's look under number 14, "I feel hopeful about the 14:26:05 10 future." And he said some of the time, right? 14:26:08 11 A. Right. 14:26:11 12 Q. So would it be fair to say that this man was hopeless 14:26:14 13 about the future? 14:26:15 14 A. That's right, because that's got a score of 3. 14:26:18 15 Q. So is he hopeless? 14:26:20 16 A. Yes. 14:26:22 17 Q. Well, if he were hopeless wouldn't he put down none or a 14:26:25 18 little of the time? 14:26:26 19 A. These questions are basically our feeling about life, 14:26:30 20 means you can't just put an absolute number to it. It means 14:26:34 21 you might feel right about one thing and what I have known 14:26:40 22 just recently, if he gave up his job, he had some problems, 14:26:43 23 he couldn't get home, and if he felt hopeless, maybe that was 14:26:49 24 his perception about life at that time. That could have 14:26:51 25 changed in the next hour. It could have changed in the hour 1369 14:26:55 1 just before he got to my office. 14:26:57 2 Q. Right. You don't know that he gave up his job at all, do 14:27:00 3 you? 14:27:00 4 A. No. 14:27:01 5 Q. You just have a statement from a lawyer about that? 14:27:05 6 A. That's correct. 14:27:05 7 Q. You don't know what the witnesses are going to say about 14:27:08 8 that, do you, sir? 14:27:09 9 A. No. 14:27:14 10 Q. Is it important to have 20 different questions to get an 14:27:17 11 overall feel, in other words, rather than having one 14:27:20 12 question, to have 20 to have a valid scale here? 14:27:24 13 A. Well, this is just a screening test to gauge different 14:27:26 14 aspects of life. Most of the times means if he had the chief 14:27:32 15 complaint of anxiety, many times patients come in and just 14:27:35 16 say, "I'm depressed. I need to be treated." Many times the 14:27:39 17 patients' family members will bring them in, that he's just 14:27:44 18 not acting right or maybe one of my family members is 14:27:46 19 depressed and they tell me that I should be treated for the 14:27:49 20 same because I behave like that. 14:27:51 21 So yeah, this is just a screening test. It just 14:27:54 22 helps to gauge it in some way. But otherwise for depression 14:27:58 23 at the present moment there's nothing on the physical 14:28:02 24 finding, there's no lab works, no X rays that can be done on 14:28:06 25 a routine basis. 1370 14:28:07 1 Maybe in a year or two there might be, there might be 14:28:11 2 specific glucose MRIs that we can do and that will tell you 14:28:15 3 which part of the brain doesn't work because that's what 14:28:18 4 depression means, the pleasure centers in the brain are just 14:28:21 5 not working the way it should, for whatever reason. 14:28:24 6 So this is just a screening test. It means, yeah, it 14:28:27 7 does help me. I would have still treated him for depression 14:28:32 8 even if that score was normal. So I would not hang my hat 14:28:35 9 saying because he answered this, this is what it would mean. 14:28:39 10 Q. And the score in fact was normal, wasn't it, Doctor? 14:28:43 11 A. No, it showed early depression. It was higher than 50. 14:28:46 12 Q. I thought the score was 46? 14:28:48 13 A. There is an index that you rely on. 46, and there's a 14:28:51 14 scale you go on the index and that was 58. 14:28:54 15 Q. So that put him between 50 and 60? 14:28:57 16 A. That's right. 14:28:57 17 Q. Is that why you wrote at the top "mild depression"? 14:29:00 18 A. That's right. 14:29:01 19 Q. Let's look at another couple of these. Number 17, "I feel 14:29:04 20 I'm useful and needed," and he wrote most or all of the time? 14:29:08 21 A. Right. 14:29:09 22 Q. And "My life is pretty full," he wrote most or all of the 14:29:12 23 time? 14:29:13 24 A. Right. 14:29:13 25 Q. Now, that's not a picture of a fellow that's thinking 1371 14:29:15 1 about taking his own life, is it? 14:29:18 2 A. Correct. 14:29:20 3 Q. "I feel that others would be better off if I were dead," 14:29:28 4 and he wrote none of the time? 14:29:28 5 A. That's right. 14:29:28 6 Q. That's not a picture of a man that's thinking about taking 14:29:28 7 his own life, is it? 14:29:30 8 A. Correct. 14:29:30 9 Q. And it certainly is not a picture of a man who is thinking 14:29:32 10 about murdering his whole family, is it? 14:29:36 11 A. Correct. 14:29:43 12 Q. He didn't have any money problems as far as you knew? 14:29:45 13 A. Not that I know of. 14:29:46 14 Q. Didn't have any marital problems? 14:29:48 15 A. No. 14:29:48 16 Q. In fact, the first note on that first page we saw said 14:29:51 17 marriage good, right? 14:29:52 18 A. Correct. 14:29:53 19 Q. Now let's talk for a minute about obligations in history 14:29:56 20 taking. Is history taking an important part of the diagnosis 14:30:01 21 and treatment of people? 14:30:02 22 A. Correct. 14:30:03 23 Q. And would you just explain for the folks on the jury, are 14:30:08 24 you trained to take an adequate history? 14:30:11 25 A. Yes, I am. 1372 14:30:12 1 Q. And do you believe you took an adequate history? 14:30:14 2 A. Yes, I did. 14:30:15 3 Q. And is part of the history taking knowing which questions 14:30:19 4 to ask the patient to draw out information from them? 14:30:23 5 A. Correct. 14:30:29 6 Q. Did you feel like the questions you asked Mr. Schell he 14:30:32 7 was truthful with you? 14:30:35 8 A. I can't make any judgment whether they're truthful or not. 14:30:39 9 I basically have to rely on what they tell me. 14:30:48 10 Q. Let's look at the bottom. These are your typed-up 14:30:50 11 dictation notes, right? 14:30:52 12 A. That's right. 14:31:07 13 Q. Let me ask you about this part right here. The patient 14:31:10 14 said most of the time he has taken medication for one to two 14:31:14 15 months, gotten better and then stopped taking it. Does that 14:31:17 16 pretty much fall in the pattern of most patients who take 14:31:20 17 antidepressants, in your experience? 14:31:22 18 A. Many patients do that unless they're closely followed up 14:31:25 19 and told to take it. 14:31:26 20 Q. Now, Dr. Patel, is there any prescribed period of time 14:31:30 21 when a patient must continue taking an antidepressant? 14:31:34 22 A. The recommendations are that you take it, if it is a first 14:31:38 23 episode of depression -- and there are various societies that 14:31:41 24 give you different recommendations, but the overall law is 14:31:45 25 that if you have a first episode of depression you should 1373 14:31:47 1 take it for about six to 12 months. And these -- I mean, 14:31:51 2 this was five years ago. Recently the recommendations have 14:31:54 3 changed. 14:31:55 4 If it is a second episode, you probably should take 14:31:57 5 it for 18 or 24 months. Recently some of the societies have 14:32:02 6 said that means if you have more than three depressions you 14:32:05 7 should be treating depression just like we treat blood 14:32:09 8 pressure, diabetes or cholesterol. You need to be on it 14:32:13 9 lifelong. But this is a recent thing. 14:32:16 10 Q. SSRIs are psychoactive medications, aren't they? 14:32:21 11 A. I don't understand what you mean by psychoactive. 14:32:24 12 Q. I mean they affect the brain, they affect the chemistry of 14:32:27 13 what's between your ears? 14:32:29 14 A. That's right. 14:32:29 15 Q. And do you believe, Doctor, that patients should be taking 14:32:32 16 psychoactive medications all of the time for the rest of 14:32:35 17 their life if they've had a couple, three bouts with 14:32:38 18 depression? 14:32:39 19 A. From what we have known -- and I said that in a few years 14:32:42 20 there will be MRIs available telling us which part of the 14:32:45 21 brain doesn't function. From the tests they have done 14:32:48 22 there's a lack of serotonin which is a hormone that makes the 14:32:52 23 nerves talk to each other, and that's how we enjoy life, feel 14:32:56 24 happy, do things, want to do things, remain focused. 14:33:04 25 If those drugs are the only ones that keep our drug 1374 14:33:07 1 levels up or keep our nerves intact and talking to each other 14:33:12 2 the way they should, they probably do need to. As I said, 14:33:20 3 this is just my information gathered from the journals. I'm 14:33:23 4 not recommending that people should be on, but if down the 14:33:26 5 road psychiatric societies, medical societies, if they do 14:33:29 6 recommend, that is just the same thing as if you have a blood 14:33:34 7 pressure, you take medications, when it becomes normal do you 14:33:37 8 stop the medication? 14:33:38 9 Q. You and I have talked about it and you believe that 14:33:40 10 patients should get counseling or psychotherapy, don't you? 14:33:44 11 A. Correct. 14:33:44 12 Q. And you regularly tell patients about that option for 14:33:48 13 treatment, sort of talking through their problems, don't you? 14:33:53 14 A. Correct. 14:33:53 15 Q. And that's particularly true when you have someone who is 14:33:56 16 feeling down because of something that's happened in their 14:33:58 17 life, some bump or bruise that's happened in their life; 14:34:02 18 isn't that true, Doctor? 14:34:03 19 A. Correct. 14:34:03 20 Q. And in this case, this man had lost both of his -- both 14:34:06 21 his brother and that's the brother that he was going to 14:34:11 22 become a bone marrow donor for, isn't it? 14:34:14 23 A. Right. 14:34:15 24 Q. And he lost his brother and he lost his father-in-law, so 14:34:18 25 it is not unexpected that he would be down about that, is it? 1375 14:34:24 1 A. No, that's a normal grieving process. 14:34:45 2 Q. Did I understand you correctly on your direct to say one 14:34:48 3 of the reasons you give samples is because usually if people 14:34:51 4 are going to have adverse effects, that they happen in the 14:34:59 5 first few days and you want to see if the patient tolerates 14:34:59 6 the medication before they go out and spend 50 or $100 for a 14:35:02 7 whole month's supply? 14:35:03 8 A. Correct. 14:35:05 9 Q. All right. Don Schell was not anxious when you saw him, 14:35:16 10 was he? 14:35:16 11 A. No. 14:35:16 12 Q. Heart rate wasn't up? 14:35:18 13 A. No. 14:35:18 14 Q. Blood pressure wasn't elevated? 14:35:20 15 A. No. 14:35:20 16 Q. You didn't notice any tremors? 14:35:22 17 A. No. 14:35:23 18 Q. Now, these are things that you're trained to look for and 14:35:26 19 did look for, correct? 14:35:27 20 A. That's right. 14:35:29 21 Q. And he was not suicidal or homicidal as we've covered 14:35:33 22 already? 14:35:33 23 A. Correct. 14:35:36 24 Q. And when he said he tried Prozac and it wasn't good, is 14:35:40 25 that pretty much all you recollect about that? 1376 14:35:44 1 A. That's right. 14:35:46 2 Q. Now, if you were told by SmithKline Beecham that makes 14:35:53 3 Paxil there's some people that just don't tolerate SSRI drugs 14:35:58 4 well and they can have really bad effects, hallucinations or 14:36:03 5 delusions -- if you were told that would you have inquired 14:36:07 6 more deeply into the experiences that Don Schell had with 14:36:10 7 Prozac? 14:36:12 8 MR. PREUSS: Objection, Your Honor, calls for 14:36:13 9 speculation, incomplete hypothetical, no foundation. 14:36:21 10 THE COURT: Overruled. I will let the witness answer 14:36:22 11 this question. 14:36:25 12 A. It is difficult for me to answer the question. I'm not 14:36:28 13 sure how to answer. 14:36:30 14 Q. (BY MR. VICKERY) Just truthfully. If they told you that 14:36:33 15 this drug -- that SSRI drugs as a class for some people pose 14:36:39 16 a real risk of delusions or hallucinations or manic switches, 14:36:43 17 those kinds of things -- if they had told you that and you 14:36:47 18 knew this man said, "I tried Prozac and it wasn't good," 14:36:50 19 would you have probed deeper with him about, "What do you 14:36:52 20 mean, not good?" 14:36:54 21 MR. PREUSS: Objection, same objection. 14:36:59 22 THE COURT: Go ahead. Overruled. 14:37:02 23 A. I would have probed deeper. I would have asked the 14:37:04 24 reasons why he quit Prozac. 14:37:08 25 Q. (BY MR. VICKERY) All right. Now, you weren't aware, were 1377 14:37:10 1 you, that when Dr. Suhany, the psychiatrist, treated him in 14:37:17 2 1990 with Prozac that he gave him Ativan in addition to 14:37:20 3 Prozac? You didn't know that, did you? 14:37:23 4 A. No. 14:37:23 5 Q. You do know what Ativan is, don't you? 14:37:26 6 A. That's right. 14:37:26 7 Q. What is it? 14:37:27 8 A. It is a benzodiazepine derivative which is an antianxiety 14:37:31 9 hypnotic medication. 14:37:34 10 Q. If SmithKline Beecham told you that in Germany they 14:37:40 11 recommend that for patients who have insomnia or are restless 14:37:46 12 like Don Schell, that when you first start them on paroxetine 14:37:49 13 you should give them, I think, adjuvant -- you should give 14:37:55 14 them a sedative in addition to that like a benzodiazepine -- 14:37:59 15 if they had told you they recommend that in Germany, would 14:38:02 16 you have considered doing that in this case as Dr. Suhany did 14:38:05 17 with Prozac? 14:38:06 18 MR. PREUSS: Objection, no foundation, Your Honor. 14:38:09 19 THE COURT: Overruled. You may answer. 14:38:18 20 A. I usually tell patients, though, when you take the 14:38:21 21 medications, meaning the SSRIs, they usually don't help with 14:38:27 22 sleeping for the first few weeks with that kind of stuff. 14:38:34 23 So if that was the reason -- and Ambien which is -- 14:38:38 24 which is a hypnotic medication. It is not an antianxiety, it 14:38:43 25 is a hypnotic medication, because that was his main 1378 14:38:47 1 complaint, that he was not able to sleep. If patients are 14:38:51 2 just purely anxious for whatever reason, there are different 14:38:54 3 medications that -- we treat that even over here. I'm not 14:39:00 4 sure whether they would tell me or were telling me, but no, 14:39:04 5 that's the usual practice. You tell the patients if you take 14:39:06 6 the medications and if the anxiety still remains a problem, 14:39:10 7 we need to add another medication for the first few weeks or 14:39:14 8 even a longer time. 14:39:15 9 Q. I appreciate that information but I need to come back to 14:39:17 10 my question and ask you to answer it specifically. 14:39:20 11 If SmithKline Beecham had told you, as they do tell 14:39:23 12 German doctors, that if a patient is restless or has insomnia 14:39:29 13 you should give them a sedative, not just a hypnotic for 14:39:33 14 sleep but a sedative at the same time you start them on 14:39:37 15 paroxetine, would you have considered doing that? 14:39:40 16 A. If those were the recommendations, probably yes. 14:39:44 17 Q. And what would you have done different if they told you 14:39:46 18 that for some people, for some small, vulnerable 14:39:50 19 subpopulation of people this drug has been known to trigger 14:39:54 20 violence or suicide? 14:39:57 21 MR. PREUSS: Objection, no foundation. 14:39:59 22 Q. (BY MR. VICKERY) What would you have done with that 14:40:01 23 information? 14:40:01 24 MR. PREUSS: Objection, no foundation, calling for 14:40:03 25 speculation. 1379 14:40:04 1 THE COURT: Overruled. 14:40:07 2 A. I probably -- one, I would have advised the patients or 14:40:10 3 the family members that this can happen. 14:40:14 4 And second thing, probably had the patients followed 14:40:16 5 up more closely, either by telephone or personally over the 14:40:20 6 next week or two. 14:40:34 7 MR. VICKERY: I believe that's all I have. Thank 14:40:35 8 you, Dr. Patel. 9 REDIRECT EXAMINATION 14:40:56 10 Q. (BY MR. PREUSS) Doctor, if you were told by the company 14:40:58 11 that there was a small subset of the population that was 14:41:01 12 prone to getting violent with Paxil or suicidal with Paxil, 14:41:07 13 would you expect that that information would be established 14:41:10 14 scientific information, based on science? 14:41:18 15 A. Science or the pattern. 14:41:22 16 Q. And are patients that have mental illness known to be good 14:41:27 17 historians of their prior medical care? 14:41:33 18 A. It is difficult to make a judgment. 14:41:36 19 Q. Have you found men in the area -- of your practice, 14:41:41 20 particularly as they get older, are reluctant to reveal their 14:41:45 21 personal history? 14:41:48 22 A. Every patient is different. Some of us tell a lot of 14:41:52 23 stuff. Some patients hold back some things. 14:41:55 24 MR. PREUSS: Thank you, Doctor. 14:41:58 25 THE COURT: Anything else, Mr. Vickery? 1380 14:42:00 1 MR. VICKERY: No, Your Honor. 14:42:00 2 THE COURT: Mr. Preuss, anything else from this 14:42:04 3 witness? 14:42:04 4 MR. PREUSS: No, thank you. 14:42:05 5 THE COURT: May this witness be permanently excused? 14:42:07 6 MR. PREUSS: Yes, sir. 14:42:08 7 THE COURT: Thank you very much, Dr. Patel, and 14:42:10 8 you're excused from further attendance at this trial and you 14:42:13 9 may return home. 14:42:22 10 THE WITNESS: Thank you. 14:42:23 11 MR. GORMAN: Your Honor, we would call Mr. Kevin 14:42:25 12 Nelson to the stand, please. 14:43:10 13 (Witness sworn.) 14:43:10 14 THE CLERK: Please state your name and spell it for 14:43:12 15 the record. 14:43:14 16 THE WITNESS: My name is Kevin Dean Nelson, 14:43:17 17 K E V I N, D E A N, N E L S O N. 18 19 KEVIN NELSON, 20 called as a witness on behalf of the Defendant, being first 21 duly sworn, testified as follows: 22 DIRECT EXAMINATION 14:43:27 23 Q. (BY MR. GORMAN) Mr. Nelson, my name is Tom Gorman. I met 14:43:29 24 you just a few minutes ago out in the hall. Thank you for 14:43:32 25 coming down. You traveled from Gillette today, I understand. 1381 14:43:37 1 A. I came down last night. 14:43:38 2 Q. You do live in Gillette? 14:43:39 3 A. Yes, I do. 14:43:40 4 Q. And you've lived there for how long? 14:43:43 5 A. About 21 years. 14:43:46 6 Q. Okay. Are you married, sir? 14:43:48 7 A. Yes, I am. 14:43:48 8 Q. And do you have children? 14:43:50 9 A. No, I don't. 14:43:51 10 Q. What is your current employment? 14:43:54 11 A. I'm a lease operator for Barrett Resources. 14:43:58 12 Q. And tell the ladies and gentlemen of the jury what Barrett 14:44:01 13 Resources is. 14:44:02 14 A. It is a natural gas company and they do have some oil. 14:44:09 15 Q. And what do you do for them? 14:44:11 16 A. I am a lease operator. I take care of coalbed methane 14:44:15 17 wells. 14:44:16 18 Q. And how long have you been doing this kind of work? 14:44:18 19 A. This type of work with the methane, for about two and a 14:44:27 20 half years. 14:44:27 21 Q. Prior to that what type of work did you do in the oil 14:44:30 22 fields? 14:44:30 23 A. I worked for a contract pumping service. 14:44:32 24 Q. And what did you do as a contract pumper? 14:44:34 25 A. I took care of oil wells and, you know, as far as 1382 14:44:37 1 production and maintenance and basic operations of the actual 14:44:43 2 oil wells. 14:44:43 3 Q. And you do this as an independent contractor or do you 14:44:46 4 work for -- did you work for someone else? 14:44:48 5 A. I worked for a contract pumping service, Jordan 14:44:52 6 Production. 14:44:53 7 Q. Now, we've heard some testimony in the courtroom that 14:45:00 8 Mr. Don Schell was also a contract pumper? 14:45:06 9 A. That's correct. 14:45:06 10 Q. And he, however, worked for himself as an independent 14:45:08 11 contractor, true? 14:45:09 12 A. That's correct. 14:45:10 13 Q. All right. How long -- well, strike that. 14:45:12 14 Do you know Mr. Schell? 14:45:14 15 A. Yes, I do. 14:45:16 16 Q. Do you know for how long you have known Mr. Schell? 14:45:19 17 A. I met him in 1982. 14:45:22 18 Q. In connection with your work? 14:45:24 19 A. I had worked for -- it was Western Crude Oil, 14:45:28 20 Incorporated. At the time we would buy and sell oil. I was 14:45:32 21 a gauger where I actually sampled the oil to ship it. 14:45:38 22 Q. Excuse me. I'm sorry. 14:45:39 23 And how did it come to pass that you and Mr. Schell 14:45:43 24 crossed paths at that time? 14:45:45 25 A. He had worked for Cities Service at the time and we were 1383 14:45:51 1 hauling oil for Cities Service and shipping it down the 14:45:57 2 pipeline and I had met him at their field office out at 14:46:04 3 Hartzog Draw. 14:46:12 4 Q. Let me ask you a few questions here. And since you've 14:46:15 5 known Mr. Schell since about 1982, I want to ask you some 14:46:19 6 very specific questions about his mental health history and 14:46:24 7 what you know about his history. 14:46:27 8 Did you know that Mr. Schell was treated for 14:46:29 9 depression, for anger and for irritability in 1984? 14:46:33 10 A. No, I did not. 14:46:36 11 MR. VICKERY: Objection, Your Honor. Mr. Gorman 14:46:37 12 knows that this witness has no personal knowledge of any of 14:46:40 13 these matters and it is simply an attempt by counsel to 14:46:43 14 testify to facts again and again and again. This man has no 14:46:46 15 personal knowledge about these matters. 14:46:50 16 THE COURT: It is relevant evidence. Overruled. 14:46:59 17 Q. (BY MR. GORMAN) Did you know that Mr. Schell was treated 14:47:01 18 for five months in 1989 for depression and during that time 14:47:04 19 was off work for one month? 14:47:09 20 A. I had heard about it from my previous employer, from 14:47:12 21 Jordan Production, it was from Phil Jordan, that he had had a 14:47:16 22 nervous breakdown after he left Cities Service when he went 14:47:19 23 to go to work as a contract pumper for Wellstar. 14:47:32 24 Q. Was that around 1989, or do you know when that was? 14:47:32 25 A. Yeah, that would be pretty close. 1384 14:47:33 1 Q. Let me go on, then. 14:47:35 2 Did you know that Mr. Schell was treated by a 14:47:38 3 psychiatrist in Gillette, Dr. Suhany, for an entire year in 14:47:43 4 1990 and was out of work for over two months? 14:47:47 5 A. No, I did not. 14:47:49 6 Q. Did you know that Mr. Schell was treated for four months 14:47:52 7 by three different physicians for depression in 1991 and was 14:47:59 8 again out of work for one month? 14:48:01 9 A. No, I did not. 14:48:03 10 Q. Did you know that Mr. Schell was treated for depression by 14:48:06 11 a psychiatrist and a psychologist in 1993 and was again out 14:48:12 12 of work for over a month? 14:48:14 13 A. No, I did not. 14:48:16 14 Q. Did you know that Mr. Schell was -- continually sought 14:48:22 15 treatment and counseling by a Sister Agnes Claire from the 14:48:26 16 local Catholic church in Gillette from 1993 to 1996? 14:48:31 17 A. No, I did not. 14:48:36 18 Q. Now, Mr. and Mrs. Schell died February 13th of 1998. You 14:48:43 19 know that? 14:48:44 20 A. Yes. 14:48:45 21 Q. Did you have a conversation with Mr. Schell prior to -- 14:48:54 22 the week preceding their deaths? 14:48:56 23 A. Yes, I did. 14:48:58 24 Q. And do you recall or can you tell the ladies and gentlemen 14:49:03 25 of the jury when you talked to Mr. Schell that week? 1385 14:49:08 1 A. I had received a phone call because he had called and 14:49:11 2 asked if I could pump his wells, and I believe that was on a 14:49:17 3 Monday night or a Tuesday. 14:49:19 4 Q. Okay. We know Friday was the 13th of February of 1998. 14:49:26 5 So was it the preceding Monday, to your knowledge, that 14:49:31 6 you -- 14:49:32 7 A. Yes, it was. 14:49:33 8 Q. And Mr. -- tell the ladies and gentlemen of the jury again 14:49:37 9 why Mr. Schell called you. What did he ask you to do? 14:49:42 10 A. Okay. He had called me to pump his wells for a few days 14:49:48 11 and asked if I could start the very next day from when he had 14:49:51 12 called me. 14:49:52 13 Q. And what did you do in response to that call? 14:49:56 14 A. I told him I would go ahead and pump the wells, since I 14:50:01 15 worked right out in that same area that was close to where 14:50:04 16 his wells was he was taking care of. 14:50:09 17 Q. Did he ask you -- did you need to pick up some materials 14:50:13 18 from Mr. Schell? 14:50:14 19 A. Yes, he did. He asked if I could stop by his house and 14:50:18 20 pick up the production books. 14:50:20 21 Q. And why did you need to pick up the production books from 14:50:22 22 Mr. Schell? 14:50:24 23 A. It is pretty much standard so you know how much oil is in 14:50:29 24 the tanks that you will be taking care of and that way you 14:50:33 25 can also put the production into the books. 1386 14:50:35 1 Q. Did you, in fact, that Monday evening, which I believe was 14:50:38 2 the 9th of February -- did you in fact go to Mr. Schell's 14:50:44 3 home that evening to pick up those books? 14:50:46 4 A. Yes, I did. 14:50:47 5 Q. Do you remember what time it was that you went to his 14:50:51 6 home? 14:50:52 7 A. It was around 6:00 in the evening. 14:50:54 8 Q. And tell me what you recall in terms of how the house 14:50:57 9 looked when you pulled into the -- up to the Schell 14:51:02 10 residence. 14:51:03 11 A. It was pretty dark. I really didn't notice any lights 14:51:07 12 that were on. 14:51:08 13 Q. Did you ring the doorbell? 14:51:10 14 A. No, I didn't. When I pulled up in the driveway, he had 14:51:13 15 opened the garage door. 14:51:14 16 Q. And what happened when he opened the garage door? 14:51:17 17 A. He had come out to talk to me and he had a notebook that 14:51:21 18 had the production in it. 14:51:23 19 Q. Did he invite you in his home? 14:51:25 20 A. No, he did not. 14:51:27 21 Q. Tell the ladies and gentlemen of the jury what 14:51:31 22 observations, if any, you made of Mr. Schell's physical 14:51:34 23 appearance and condition at that time? 14:51:37 24 A. Oh, he looked a little bit pale and his hands were a 14:51:40 25 little bit shaky. 1387 14:51:45 1 Q. Pale enough that in the dark you could tell he was pale? 14:51:49 2 A. Oh, probably not. 14:51:50 3 Q. Could you see his hands shaking? 14:51:52 4 A. Yeah, because he had the books in his hand, the production 14:51:57 5 books that he was going to hand to me. 14:51:59 6 Q. Had you ever noticed his hands shaking like that before? 14:52:02 7 A. No, I had not. 14:52:06 8 Q. At that time did you and Mr. Schell have any conversations 14:52:10 9 about problems he had had that day in terms of being able to 14:52:16 10 get back from work, those kinds of things? 14:52:18 11 A. Yes, he did. He had made the comment that he didn't think 14:52:22 12 that he could make it back to town and he thought he might 14:52:25 13 have to call his wife out to drive him back to town. 14:52:29 14 Q. Was that something unusual in your experience with 14:52:31 15 Mr. Schell? 14:52:31 16 A. I thought it was a little unusual. 14:52:36 17 Q. Did you have any other discussion with Mr. Schell that you 14:52:38 18 recall at that time? 14:52:42 19 A. When he had made the comment, I did make the comment to 14:52:44 20 him that they had some pretty good medications out, and he 14:52:50 21 had told me that he had an appointment to go to the doctor 14:52:52 22 the following day. 14:52:53 23 Q. Any other discussions that you recall? 14:52:57 24 A. I told him one of the guys I used to work with when I was 14:53:00 25 a dispatcher for Texaco Trading, that -- I told him that he 1388 14:53:05 1 had a chemical imbalance, that he was on medication. 14:53:12 2 Q. Did Mr. Schell make any comments about giving up his job 14:53:19 3 and going with your company? 14:53:25 4 A. He had made the comment that -- he said that he had 14:53:26 5 probably thought about turning the wells over to us and then 14:53:29 6 he would just work for us as an employee. 14:53:32 7 Q. Did he ever tell you or did you have any discussion with 14:53:35 8 him why he would do that? 14:53:37 9 A. No, we didn't. 14:53:39 10 Q. How long did this conversation with Mr. Schell -- how long 14:53:46 11 was that conversation that evening on Monday? 14:53:49 12 A. It was probably 15, 20 minutes. 14:53:51 13 Q. Did you ever see Mr. Schell again? 14:53:55 14 A. No, I did not. 14:53:56 15 Q. Now, you talked to him the following morning, I think, by 14:53:59 16 phone, true? 14:54:00 17 A. Yes, I did. 14:54:03 18 Q. And tell the ladies and gentlemen of the jury what that 14:54:06 19 call was about. 14:54:07 20 A. It was just his concern on something he had forgot to tell 14:54:12 21 me about one of the oil wells. 14:54:14 22 Q. Did he call you? 14:54:15 23 A. Yes, he did. 14:54:17 24 Q. Now, after Mr. and Mrs. Schell died you were interviewed 14:54:24 25 by the authorities, true? 1389 14:54:26 1 A. Well, after I had found out about it, I drove by the house 14:54:30 2 and there was a police car setting out in front of the house. 14:54:33 3 And I had told them about it, and they told me to go down to 14:54:37 4 the police station to talk to one of the officers. 14:54:42 5 Q. And you stopped by the house and told the police officer 14:54:46 6 at the house about what? 14:54:47 7 A. That I had talked to him, I believe it was two days before 14:54:51 8 that, that I had seen him. 14:54:53 9 Q. And about the observations that you've told the folks 14:54:55 10 today? 14:54:56 11 A. That's correct. 14:54:56 12 Q. Let me show you what's -- 14:54:59 13 MR. GORMAN: This is part, Judge, of Joint 14:55:01 14 Exhibit 243. It is page 34. 14:55:10 15 Q. (BY MR. GORMAN) And you have a little monitor there. I'm 14:55:12 16 going to put it up on there. It is maybe a little easier for 14:55:16 17 you to read, Mr. Nelson. 14:55:19 18 Do you see the document? Can you read that on your 14:55:27 19 little monitor there? 14:55:28 20 A. Yes, I can. 14:55:29 21 Q. We just had some testimony from Detective Sergeant Rozier 14:55:32 22 that this is the summary of the statement that you gave to 14:55:41 23 the authorities on 2/14/98. 14:55:44 24 My question is would that be consistent with your 14:55:46 25 recollection of having spoken with the authorities on 1390 14:55:50 1 February 14th of '98, the day after Mr. and Mrs. Schell were 14:55:54 2 found? 14:56:08 3 A. Yes, that's correct. 14:56:09 4 Q. Have you had a chance to read this? I've highlighted 14:56:12 5 portions of it there. Let's do it this way, this statement 14:56:16 6 says that you said you told them approximately four years ago 14:56:27 7 you had covered or taken care of Don's wells for him when Don 14:56:31 8 had a nervous breakdown. Was that true? 14:56:34 9 A. Well, that's what I was told by my -- by Phil Jordan, my 14:56:38 10 employer. 14:56:38 11 Q. And is that something that you told the authorities? 14:56:41 12 A. Yes, I did. 14:56:44 13 Q. And then it said, "Kevin said Don had called him Tuesday 14:56:48 14 evening on the 10th." I said Monday. Was it Tuesday 14:56:55 15 evening? 14:56:57 16 A. Well, I'm not real sure on the actual day, whether it was 14:57:00 17 Monday or Tuesday. 14:57:01 18 Q. But he called you and said he needed you to pump for him 14:57:05 19 as soon as possible, true? 14:57:07 20 A. That's true. 14:57:07 21 Q. It said you went by Don's house at about 6:12 p.m. to pick 14:57:12 22 up the books. Is that consistent with your recollection? 14:57:15 23 A. Yes. 14:57:15 24 Q. And that you noticed when you pulled up to the house that 14:57:20 25 hardly any lights were on. Do you see that? 1391 14:57:23 1 A. Yes. 14:57:23 2 Q. And is that true? 14:57:24 3 A. Yes. 14:57:26 4 Q. Then it said that you told him that you rang the doorbell 14:57:30 5 and the garage door opened. Do you remember ringing the 14:57:34 6 doorbell now? 14:57:36 7 A. Yes, I do. 14:57:38 8 Q. Okay. So you rang the doorbell and the garage door 14:57:41 9 opened? 14:57:42 10 A. Yes. 14:57:44 11 Q. And at that time you thought that the house sounded really 14:57:48 12 quiet, is that true? 14:57:50 13 A. Yeah, there wasn't any noise going on that was in the 14:57:53 14 house that I could hear. 14:57:54 15 Q. Okay. And then it says, "Kevin said that Don had the 14:57:59 16 books with him in the garage and that Don looked really pale 14:58:03 17 and had the shakes." Is that true? 14:58:08 18 A. Yes. 14:58:11 19 Q. Then it says, "Kevin said Don told him that he was feeling 14:58:15 20 really bad and feeling down." Is that true? 14:58:18 21 A. Yes. 14:58:20 22 Q. And then it says, "Don told Kevin that earlier that day he 14:58:32 23 felt he would have to call his wife and have her come out to 14:58:36 24 drive him back into town from where he was working in the oil 14:58:40 25 field." And you've told us that's true? 1392 14:58:42 1 A. Yes. 14:58:43 2 Q. How far is it to where Mr. Schell did his work in the oil 14:58:48 3 field, if you know, from Gillette? 14:58:50 4 A. From Gillette it would be about 45 to 50 miles. 14:58:54 5 Q. Is it your understanding that it is in this area of the 14:58:58 6 oil field where Mr. Schell has worked for many years? 14:59:03 7 A. Yes, that's correct. 14:59:07 8 Q. Is that one of the reasons you thought it was unusual he 14:59:14 9 was having problems getting home from that location? 14:59:17 10 A. Yes, it is. 14:59:18 11 Q. And then the report says that you also said Don made the 14:59:20 12 comment that maybe he would give Kevin these wells to work 14:59:28 13 and that Don would come to work for the company that Kevin 14:59:28 14 works for which is Jordan Production, Incorporated. Is that 14:59:38 15 true? 14:59:39 16 A. The wells would be given to Phil Jordan, the contract 14:59:42 17 pumping service. My official title was vice-president. I 14:59:46 18 was second in charge. 14:59:52 19 Q. So at least Don at that time was talking about giving his 14:59:54 20 wells to Jordan and then going to work for Jordan? 15:00:00 21 A. That's correct. 15:00:24 22 MR. GORMAN: Your Honor, could I have a moment? 15:00:26 23 THE COURT: Sure may. 15:00:27 24 MR. GORMAN: Thank you very much. I have nothing 15:00:30 25 further. 1393 15:00:31 1 MR. VICKERY: Judge Beaman, I am embarrassed. I need 15:00:33 2 to apologize to the Court and Mr. Gorman. Mr. Fitzgerald, my 15:00:37 3 colleague, had prepared to examine this witness and in the 15:00:40 4 haste of the moment I stood up and made an objection. But if 15:00:43 5 the Court will permit him to conduct the examination he 15:00:46 6 planned, I think it will move more expediently. 15:00:49 7 THE COURT: Why don't we take our afternoon recess at 15:00:55 8 this time? We will stand in recess for 15 minutes. 15:19:19 9 (Recess taken 3:00 p.m. until 3:15 p.m.) 15:19:23 10 THE COURT: Before we proceed with a witness, ladies 15:19:26 11 and gentlemen of the jury, you may already know about this, 15:19:27 12 but we're going to have a little variation in our schedule, 15:19:31 13 and we won't be having court tomorrow morning for various 15:19:37 14 reasons and so we won't be back together again until 1:15. 15:19:48 15 You all understand that? Attorneys already know about it. 15:19:52 16 Mr. Fitzgerald. 15:19:53 17 MR. FITZGERALD: Yes, Your Honor, thank you. 18 CROSS-EXAMINATION 15:19:55 19 Q. (BY MR. FITZGERALD) Mr. Nelson, let me make sure I'm 15:20:00 20 clear on a couple of things here. You never saw or heard of 15:20:05 21 Don Schell being violent, did you? 15:20:08 22 A. That's correct, I've never heard anything. 15:20:15 23 Q. Do you move that mike a little closer, mainly for me, I 15:20:19 24 suppose. 15:20:20 25 And while this is with you here, let me turn your 1394 15:20:31 1 attention to this item in your report. I want to fast 15:20:34 2 forward so I can get the machine off. "Kevin said that Don 15:20:40 3 sounded normal during that brief conversation," and this was 15:20:46 4 referring to the call from Don Schell at 7:00 a.m. the day 15:20:50 5 after you picked up the books, right? 15:20:53 6 A. That's correct. 15:20:53 7 Q. And it is also correct to say that he sounded normal? 15:20:56 8 A. Yes, it is. 15:21:28 9 Q. Let's go to this issue. You never heard of Don having any 15:21:32 10 problems with his wife or his family; isn't that true? 15:21:34 11 A. That's true. 15:21:35 12 Q. Let's see here. On this issue of when you went to the 15:21:42 13 Schell home and spoke with Don in the driveway and took the 15:21:51 14 books, there was some confusion on the direct whether that 15:21:54 15 was Monday or Tuesday. 15:21:55 16 Now, the police report says February 10 of 1998 and 15:22:06 17 we know that Thursday was February 13, so if we count back -- 15:22:11 18 Friday was the 13th, go back to the 12th is Thursday, the -- 15:22:17 19 I'm all confused -- the 12th is Thursday, the 11th is 15:22:21 20 Wednesday and the 10th would have been Tuesday. Does that 15:22:24 21 help refresh your recollection that it was on Tuesday that 15:22:27 22 you were at Don Schell's office? 15:22:29 23 A. Yes, it was on Tuesday. 15:22:30 24 Q. And one of the reasons you might know that is because you 15:22:33 25 went promptly down as a citizen to the scene and you spoke to 1395 15:22:39 1 a police officer about what you knew at a time when those 15:22:42 2 events were fresh in your mind, correct? 15:22:46 3 A. That's correct. 15:22:46 4 Q. So when the police reported your contact with them, and of 15:22:52 5 your contact the day after, like on the 14th, you were 15:22:58 6 telling them based on a memory that was only four or five 15:23:01 7 days old, right? 15:23:03 8 A. That's correct. 15:23:08 9 Q. Now, when Don called you on that Tuesday, he sounded 15:23:15 10 normal during that telephone conversation as well, didn't he? 15:23:18 11 A. Yes, he did. 15:23:22 12 Q. When you went to his home, you mentioned that he -- you 15:23:30 13 described the shakiness as a little bit of hand movements; 15:23:35 14 isn't that true? 15:23:36 15 A. Yes. 15:23:38 16 Q. His voice wasn't shaky, though, was it? 15:23:45 17 A. I don't recall. 15:23:49 18 Q. You know, Mr. Nelson, it is tough being a witness, but let 15:23:52 19 me just ask you this question. You remember when we took 15:23:55 20 your deposition we had asked you about that and the events 15:23:58 21 might have been a little fresher in your mind. It was 15:24:01 22 February, three or four months ago. Let me see if I got this 15:24:10 23 right. 15:24:11 24 You were asked then, "Was his voice shaky?" on page 15:24:14 25 17 at line 12. And you answered at line 15 saying, "I really 1396 15:24:18 1 don't think so." 15:24:20 2 Would that be accurate? 15:24:22 3 A. Yes. 15:24:27 4 Q. During that conversation on the driveway did Mr. Schell 15:24:30 5 happen to mention to you anything about getting notification 15:24:33 6 earlier that day that his retirement account was showing a 15:24:37 7 zero balance? 15:24:38 8 A. No, he did not. 15:24:40 9 Q. Now, let's clear this up. It is ordinary business in the 15:24:47 10 oil field, is it not, for you to go and get production books 15:24:54 11 from the fellow that you're relieving? 15:24:54 12 A. Yes, it is. 15:24:55 13 Q. What you have to do is you've got a job of keeping track 15:24:58 14 of what is being pumped and you have to read the gauges and 15:25:01 15 so forth so that your employer and the people they service 15:25:06 16 are getting accurate information, right? 15:25:09 17 A. That's correct. 15:25:10 18 Q. So the production books are kept and if somebody is going 15:25:13 19 to take over for you, for you, for example, they would have 15:25:17 20 to get the production books from you; isn't that correct? 21 A. That's correct. 15:25:21 22 Q. There's nothing abnormal about being asked if you could 15:25:25 23 start relieving somebody tomorrow; isn't that true? 15:25:28 24 A. No, that's not abnormal. 15:25:29 25 Q. That could happen to you this evening when you get back to 1397 15:25:32 1 Gillette? 15:25:33 2 A. That's correct. 15:25:39 3 Q. And you hope it doesn't, of course, as it will be a drive 15:25:42 4 back. 15:25:43 5 Well, let's clarify this. When Don asked you in this 15:25:47 6 ordinary transaction where you go to pick up the books, he 15:25:50 7 didn't express any urgency about that having to be done, did 15:25:55 8 he? 15:25:56 9 A. Well, he just asked if I can start pumping and was asking 15:25:59 10 what time I would be in to be able to pick them up. 15:26:04 11 Q. But as far as the word "urgency" goes, he didn't express 15:26:08 12 urgency, did he? 15:26:09 13 A. No. 15:26:10 14 Q. He didn't express that it needed to be done right away or 15:26:13 15 anything like that, did he? 15:26:15 16 A. No. 15:26:22 17 Q. Don was a talkative and friendly guy in your experience, 15:26:26 18 wasn't he? 15:26:27 19 A. Yeah, what I've been around him, just casual. 15:26:33 20 Q. All right. And he was well respected in the oil field, 15:26:36 21 correct? 15:26:37 22 A. From what I've known. 15:26:39 23 Q. So when he talked with you about maybe giving up the 15:26:45 24 contract pumping work and going to work as an employee, he 15:26:53 25 was speaking of doing that into the future, correct? 1398 15:26:56 1 A. Yeah. 15:27:01 2 Q. Now, you talked the next day, we know that. And we 15:27:07 3 reviewed the fact you already said he sounded normal. 15:27:20 4 Now, you had been around Don, as has already been 15:27:23 5 brought out, the extent of your communications with him and 15:27:26 6 so forth. 15:27:27 7 When you heard about what had happened on the radio, 15:27:31 8 you had no suspicions about who had done this act; isn't that 15:27:35 9 true? 15:27:36 10 A. I didn't have any idea. 15:27:38 11 Q. And when you heard that it was Don Schell who had done it, 15:27:43 12 you were kind of surprised, weren't you? 15:27:46 13 A. Yes, I was. 15:27:47 14 Q. And you were shocked? 15:27:48 15 A. Yes. 15:27:54 16 MR. FITZGERALD: Nothing further. Thank you, Your 15:27:56 17 Honor. 15:27:57 18 MR. GORMAN: Just very briefly, Your Honor. 19 REDIRECT EXAMINATION 15:28:05 20 Q. (BY MR. GORMAN) Don Schell -- I think you told 15:28:06 21 Mr. Fitzgerald that when you had known Don in the past he was 15:28:09 22 talkative and was friendly? 15:28:11 23 A. Yeah, just mostly casual, hi, how you doing, you know, if 15:28:16 24 you seen him anywhere. 15:28:17 25 Q. The way you saw Don Schell the night of Tuesday, the 10th, 1399 15:28:21 1 was unusual? 15:28:22 2 A. Yes, it was. 15:28:24 3 Q. And the way that Don -- the reasons why Don asked you to 15:28:29 4 come that night to pick up his books and do his pumping for 15:28:32 5 him was unusual? 15:28:38 6 A. Well, I was going to say, you get calls all the time, you 15:28:42 7 know, at short notice to come pick up the books and ask you 15:28:46 8 if you can cover and usually you never ask why. 15:28:48 9 Q. Well, did Don Schell ever ask you to cover at any other 15:28:52 10 time because he was feeling really bad and feeling down? 15:28:59 11 A. No. 15:29:00 12 Q. Or that he had problems getting home from his work site 15:29:04 13 that day? Did he ever ask you to cover for him for reasons 15:29:09 14 like that? 15:29:09 15 A. No. 15:29:11 16 MR. GORMAN: Thank you. I have nothing further, Your 15:29:14 17 Honor. 15:29:14 18 THE COURT: Mr. Fitzgerald, anything else? 15:29:18 19 MR. FITZGERALD: Just a moment, Your Honor. A 15:29:20 20 thought came to me and I'm trying to retrieve it now. 21 RECROSS-EXAMINATION 15:29:27 22 Q. (BY MR. FITZGERALD) Oh, yes. People who work as you do, 15:29:35 23 are you still in a position where you're on seven days a 15:29:39 24 week? 15:29:40 25 A. Not anymore with my new job. 1400 15:29:42 1 Q. But at the time you were working as a relief pumper here 15:29:48 2 it is 24 hours a day, 7 days a week, 365 days a year unless 15:29:53 3 you call to get some relief; isn't that true? 15:29:55 4 A. That's correct. 15:29:56 5 MR. FITZGERALD: That's all I have. Thank you. 15:29:58 6 MR. GORMAN: Nothing further, Your Honor, and I would 15:30:00 7 ask that Mr. Nelson be excused. 15:30:02 8 THE COURT: Any objection? 15:30:03 9 MR. FITZGERALD: No, Your Honor. 15:30:04 10 THE COURT: Thank you. Mr. Nelson, you're 15:30:06 11 permanently excused from attendance at this trial and you're 15:30:10 12 free to return to your home. 15:30:12 13 MR. GORMAN: At this point we would call -- we've 15:30:14 14 been referring to her as Vickie Sandau, but I understand it 15:30:19 15 is now Vickie Haynes, Your Honor. 15:30:21 16 THE COURT: Very well. 15:31:01 17 (Witness sworn.) 15:31:02 18 THE CLERK: Please state your name and spell it for 15:31:04 19 the record. 15:31:10 20 THE WITNESS: Vickie J. Haynes, 15:31:11 21 V I C K I E, J., H A Y N E S. 22 23 24 25 1401 1 VICKIE HAYNES, 2 called as a witness on behalf of the Defendant, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 15:31:20 5 Q. (BY MR. GORMAN) We've been referring to a young lady in 15:31:22 6 this courtroom as Vickie Sandau. Are you the same as Vickie 15:31:33 7 Sandau? 15:31:33 8 A. One and the same. 15:31:33 9 Q. I assume you were recently married? 15:31:34 10 A. Yes, that's correct. 15:31:59 11 Q. Tell us where you live. 15:31:59 12 A. 808 Rockwood in Gillette, Wyoming. 15:31:59 13 Q. How long have you lived in Gillette? 15:31:59 14 A. Thirty years. 15:31:59 15 Q. Darned near a native? 15:31:59 16 A. Darned near. 15:32:02 17 Q. Are you presently employed? 15:32:03 18 A. No. 15:32:03 19 Q. And when did you and Mr. Haynes get married? 15:32:08 20 A. April 1st last year. 15:32:09 21 Q. Was there -- strike that. 15:32:11 22 Do you know a lady by the name of Nita Rienits? 15:32:16 23 A. I do. 15:32:16 24 Q. And tell the ladies and gentlemen of the jury how you know 15:32:19 25 her. 1402 15:32:23 1 A. I worked for her as her assistant at First National Bank 15:32:26 2 for about five years. 15:32:28 3 Q. And you were Mrs. Rienits' assistant doing what type of 15:32:32 4 work? 15:32:37 5 A. Everything; scheduling, taking phone calls, doing reviews, 15:32:43 6 you know, answering clients' questions. 15:32:47 7 Q. What was the name of the business that you were working 15:32:50 8 for? 15:32:51 9 A. First National Bank. 15:33:20 10 Q. The bank itself? 15:33:20 11 A. Uh-huh. 15:33:20 12 Q. What was Mrs. Rienits' job? 15:33:20 13 A. She was a broker with Investment Centers of America. 15:33:20 14 Q. We heard her testify she was an investment counselor? 15:33:20 15 A. Right. 15:33:20 16 Q. Now, in connection -- strike that. 15:33:20 17 When did you work as Mrs. Rienits' assistant in this 15:33:20 18 job? 15:33:20 19 A. I started, I think, in October of '95, I'm thinking. 15:33:27 20 Q. And when did you quit that job? 15:33:29 21 A. And I left a year ago, probably a year ago exactly. 15:33:32 22 Q. So sometime in May of 2000? 15:33:36 23 A. It was probably like the first week in June. 15:33:39 24 Q. Okay. Now, in connection with your work for the 15:33:42 25 Investment Center and Mrs. Rienits, did you know Mr. and 1403 15:33:47 1 Mrs. Schell, Don Schell? 15:33:49 2 A. I did. I did. 15:33:51 3 Q. And explain or tell the ladies and gentlemen of the 15:33:54 4 jury -- just give them an idea how you knew Mr. and 15:33:57 5 Mrs. Schell. 15:33:58 6 A. Well, they were clients of Nita's and I just knew them. 15:34:03 7 They would come in and I met them, you know, while they were 15:34:06 8 in doing reviews or when they would come in to invest more 15:34:10 9 money. It seems like we saw them a lot, you know, coming and 15:34:14 10 going in the bank, and so I got to know them that way. 15:34:19 11 Then I enlisted Rita's help in buying a house in -- 15:34:23 12 would have been in September, yeah, the September right 15:34:31 13 before that February. 15:34:32 14 Q. Mrs. Rienits told us that she and you managed Mr. and 15:34:42 15 Mrs. Schell's -- some of their investments? 15:34:44 16 A. Right. 15:34:44 17 Q. Now, I understand you had a phone call with Mr. Schell the 15:34:50 18 evening of February 10th of 1998, is that true? 15:34:53 19 A. Well, I'm not sure of the date. I was thinking it was the 15:34:55 20 Wednesday before, whatever that date was, so -- 15:35:01 21 Q. The 11th? 15:35:01 22 A. I couldn't swear that it was the 10th. I was just 15:35:04 23 thinking it was that Wednesday. 15:35:05 24 Q. Mrs. Rienits testified that she had gone back through some 15:35:11 25 e-mail messages that she had about that and she pinned the 1404 15:35:15 1 date for the 10th, February 10th? 15:35:18 2 A. If that's what it says, then I was thinking it was a 15:35:20 3 Wednesday, but it could have been the day before which was 15:35:24 4 probably, what, Tuesday? 15:35:27 5 Q. Right. 15:35:28 6 A. Okay. 15:35:29 7 Q. Let me ask you, I understand that phone call involved 15:35:32 8 Mr. Schell's investments? 15:35:34 9 A. Right. 15:35:41 10 Q. Prior to that phone call had Mr. Schell ever called you 15:35:44 11 outside of work about his investments? 15:35:47 12 A. Never. 15:35:50 13 Q. And was the call that he placed to you, was that call to 15:35:53 14 your home? 15:35:53 15 A. Yes, it was. 15:35:56 16 Q. Now, Mr. Schell then calls you on the 10th of February. 15:36:03 17 What time was it, do you recall? 15:36:04 18 A. It was about 5:30. 15:36:06 19 Q. And could you tell the ladies and gentlemen of the jury 15:36:11 20 why he was calling? 15:36:12 21 A. He had gotten his statement in the mail that day and was 15:36:16 22 extremely concerned over the fact that his venture annuity 15:36:21 23 didn't state a value on it; therefore, he was thinking maybe 15:36:27 24 it was worthless. 15:36:31 25 Q. Would you describe Mr. Schell when he called you that 1405 15:36:34 1 night as angry? 15:36:38 2 A. Well, I say angry/upset in the fact that, you know, his 15:36:43 3 response to me was, "Vickie, this is Don Schell and I just 15:36:48 4 got my statement and I am really concerned." And you know, I 15:36:53 5 was laying down at the time kind of relaxing, so it just 15:36:56 6 caught me totally off guard to even have him call me at home, 15:37:00 7 was the first thing. 15:37:01 8 But I knew what he was talking about because I had 15:37:04 9 gotten those same statements in the office that day, and as 15:37:07 10 was my custom, I fingered through them just to see if I can 15:37:11 11 catch any abnormalities that the customers call about. 15:37:14 12 And I already had noticed that there was not a value 15:37:17 13 on that statement, so I knew what he was talking about. And 15:37:19 14 so I just -- I assured him it wasn't worthless and I tried to 15:37:24 15 explain to him why the statement said NA, I think, is what it 15:37:28 16 said. 15:37:30 17 Q. Based upon your experience, was Mr. Schell's call -- not 15:37:35 18 only the call, but the tone of voice that he used during the 15:37:38 19 call completely out of character for Don Schell? 15:37:46 20 A. Completely out of character for the Don Schell I knew. 15:37:48 21 Q. What did you do after the phone call with Mr. Schell? 15:37:51 22 A. Well, I didn't do anything. He had asked me if -- you 15:37:55 23 know, I assured him, I said Don, "I will call you." 15:37:58 24 I said, "It is too late for me to do anything tonight." 15:38:03 25 Because he was so upset I would have gone back to the office 1406 15:38:07 1 and called the company and done something about it. But it 2 was too late to do anything that night. And I said I would 3 take care of it the next day. 15:38:11 4 He said, "Can I call Nita?" And I said, "Well, 15:38:15 5 yeah." I gave him Nita's phone number. 15:38:19 6 Q. Did you call Nita that night about this call? 15:38:21 7 A. You know, I can't remember if I did or not. I don't 15:38:24 8 remember if I called her. 15:38:26 9 Q. Did you get back with Mr. Schell the next day? 15:38:28 10 A. Yes, I did. 15:38:29 11 Q. And did you reassure him that his account was fine? 15:38:34 12 A. Yes, I did. 15:38:37 13 Q. I'm going to show you an exhibit that's in evidence, and 15:38:44 14 it is a statement that Mrs. Rienits gave to the police 15:38:47 15 department. 15:38:48 16 MR. GORMAN: Again, Judge, this is part of Joint 15:38:51 17 Exhibit 243 and this is page 36. 15:38:59 18 Q. (BY MR. GORMAN) About this contact that you and she had 15:39:00 19 with Mr. Schell about the account, can you -- you've got a 15:39:05 20 little monitor right there by you that may be easier for you 15:39:08 21 to read. 15:39:09 22 Can you take a look at that? Have you had a chance 15:39:56 23 to look at it? 15:39:58 24 A. I don't remember calling her, but I'm thinking it would 15:40:00 25 have been my custom to do that. If she said I called her, 1407 15:40:04 1 then I must have called her and she called him. I don't 15:40:06 2 know, I thought he called her because he asked if he could 15:40:09 3 call her. And I said yes. So, you know, I don't remember 15:40:14 4 who called who. 15:40:15 5 Q. Okay. Well, now that you've read Mrs. Rienits' account 15:40:24 6 that she gave to the Gillette Police Department, is that 15:40:27 7 account that's part of that exhibit -- is that consistent 15:40:29 8 with what your recollection is now? 15:40:31 9 A. Yeah. 15:40:32 10 Q. All right. And you notice that it says that Don and Rita 15:40:41 11 are clients of hers and that she had talked to Don on Tuesday 15:40:44 12 evening. Now that would be the 10th. Does that help refresh 15:40:49 13 your recollection? 15:40:50 14 A. Well, like I said, all along I was thinking it was 15:40:52 15 Wednesday evening, but, you know, the only way I would know 15:40:56 16 that would be to look at the file and know what I wrote. And 15:40:59 17 since I don't work there anymore, that's not -- 15:41:02 18 Q. All right. 15:41:04 19 MR. GORMAN: Give me a few minutes and I may be done. 15:41:22 20 No further questions. 15:41:23 21 THE COURT: Mr. Vickery. 22 CROSS-EXAMINATION 15:41:25 23 Q. (BY MR. VICKERY) Was Mr. Schell's the only account that 15:41:27 24 showed up with no balance? 15:41:29 25 A. It was kind of an interesting situation. We had started 1408 15:41:33 1 trying to network annuities into brokerage accounts so when 15:41:37 2 the clients got their statement rather than having annuities 15:41:41 3 as a separate account, if they had a brokerage account, they 15:41:46 4 had another statement. 15:41:46 5 So at that point in time there were only like two 15:41:49 6 people we had annuities networked into brokerage accounts and 15:41:53 7 what we had found out is that if they networked it into a 15:41:56 8 brokerage account it wasn't necessarily a current value as of 15:41:59 9 the date that statement was printed. They got their 15:42:03 10 information from a statement they got from an annuity 15:42:06 11 company. 15:42:07 12 Had we known that, we would have never networked them 15:42:10 13 to begin with because that was not our goal. So in that 15:42:13 14 respect, yeah, we had one other lady that had an annuity 15:42:17 15 account networked and so there was nothing else to compare it 15:42:20 16 to. 15:42:21 17 Q. What happened with that lady? 15:42:23 18 A. Well, as far as I know, when I left there -- I don't know 15:42:26 19 if she didn't look at her statement right away or didn't pay 15:42:29 20 attention. A lot of people don't. A lot of people don't pay 15:42:32 21 attention to those things. But her account said NA, too, as 15:42:37 22 well, if I remember correctly. But I don't think we ever got 15:42:40 23 a phone call from her because she probably never paid any 15:42:43 24 attention to it. 15:42:44 25 Q. Did you make a special effort after Don Schell called it 1409 15:42:47 1 to your attention that there was this glitch in the account 15:42:53 2 to call her and tell her? 15:42:55 3 A. I don't remember if I called her or not because I kind of 15:42:57 4 knew her on a personal basis, too, and I'm thinking I would 15:43:00 5 have called her. I can't say I did for sure, but it would 15:43:03 6 have occurred to me to call Pat Nelson and say, "This is what 15:43:08 7 your statement says but this is not the way it really is," 15:43:12 8 because I know how people can be with their money, with a 15:43:15 9 right, you know. They get nervous if they notice those 15:43:19 10 things. Like I said, a lot of people don't. 15:43:21 11 Q. People are concerned about their nest egg for retirement, 15:43:25 12 aren't they? 15:43:25 13 A. Well, you know, some people, you know, put it away and 15:43:28 14 forget about it. Other people, you know, pay attention to it 15:43:32 15 on a daily basis. So it just depends on the person. I would 15:43:37 16 never -- I guess I knew which clients -- I knew which clients 15:43:44 17 I could expect to call me and be upset about something and I 15:43:45 18 knew which clients would give me a hard time and tease me 15:43:48 19 about something that might have been -- you know, I just knew 15:43:51 20 or thought I did. 15:43:52 21 Q. Did Don Schell ever call or give you a hard time at all 15:43:55 22 other than this one instance? 15:43:57 23 A. That is the first time ever. I was totally shocked to 15:44:00 24 have him call me and say, you know -- I would have never 15:44:04 25 expected Don Schell to call me and be upset/angry about 1410 15:44:09 1 anything. I would have expected him to say something to me 15:44:12 2 like, you know, "What the hell did you do with all of my 15:44:15 3 money?" or something like that in a joking fashion because 15:44:19 4 that was his demeanor. At least that's the way I knew him. 15:44:23 5 Q. Let me ask you about that. It says up here that Nita said 15:44:27 6 she knew Don as a fun-loving and outgoing person. Was that 15:44:32 7 your assessment of Don as well? 15:44:35 8 A. Yes. 15:44:45 9 Q. How about Rita Schell? What did you know her as? 15:44:49 10 A. Pretty much the same. I had enlisted her help in buying a 15:44:53 11 house in September. We had several clients that were real 15:44:56 12 estate brokers and I really liked her. She was friendly and 15:44:59 13 seemed like she would work for me. 15:45:01 14 Q. Did she work for you? 15:45:03 15 A. Yeah, she did. She did a good job. She helped me out 15:45:06 16 when I bought my house. I thought of those two as just a 15:45:09 17 very, you know, fun-loving couple. They were romantic with 15:45:15 18 each other. It was just like -- you could see that about 15:45:18 19 them. 15:45:19 20 Q. When Rita Schell was helping you with your house, were 15:45:22 21 there ever any occasions when she had to transact any 15:45:25 22 business, either over the telephone or in person after 4:00 15:45:28 23 in the afternoon? 15:45:38 24 A. I'm thinking she probably did but I can't say for sure. 15:45:42 25 We did a lot of haggling when I finally decided to buy the 1411 15:45:45 1 house we bought, so I'm sure I would have talked to her later 15:45:49 2 in the day. 15:45:49 3 Q. Did she attend to your business in a professional manner? 15:45:53 4 A. Oh, yes. 15:45:54 5 Q. At whatever hour of the day was required? 15:45:57 6 A. Oh, yes. She always brought my contracts immediately when 15:46:00 7 we were going back and forth with prices. Right away she was 15:46:04 8 there bringing them to me, having them signed and explaining 15:46:06 9 everything to me. So yeah. 15:46:14 10 MR. VICKERY: Thank you, Mrs. Haynes. Nothing 15:46:15 11 further. 15:46:16 12 MR. GORMAN: Nothing further. 15:46:18 13 THE COURT: May this witness be permanently excused? 15:46:21 14 MR. GORMAN: I would request that. 15:46:22 15 THE COURT: Thank you, Mrs. Haynes. You're excused 15:46:25 16 from further attendance at this trial. You may return home. 15:46:28 17 MR. GORMAN: I think plaintiffs have a witness they 15:46:30 18 need to put on now. 15:46:35 19 MR. VICKERY: We will now put on Peggy Deans. 15:46:37 20 THE COURT: Peggy who? 15:46:40 21 MR. VICKERY: Peggy Deans. Let me go get her. 15:47:57 22 (Witness sworn.) 15:47:57 23 THE CLERK: Please state your name and spell it for 15:47:59 24 the record. 15:48:05 25 THE WITNESS: Peg Deans, D E A N S. 1412 1 PEGGY DEANS, 2 called as a witness on behalf of the Plaintiffs, being first 3 duly sworn, testified as follows: 4 DIRECT EXAMINATION 15:48:14 5 Q. (BY MR. VICKERY) Good afternoon. 15:48:14 6 A. Good afternoon. 15:48:15 7 Q. You've been sitting around waiting for about a day and a 15:48:18 8 half to testify? 15:48:18 9 A. I have. I'm ready. 15:48:20 10 Q. We've heard your name before but tell the jury, if you 15:48:23 11 would, your relationship to Rita Schell. 15:48:25 12 A. Rita was my sister. 15:48:27 13 Q. Are you the youngest of the three? 15:48:30 14 A. I am the youngest. Well, actually we had a brother that 15:48:33 15 was younger. 15:48:35 16 Q. Housekeeping matter. Do you see this nice lady right 15:48:38 17 here. She's making a nice record for us and if you and I 15:48:41 18 talk at the same time she can't get it down. 15:48:46 19 A. Okay. Sorry. 15:48:47 20 Q. Are you -- you were the youngest of the three? 15:48:50 21 A. Sisters. 15:48:50 22 Q. Of the three girls? 15:48:51 23 A. Uh-huh. 15:48:52 24 Q. What was the age span between Rita Schell and you? 15:48:55 25 A. Rita was 12 years older. 1413 15:48:58 1 Q. And then what was the age span between you and Deborah? 15:49:02 2 A. Debbie was 12 years younger. 15:49:04 3 Q. So you were right in between the two? 15:49:07 4 A. I was right in the center. 15:49:08 5 Q. Well, were you more like a sister or an aunt? 15:49:11 6 A. To Debbie? 15:49:12 7 Q. Yeah. 15:49:13 8 A. Debbie was like a sister. 15:49:15 9 Q. And Rita? 15:49:16 10 A. Rita was like an older mom, but a sister too. 15:49:19 11 Q. What do you mean by older mom? Did you have occasions 15:49:22 12 when you were growing up when Rita would be in a maternal 15:49:26 13 role? 15:49:26 14 A. I stayed with Rita a lot when my parents were out of town. 15:49:32 15 I stayed with them when they went hunting every year, for two 15:49:37 16 weeks I stayed with them. 15:49:39 17 Q. Every year for two weeks your parents -- your parents were 15:49:43 18 Flo and Gerald, is it Reavis or Reavis? 15:49:46 19 A. Reavis. 15:49:47 20 Q. They went hunting? 15:49:48 21 A. Yes. 15:49:48 22 Q. What time of the year? 15:49:49 23 A. Fall. They went elk hunting. 15:49:51 24 Q. And when they would go out of town for two weeks you would 15:49:54 25 go stay with Don and Rita Schell? 1414 15:49:56 1 A. I would, but Rita was at the house most of the time anyway 15:50:01 2 because we kept Debbie and Mike when she was working. 15:50:10 3 Q. It sounds like you had a lot of time to interact with your 15:50:10 4 sister? 15:50:10 5 A. Yeah, I did. 15:50:10 6 Q. Were they married already? 15:50:11 7 A. They were married when I was 6. 15:50:22 8 Q. After your high school years did you marry Al? 15:50:27 9 A. Uh-huh. 15:50:28 10 Q. Now another housekeeping matter. There's no uh-huh key on 15:50:32 11 her machine. 15:50:35 12 A. Yes, ma'am -- yes, sir. 15:50:36 13 Q. That's okay. Did you move away then? 15:50:42 14 A. Actually, I went to college and became a dental hygienist 15:50:47 15 and we moved away for two years and came back to Gillette and 15:50:50 16 lived about two blocks from Rita. 15:50:52 17 Q. So how frequently would you see her then? 15:50:54 18 A. After we moved back? 15:50:55 19 Q. Yes. 15:50:55 20 A. I saw her a lot and Debbie would come up because we only 15:51:00 21 lived two blocks. 15:51:02 22 Q. Well, give us, if you would, just your description of your 15:51:06 23 sister. I mean, what kind of adjectives come to mind when 15:51:11 24 you're thinking about your sister Rita? 15:51:16 25 A. Rita? She had a big heart. She had a temper. 1415 15:51:24 1 Q. What would she do if she started losing her temper. There 15:51:29 2 was a telltale giveaway, wasn't there? 15:51:32 3 A. Her ears would wiggle. She always had short hair. When 15:51:39 4 she would get mad her ears would start to wiggle. We would 5 scramble. 15:51:44 6 Q. What else? 15:51:44 7 A. She would tell you right off the bat. When I called her 15:51:48 8 maybe an older mother, when I wanted advice, I would go to 15:51:52 9 Rita because she told me what she thought right up front. 15:51:56 10 Q. Was she like timid and controlled by her husband? 15:51:58 11 A. Rita was not timid. 15:52:01 12 Q. When Don would -- 15:52:02 13 A. Rita had my father's personality. My dad never met a 15:52:05 14 stranger, was very outspoken, and that's the way Rita was. 15:52:09 15 She never met a stranger. She could go into a group of 15:52:12 16 people and she would blossom, but she would tell you in a 15:52:17 17 minute what she thought. 15:52:18 18 Q. What if Don Schell, her husband, was with her in that 15:52:22 19 group of people? Wouldn't she just wither away and be quiet? 15:52:26 20 A. No, there's no way she would have done that. 15:52:32 21 Q. We've heard some testimony in this court from at least one 15:52:35 22 woman who never apparently was invited inside their house 15:52:39 23 that said that Don Schell was a controlling and possessive 15:52:44 24 person. Is that true? 15:52:45 25 A. I can tell you from my heart, and I don't tell you with 1416 15:52:47 1 anything else, Don was not a controlling person. To think of 15:52:52 2 that makes me mad because he was not a controlling person. 15:52:55 3 And I grew up with Don. I lived with Don a lot. He was not 15:53:00 4 a controlling person. 15:53:04 5 Q. Well, what was he like? 15:53:05 6 A. What was Don like? He loved to tell stories. He loved to 15:53:09 7 joke and tell stories. Kind of nervous, you know, but real 15:53:14 8 sensitive. When I think of Don, just a story I would tell 15:53:21 9 you is when we went to Deadwood -- we would go to Deadwood 15:53:25 10 because my mom loved to go Deadwood and play the slot 15:53:28 11 machines. When we would go to Deadwood, Rita and I would go 15:53:32 12 and I had two boys and at the time the smallest one -- well, 15:53:34 13 both of them, he would take them and go for the day. And 15:53:37 14 they would play all day at the arcade, at the whatever. 15:53:42 15 But he just had a sensitive heart. He taught J.D. 15:53:47 16 how to -- put a cup up and put candy on the cup and had him 15:53:53 17 crawling when I came. 15:53:56 18 Q. J.D. was your son? 15:53:57 19 A. He was my little son. 15:53:58 20 Q. When you went to Deadwood Don wouldn't hover right by Rita 15:54:02 21 Schell wherever she was? 15:54:03 22 A. No, huh-uh. 15:54:04 23 Q. Did you ever in all of the years that you knew them see 15:54:08 24 any instance in which Don Schell tried to impose his will on 15:54:13 25 his wife? 1417 15:54:14 1 A. Rita would not have put up with it. I mean, they had -- 15:54:19 2 Don wouldn't have done that to her and Rita wouldn't have put 15:54:22 3 up with it. I can explain that relationship. That wasn't 15:54:26 4 there. 15:54:27 5 Q. Did you ever see them quarrel at all? 15:54:30 6 A. Maybe argue, but, you know, it wasn't -- it wasn't 15:54:34 7 anything. 15:54:35 8 Q. Well, we're all married people. We know that married 15:54:38 9 people sometimes argue with one another. I mean, how would 15:54:40 10 they argue? 15:54:42 11 A. If somebody started the argument it was Rita. Rita had -- 15:54:46 12 you know, I love her dearly but she had a short temper and 15:54:50 13 she would tell you, you know, and if Don was doing something, 15:54:53 14 she would tell him. 15:54:54 15 Q. And how would he react? 15:54:56 16 A. He would argue back, but they would be on their way. 15:55:00 17 Q. Well, you mentioned that your mother and father would keep 15:55:05 18 the children? 15:55:06 19 A. Debbie and Mike. 15:55:07 20 Q. Was that because Rita was working? 15:55:09 21 A. Yeah, Rita liked to work. 15:55:12 22 Q. And how did she feel about her work? 15:55:14 23 A. Well, she always enjoyed it. When she wasn't working she 15:55:18 24 would find another job. And she usually stayed at a job 15:55:26 25 pretty long. 1418 15:55:26 1 Q. Now, how about her real estate career? Did you have 15:55:26 2 occasion to talk with her about her real estate career? 15:55:28 3 A. You know, I really didn't talk to her about her real 15:55:32 4 estate career. I knew she enjoyed it. 15:55:34 5 Q. As between work on the one hand and sort of home, family, 15:55:41 6 hearth on the other, where did her priorities lie? 15:55:44 7 A. Her priorities were her home. She loved to work because 15:55:47 8 she liked to buy clothes, but she wanted to be home. 15:55:53 9 Q. We've heard some testimony that one time she bought three 15:55:56 10 pairs of shoes? 15:55:58 11 A. She loved shoes. She had a fetish about shoes. She had 15:56:02 12 three closets of shoes. 15:56:04 13 Q. Is she the kind of woman that would buy three pairs of 15:56:07 14 shoes and then hide it from her husband? 15:56:09 15 A. As a joke. I mean, you know, we teased her about that. 15:56:13 16 There used to be a T-shirt that said the woman that had the 15:56:18 17 most shoes that -- she had the most shoes when they died won, 15:56:27 18 and that was her joke, is she loved shoes. 15:56:31 19 Q. Want some water? 15:56:57 20 Were you aware over the years that Don had periodic 15:56:59 21 bouts of depression? 15:57:00 22 A. I was. 15:57:01 23 Q. How did you become aware of that? 15:57:03 24 A. In 1986 I went through a clinical depression for a year 15:57:06 25 and was hospitalized. 1419 15:57:07 1 Q. You did? 15:57:07 2 A. I was. And Rita and Don helped me through that. And when 15:57:11 3 Don went into a depression later on I was there for him. 15:57:14 4 Q. Did he openly discuss it with you? 15:57:16 5 A. Yes. He saw it in me. 15:57:23 6 Q. When you were going through it did he encourage you to get 15:57:26 7 the professional help that you needed? 15:57:28 8 A. Actually, they had no idea what depression was at that 15:57:32 9 time and they were just scared for me. 15:57:34 10 Q. Well, when he himself then had bouts with depression, did 15:57:38 11 he seek out professional help? 15:57:41 12 A. Yes, he did. You know, especially I remember him going to 15:57:47 13 Sister CC, the counselor and she gave him scripture cards and 15:57:52 14 that's one thing we talked about because he would put the 15:57:54 15 scriptures on the cards and things and it changed the 15:57:57 16 thinking. 15:57:58 17 Q. We have heard it suggested in the opening statement at 15:58:01 18 least in this trial that he was the kind of man that would 15:58:04 19 hide things from his family and friends and would not seek 15:58:07 20 out help. 15:58:08 21 Is that true? 15:58:10 22 A. Well, it wasn't with us. It wasn't with us. I never saw 15:58:12 23 that, not with family. 15:58:19 24 MR. VICKERY: Your Honor, there's one additional 15:58:21 25 matter I want to ask her about and I've discussed it with 1420 15:58:24 1 Mr. Gorman earlier. Before I do that in the presence of the 15:58:28 2 jury, though, I would ask in this one instance for the 15:58:32 3 opportunity to discuss it with the Court at side-bar. 15:58:35 4 THE COURT: We almost made it. 15:58:37 5 MR. VICKERY: We almost did. 16:00:48 6 (Discussion out of the hearing of 16:00:50 7 the reporter and the jury.) 16:00:52 8 Q. (BY MR. VICKERY) Did you have occasion in the summer of 16:00:54 9 1997 to hear a conversation between your brother-in-law, 16:00:57 10 Donald Schell, and his wife and daughter concerning his 16:01:00 11 reaction to antidepressant medications in the past? 16:01:06 12 A. That conversation was to me. 16:01:08 13 Q. What? 16:01:08 14 A. The conversation was to me. 16:01:10 15 Q. Oh, it was to you? 16:01:11 16 A. We were sitting -- Debbie and I had gone to the movie. 16:01:14 17 MR. GORMAN: Could we have a yes or no so I can make 16:01:16 18 my record? 16:01:18 19 A. Yes. 16:01:20 20 Q. (BY MR. VICKERY) Would you please relate for us your best 16:01:22 21 recollection of that conversation? 16:01:23 22 MR. GORMAN: We would -- I would object, Your Honor, 16:01:25 23 as it is being a subject that has not previously been 16:01:28 24 designated, number one. Number two, it is hearsay. 16:01:31 25 THE COURT: Mr. Vickery. 1421 16:01:33 1 MR. VICKERY: Your Honor, I told Mr. Gorman about it 16:01:35 2 as soon as I learned about it a couple of days ago. It is 16:01:38 3 not hearsay because it is offered for the limited purpose of 16:01:41 4 showing his state of mind. 16:01:43 5 THE COURT: I will overrule the objection and let the 16:01:45 6 witness answer the question. If you would ask the question 16:01:49 7 again so that we both remember what it is. 16:01:52 8 Q. (BY MR. VICKERY) Would you please just relate for us, as 16:01:54 9 best you can recollect it, the conversation that occurred. 16:01:59 10 A. Do you want me to tell you where it came from? 16:02:02 11 Q. Sure. 16:02:03 12 A. Debbie and I had gone to the movie and we had come back 16:02:05 13 and -- do you want me to tell the whole story? 16:02:10 14 Q. Sure. 16:02:11 15 A. Debbie and I had gone to the movie and we had come back 16:02:14 16 and we were sitting on the front step, and Debbie went in the 16:02:17 17 house and Rita and Don came out and we got to talking right 16:02:20 18 after Dad died, we were talking about Dad dying and started 16:02:23 19 talking about depression. 16:02:25 20 And I was talking about antidepressants and talking 16:02:29 21 about the one that I had been on. And Don said, "That caused 16:02:36 22 me to see things." And then he said, "It scared me to 16:02:39 23 death," and he looked at Debbie and Rita and -- because 16:02:43 24 Debbie was back by then and he said, "Girls, don't ever let 16:02:53 25 that happen to me." And that's the honest to God truth. 1422 16:02:54 1 MR. VICKERY: Thank you. I pass the witness. 16:02:55 2 THE COURT: Mr. Gorman. 3 CROSS-EXAMINATION 16:03:06 4 Q. (BY MR. GORMAN) Mrs. Deans, my name is Tom Gorman. Nice 16:03:10 5 to meet you. 16:03:12 6 When your brother-in-law -- strike that. 16:03:18 7 When your brother-in-law went into a depression and 16:03:22 8 you told Mr. Vickery you were there to help him -- 16:03:25 9 A. Yes. 16:03:26 10 Q. -- do you remember when that was? 16:03:27 11 A. It was like about five or six years after I had gone 16:03:30 12 through it, and that was '86. 16:03:33 13 Q. So maybe '91? 16:03:34 14 A. Yeah, probably. 16:03:39 15 Q. Did you know about a depression that Don Schell was in and 16:03:46 16 his being treated for depression, for anger and irritability 16:03:52 17 back as far as '84? 16:03:54 18 A. No, I did not. 16:03:55 19 Q. Did you know that Don Schell was treated for five or six 16:04:00 20 months in 1989 for depression and because of that was off 16:04:06 21 work for a month? 16:04:10 22 A. That might have been the one after -- that might have been 16:04:13 23 the one after my depression. 16:04:15 24 Q. After yours? 16:04:16 25 A. Yes. 1423 16:04:17 1 Q. Okay. Let's go through these, then. 16:04:19 2 A. But the first -- the '84 I don't know because that's 16:04:23 3 before mine. 16:04:24 4 Q. Yours was when? 16:04:25 5 A. '86, '87 -- '86. 16:04:29 6 Q. And so -- and Don had his -- 16:04:32 7 A. First one in '84. 16:04:34 8 Q. Listen to me. Don had his -- the episode you were aware 16:04:38 9 of was about five years after yours? 16:04:41 10 A. Uh-huh, a few years. I couldn't tell you. You know, 16:04:46 11 four -- after mine. 16:04:49 12 Q. Well, do you have a recollection about a 1989 episode that 16:04:54 13 Don suffered? 16:04:55 14 A. If that was the one he was off of work, that was it. 16:04:58 15 Q. How about in 1990 when he was out of work again? Are you 16:05:03 16 aware of another episode in 1990? 16:05:05 17 A. I knew there was two right in there, right after. 16:05:09 18 Q. Did you know of one then in 1991? 16:05:13 19 A. Was there three? No. 16:05:15 20 Q. Did you know of one in 1993? 16:05:17 21 A. No. 16:05:18 22 Q. Did you know he was treating with a counselor at the 16:05:22 23 church for three years from '93 to '96? 16:05:24 24 A. I knew he was doing the counseling at church with the 16:05:27 25 scripture cards. 1424 16:05:29 1 Q. Now, you said you overheard Don have a conversation that 16:05:37 2 he said he was taking some medication and he saw things? 16:05:42 3 A. He told me. 16:05:44 4 Q. Okay. He told you that. Do you know if Don ever told any 16:05:54 5 of his doctors that? 16:05:57 6 A. They knew he had a reaction. 16:06:01 7 Q. Well, yeah, he got tired and he was impotent. That's the 16:06:08 8 testimony that has been here. That was his reaction. He was 16:06:13 9 on Prozac? 16:06:15 10 A. Uh-huh. 16:06:15 11 Q. Is that the medication you were on? 16:06:17 12 A. Yes, that's what I am on. 16:06:19 13 Q. You still take Prozac? 16:06:21 14 A. Yes, I do. 16:06:22 15 Q. And you've been taking Prozac for 20 years? 16:06:24 16 A. Since I was in the hospital. 16:06:27 17 Q. And it is -- it helps you? 16:06:30 18 A. It does. 16:06:31 19 Q. Okay. Now, the testimony that these ladies and gentlemen 16:06:39 20 have heard is the reaction Mr. Schell had to Prozac was that 16:06:42 21 it made him tired and he had some sexual dysfunction? 16:06:51 22 A. I couldn't tell you. 16:06:51 23 Q. Okay. 16:06:53 24 MR. GORMAN: Thank you, Mrs. Deans. I have no 16:06:55 25 further questions. 1425 16:06:56 1 THE WITNESS: Thank you. 16:06:57 2 THE COURT: Anything else, Mr. Vickery? 16:06:59 3 MR. VICKERY: No, Your Honor. 16:07:00 4 THE COURT: Thank you very much. 16:07:01 5 May this witness be permanently excused? 16:07:03 6 MR. GORMAN: Absolutely, Judge, thank you. 16:07:06 7 MR. VICKERY: Yes, please. 16:07:06 8 THE COURT: Thank you very much, Mrs. Deans. You're 16:07:08 9 excused from further attendance at this trial and may return 16:07:11 10 to your home at your pleasure. 16:07:14 11 THE WITNESS: Thank you. 16:07:17 12 MR. GORMAN: Your Honor, at this time -- I've played 16:07:22 13 a priest, a doctor. I would like to play Ronald D. Wagner 16:07:27 14 and read a deposition, Your Honor. 16:07:29 15 THE COURT: Very good. 16:07:48 16 MS. WESTBY: We're starting at page 3, line 9. 16:07:52 17 Q. "Let's start with some introductory kinds of things. 16:07:54 18 Please state your name and address for the record. 16:07:56 19 A. My name is Ronald Wagner and my address is 2419 Bluffs 16:08:02 20 Ridge Drive in Gillette. 16:08:03 21 Q. Is that your home address? 16:08:05 22 A. Yes. 16:08:06 23 Q. And what is your business address? 16:08:08 24 A. 500 Industrial Park Drive. 16:08:10 25 Q. And what's your telephone number? 1426 16:08:12 1 A. 686-5716. 16:08:16 2 Q. Have you ever had your deposition taken before? 16:08:18 3 A. No. 16:08:20 4 Q. Do you have -- and I had asked you this before the 16:08:23 5 deposition started, but for the record, do you have any 16:08:26 6 documents pertaining to Donald or Rita Schell? 16:08:29 7 A. No. 16:08:30 8 Q. Are you married, Mr. Wagner? 16:08:32 9 A. Yes. 16:08:33 10 Q. What is your wife's name? 16:08:34 11 A. Vicky. 16:08:35 12 Q. How long have you been married? 16:08:37 13 A. Twenty years. 16:08:38 14 Q. Tell me a little bit about your work history. Say, in the 16:08:41 15 last 20 years where have you worked? 16:08:46 16 A. I left the University of Wyoming and went to work for a 16:08:49 17 company called Cities Service and they're now owned by 16:08:52 18 Occidental Petroleum. I worked there until August of '91, I 16:08:56 19 guess it was. 16:08:57 20 And I left there and went to work for Amerada Hess, 16:09:02 21 A M E R A D A H E S S, in North Dakota and worked there 16:09:10 22 about a year and a half. And I went to work for Pathfinder 16:09:14 23 Energy where I'm employed now. 16:09:15 24 Q. So you're currently employed by Pathfinder Energy; is that 16:09:19 25 correct? 1427 16:09:19 1 A. Yes. 16:09:19 2 Q. How long have you worked for Pathfinder? 16:09:22 3 A. About seven years, I guess eight years. 16:09:25 4 Q. Time flies. What did you study at the University of 16:09:28 5 Wyoming? 16:09:29 6 A. Petroleum engineering. 16:09:30 7 Q. And do you have your degree? 16:09:32 8 A. Yes. 16:09:32 9 Q. What was your position with Cities Service? 16:09:34 10 A. I was an engineer. 16:09:35 11 Q. And what were your responsibilities? 16:09:38 12 A. Monitoring field performance, coming up with projects to 16:09:42 13 enhance field performance in wells, a little bit of 16:09:46 14 everything. 16:09:46 15 Q. When Cities Service became Occidental did your position 16:09:50 16 change or did it stay the same? 16:09:52 17 A. It stayed the same. 16:09:53 18 Q. What is your current job requirements or job duties with 16:09:56 19 Pathfinder? 16:09:57 20 A. Pretty much the same thing, other than I have a little 16:09:59 21 more supervisory capacities in that I supervise contract 16:10:03 22 people who work directly for us. 16:10:06 23 Q. Tell me when you first met Don Schell. I'm assuming that 16:10:10 24 you met Don Schell before you met Rita Schell; is that 16:10:13 25 correct? 1428 16:10:13 1 A. Correct." 16:10:14 2 MR. FITZGERALD: Excuse me. Was that correction 16:10:17 3 there -- where you said, "They work directly for us," didn't 16:10:23 4 that read, "They currently work for us?" 16:10:26 5 MR. GORMAN: I will read that answer. Are you 16:10:27 6 talking about line 3? 16:10:29 7 MR. FITZGERALD: Starting there. 16:10:30 8 MR. GORMAN: I will read that answer again. 16:10:32 9 A. The question was, "What is your current job requirements 16:10:34 10 or job duties with Pathfinder?" 16:10:36 11 The answer was pretty much the same thing other than, 16:10:38 12 "I have a little more supervisory capacities in that I 16:10:41 13 supervise contract people that currently work for us." 16:10:45 14 MR. FITZGERALD: Thank you. 16:10:49 15 Q. "Tell me when you first met Don Schell. I'm assuming you 16:10:52 16 met Don Schell before you met Rita Schell; is that correct? 16:10:58 17 A. Correct. 16:10:58 18 Q. Tell me when you first met Don Schell. 16:11:00 19 A. That would have been shortly after I went to work for 16:11:03 20 Cities Service in Gillette. He was a field foreman in the 16:11:06 21 field we operated. 16:11:08 22 Q. And what year would that have been? 16:11:10 23 A. '81. 16:11:11 24 Q. What did you say his position was? 16:11:15 25 A. I believe he was an assistant foreman at that time. 1429 1 Q. How well did you know him in 1981? Did you spend alot of 16:11:21 2 time with him? Were you in the same area? 16:11:22 3 A. Well, his field office was south of Gillette. Our office 16:11:25 4 was here in town. So not very well other than just maybe 16:11:30 5 talking to him over the phone. I believe I don't -- I don't 16:11:34 6 believe I took care of some of the wells in his area. I was 16:11:38 7 in a different part of the field but knew of him because he 16:11:41 8 was working in the field. 16:11:43 9 Q. How often would you say that you talked to him, either on 16:11:45 10 the phone or in person? 16:11:47 11 A. Maybe once a month. 16:11:49 12 Q. What was your impression of him when you first met him or 16:11:51 13 first started talking to him in 1981? 16:11:54 14 A. He came across to me as a very professional person." 16:11:59 15 MR. FITZGERALD: Was that a correction? 16:12:02 16 MR. GORMAN: Mine is corrected, yes. 16:12:05 17 MR. FITZGERALD: Pardon me. 16:12:06 18 Q. "Did you view him as being friendly and easy to talk to or 16:12:10 19 maybe professional in a way that he was all work and no play? 16:12:14 20 A. I felt he was professional. I think he wasn't all work, 16:12:18 21 but he also, you know -- you can carry on a conversation 16:12:22 22 about activities other than work, sports. 16:12:25 23 Q. Did that type of relationship then where you just talked 16:12:28 24 to him maybe once a month continue for a certain amount of 16:12:33 25 time during the time you both worked for Cities Service and 1430 16:12:36 1 Occidental or was there a time when you spent more time with 16:12:39 2 him during that period? 16:12:40 3 A. It was about the same. I think the time we spent together 16:12:44 4 working up here in Gillette for Cities or Occi maybe it was a 16:12:51 5 monthly deal sometimes, maybe not quite as obvious depending 16:12:54 6 on what part of the field I worked in and he worked in. 16:12:59 7 Q. Would that have been true all the way up to 1991 when you 16:13:02 8 left Occidental? 16:13:03 9 A. Yes. 16:13:04 10 Q. Did you know him on a social basis outside of work? 16:13:06 11 A. No, not really, not during that period, maybe other than 16:13:09 12 activity or office functions. 16:13:11 13 Q. What kind of office functions did you attend at Cities 16:13:15 14 Service/Occidental? 16:13:18 15 A. Just like Christmas parties, award banquets, things of 16:13:22 16 that sort. 16:13:24 17 Q. How many office functions were there a year, about? 16:13:26 18 A. Two or three maybe. 16:13:28 19 Q. Did you always see Don Schell at those functions? 16:13:31 20 A. Not always. 16:13:32 21 Q. Did you ever see Don and Rita Schell together at those 16:13:35 22 functions during that time period? 16:13:36 23 A. If he was there, she was usually there. 16:13:39 24 Q. What was their relationship like as you observed it? 16:13:43 25 A. During that time, you know, I didn't know them personally 1431 16:13:46 1 outside the office that well, so they seemed to get along 16:13:51 2 together whenever I saw them. 16:13:53 3 Q. Okay. Let's talk about the time period after '91 when you 16:13:56 4 left Occidental. When did -- did you have any contact with 16:14:00 5 Don or Rita from the time you left Occidental until the time 16:14:07 6 that Don came to work for you or for the company you were 16:14:07 7 working for? 16:14:08 8 A. Just maybe in the month or two prior to when they -- that 16:14:11 9 all transposed. 16:14:13 10 Q. And when would that have been? When did he come to work 16:14:16 11 for Pathfinder? 16:14:17 12 A. I was working for a company at the time, kind of a 16:14:21 13 joint -- Pathfinder and company called Wellstar Corporation 16:14:25 14 went together and bought a group of these properties and they 16:14:30 15 were properties that Don had taken care of as a foreman for 16:14:34 16 Occidental. 16:14:35 17 And Wellstar was already a bonded corporation in the 16:14:38 18 state of Wyoming as an oil and gas operator, so they became 16:14:43 19 the operator of these wells and I was basically the engineer. 16:14:48 20 I was working for Pathfinder, but I also did some work for 16:14:52 21 Wellstar. So it was Wellstar, he came to work for Wellstar 16:14:57 22 at the time. 16:14:58 23 And we have since split up and done some things 16:15:01 24 differently, but I was working for Wellstar as well, not 16:15:06 25 really as a direct employee of them, but -- I don't want to 1432 16:15:11 1 say consultant, but kind of. 16:15:13 2 But anyway, that was in March of 1993 is when I 16:15:17 3 believe that he went to work for us, so the month prior to 16:15:20 4 that or six weeks prior to that is when we visited with him 16:15:23 5 on getting the transition and whatnot done. 16:15:26 6 Q. Let me back up a little bit. Did you have -- were there 16:15:29 7 any problems for you, for your position when Cities Service 16:15:32 8 became Occidental? Did you leave the company when it became 16:15:35 9 Occidental or did you have any problems during that 16:15:42 10 transition? 16:15:42 11 A. No, basically they changed the name on the door. That was 16:15:45 12 about it. Everybody else pretty much stayed the same. 16:15:49 13 Q. Do you know about Don Schell's position with Occidental? 16:15:52 14 Do you know if there was any positive or negative 16:15:54 15 ramifications to him because of the changeover? 16:15:57 16 A. I don't, because that was -- we were all on the same -- we 16:16:00 17 were all on the same little company up here. It was two 16:16:04 18 different entities. He was in the field and we were in the 16:16:06 19 office and a lot of times we didn't know a lot of things 16:16:10 20 other than just the business stuff and whatnot that went on 16:16:13 21 in the fields. 16:16:15 22 Q. Tell me how you came to -- was it you that contacted Don 16:16:18 23 about working for Wellstar? 16:16:20 24 A. Yes. 16:16:20 25 Q. And tell me how that came about. 1433 16:16:22 1 A. Well, we took over the wells. They had some people, 16:16:26 2 personnel working for them that -- field people, pumpers, 16:16:31 3 lease-type operators, people that were not going to stay and 16:16:35 4 wanted to get into a different line of work. 16:16:38 5 And Don didn't really want to leave Gillette, and I 16:16:41 6 know he had been offered a position elsewhere within Occi, I 16:16:46 7 believe, and so we had some openings for some contract people 16:16:49 8 in the field. 16:16:52 9 So it worked out that he wanted to stay here and 16:16:55 10 didn't really want to leave Gillette, and we needed some 16:16:57 11 people. So it worked out pretty good. And being he had been 16:17:01 12 taking care of the wells for the couple of years or whatever 16:17:04 13 for Occidental, it was a perfect fit for both of us. 16:17:09 14 Q. How did you find out that Occidental had offered him a job 16:17:12 15 in a different location and that this would be something that 16:17:14 16 he would possibly be willing to do? 16:17:17 17 A. He and I talked about it, you know, during the transition 16:17:20 18 period. 16:17:21 19 Q. And when you say transition period, do you mean from the 16:17:24 20 time he worked for Occidental to -- 16:17:27 21 A. Well, kind of the six weeks or so prior to us taking over 16:17:32 22 operations. 16:17:33 23 Q. Did you contact him or did he contact you originally? 16:17:36 24 A. I believe I contacted him. 16:17:39 25 Q. Did you contact him at home? Was he already -- had he 1434 16:17:43 1 already left his job with Occidental at that point or was he 16:17:46 2 still employed by them? 16:17:48 3 A. He was still employed by them. 16:17:50 4 Q. Did you contact him at home or at work? 16:17:52 5 A. At work. 16:17:52 6 Q. And I guess what I'm trying to figure out is how you 16:17:55 7 became aware that he was looking at a transfer within 16:17:57 8 Occidental that he didn't really want to do that and that 16:18:00 9 this might be an option? 16:18:02 10 A. I think just visiting with him and knowing him the prior 16:18:06 11 time that I've worked for Occidental, that we talked about 16:18:09 12 that. And he knew some of his people were leaving and 16:18:13 13 weren't going to stay on doing the same job they were doing, 16:18:17 14 pumping or contract operating jobs. So something, I think, 16:18:21 15 you know, he kind of expressed to us that he might want to 16:18:24 16 do. He said he did not like to go someplace else. 16:18:33 17 Q. Okay. How many times during this transition period, you 16:18:35 18 know, couple of months did you talk to Don? 16:18:37 19 A. Probably once every couple weeks maybe. 16:18:49 20 Q. You said he started working for Wellstar in about March of 16:18:49 21 '93; is that correct? 16:18:49 22 A. Correct. 16:18:49 23 Q. After he began working at Wellstar -- let me ask you 16:18:52 24 another question. From 1993 until the time of his death did 16:18:55 25 his position stay the same? Did his job duties and all of 1435 16:18:58 1 those things stay the same? 16:18:59 2 A. Yes. 16:19:00 3 Q. Were you in a supervisory capacity over him? 16:19:02 4 A. Yes. 16:19:03 5 Q. Were you his direct supervisor? 16:19:06 6 A. He is a contract employee and my job was to take care 16:19:10 7 of -- oversee what the contract employees do. He was not the 16:19:14 8 only one that we had working for us at that time in that 16:19:20 9 position. We have numerous different fields that we take 16:19:22 10 care of. 16:19:22 11 Q. And during that time from 1993 until the time of his 16:19:25 12 death, how much contact did you have with him in the work 16:19:29 13 capacity? 16:19:30 14 A. We probably visited -- if everything was going fine, I 16:19:35 15 probably wouldn't talk to him but once every couple of weeks. 16:19:39 16 And if we had problems in the field, it might be daily for a 16:19:42 17 short period of time. 16:19:45 18 Q. Can you describe for me what his job duties were? 16:19:48 19 A. He basically would go out and gauge the oil tanks and make 16:19:51 20 sure all of the equipment is running, make sure the oil got 16:19:55 21 sold. We had minor things that -- workover, rig running, 16:20:00 22 roustabout crew running that he might oversee, making sure 16:20:05 23 they were running, making sure they were doing his little job 16:20:08 24 right. His background gave him a little more flexibility 16:20:11 25 than some of the others. 1436 16:20:12 1 Q. What was his compensation package? How was he 16:20:16 2 compensated? 16:20:17 3 A. He was paid on a per-well basis, per-well per-month basis. 16:20:21 4 Q. Do you know what that was? 16:20:22 5 A. 300 a well per month. 16:20:24 6 Q. And did that remain the same from '93 until his death? 16:20:27 7 A. Yes. 16:20:28 8 Q. And how many wells did he -- was he in charge of? 16:20:31 9 A. I believe it was around 15. We don't have that field 16:20:34 10 anymore so I don't remember. 16:20:37 11 Q. Do you know generally what his work hours would have been? 16:20:40 12 A. I believe he usually left fairly early in the morning, 16:20:44 13 6:00-ish or 6:30. As long as everything was running fine we 16:20:50 14 really didn't tell them what time they have to be there, just 16:20:53 15 every day. 16:20:53 16 Q. Do you mean every day during the week or during the 16:20:56 17 weekends too? 16:20:57 18 A. 365 days a year we have to have someone there. 16:21:01 19 Q. That doesn't give you a lot of breaks, so I'm assuming if 16:21:05 20 that's 365 days a year that maybe on some type of regular 16:21:09 21 basis did he have somebody that covered those wells for him? 16:21:12 22 A. Yeah, I believe he had someone else here in town that 16:21:14 23 would -- they called relief for him, you know, if he wanted 16:21:18 24 to take a week off or weekend off or whatever. 16:21:21 25 Q. Do you know who that was? 1437 16:21:23 1 A. I believe it was someone with Jordan Production Service 16:21:27 2 and I don't know who in there, if they rotated or whatever, 16:21:31 3 rotated people in there or not. 16:21:33 4 Q. Do you know Kevin Nelson? 16:21:35 5 A. I know of him. 16:21:36 6 Q. Was he -- 16:21:37 7 A. He was one of them, I believe, that was relief from time 16:21:41 8 to time for Don. If he was in the area pumping some other 16:21:44 9 wells for other companies. 16:21:47 10 Q. But it could have also been other people from Jordan 16:21:51 11 Production? 16:21:51 12 A. Yes. 16:21:52 13 Q. Can you give me an idea generally -- I know there was some 16:21:59 14 periods when he was off work for a more significant period of 16:22:02 15 time, but do you know generally how often he called in 16:22:06 16 someone else to cover his wells for him? Was that regular? 16:22:09 17 A. No, not regular at all. I don't know how many years it 16:22:12 18 has been since the time he started working for us but it 16:22:15 19 wasn't very often. He may take a weekend or two here or 16:22:19 20 there, but it wasn't very often. I know he worked quite a 16:22:22 21 bit most of the time. 16:22:23 22 Q. Can you give me an idea like per month how many days 16:22:26 23 generally he would take, or per year? 16:22:28 24 A. Maybe two weeks on a yearly basis. 16:22:31 25 Q. Generally what kind of, I guess, contractor was he? Was 1438 16:22:34 1 he reliable, all of those kind of things? 16:22:37 2 A. He was very reliable. He did his job and made the wells 16:22:42 3 when he was supposed to make them and if there was any 16:22:45 4 problems, he was very good about reporting any problems so we 16:22:49 5 could take care of them. 16:22:50 6 Q. Do you recall any times during the years he was a contract 16:22:53 7 employee when he was off for a significant period of time, 16:22:56 8 and by significant I mean more than a couple of days at a 16:22:59 9 time? 16:23:00 10 A. There was a couple instances that he was off probably more 16:23:03 11 than that. 16:23:03 12 Q. And were you aware of the reason for those more extended 16:23:06 13 absences? 16:23:07 14 A. Probably not directly, other than a couple times that it 16:23:11 15 did happen I know he wasn't feeling very well so he asked for 16:23:15 16 some extended time off. 16:23:17 17 Q. And when you say not directly, were you getting -- where 16:23:20 18 were you getting your information from? 16:23:21 19 A. From him directly. 16:23:23 20 Q. What was his explanation to you why he needed this leave 16:23:29 21 or this time off? 16:23:31 22 A. He just wasn't feeling very well and wanted some time off 16:23:36 23 not to have to worry about his duties at work. He felt that 16:23:39 24 he could get himself feeling better without having to worry 16:23:42 25 about that at the time. 1439 16:23:46 1 Q. Did he elaborate to you on what he meant by not feeling 16:23:49 2 well? 16:23:49 3 A. Not really, no. 16:23:50 4 Q. Did there come a time when you became aware of the 16:23:53 5 specifics of why he wasn't feeling well? 16:23:55 6 A. I think there was some time later on. I don't know for 16:24:00 7 sure the time frame on that. 16:24:01 8 Q. Were you aware that Don Schell suffered from depression? 16:24:04 9 A. Yes, I was. 16:24:05 10 Q. And how did you become aware of that? 16:24:07 11 A. Mainly just visiting with him, I think. After he 16:24:11 12 became -- he started working for us, I think beings we worked 16:24:16 13 together one on one a little more we became closer friends. 16:24:20 14 I mean, we became friends as well as -- I don't think I ever 16:24:23 15 felt that he was always working for me, supervisor or 16:24:28 16 employee type of deal. We became friends. 16:24:31 17 Q. Can you give me a time frame of when that could have 16:24:33 18 occurred that you became closer and he talked to you about 16:24:37 19 some of his problems? 16:24:38 20 A. Probably within the first year or so after he started 16:24:41 21 working for us. 16:24:42 22 Q. Do you remember when the first occasion occurred that he 16:24:45 23 asked for time off because he was not feeling well? 16:24:50 24 A. Right after he started working for us. 16:24:52 25 Q. Can you give me generally like a month or season when that 1440 16:24:54 1 occurred? 16:24:56 2 A. It would have been -- we took over in March of '93 and it 16:25:01 3 would have been the week that we took over that he was off. 16:25:06 4 Q. And how long was he off at that time? 16:25:08 5 A. About a month. 16:25:09 6 Q. When he was off for about a month right after he started 16:25:13 7 working for you, did he tell you a reason why he was off for 16:25:16 8 that long a period of time? 16:25:17 9 A. Not really. 16:25:19 10 Q. How long a period of time do you think it was before he 16:25:21 11 confided more in you? 16:25:23 12 A. Probably about a year. 16:25:24 13 Q. And tell me specifically what he told you. 16:25:26 14 A. I don't know if I can tell you specifically, but he 16:25:28 15 just -- 16:25:29 16 Q. It has been a long time, but whatever you can remember. 16:25:33 17 A. See, I don't know if it was specifically. He just felt 16:25:37 18 that he wasn't feeling very well and that -- and I think -- 16:25:39 19 oh, it has been a long time. He just wanted, I think, to get 16:25:44 20 everything right within the change, the changes that were 16:25:46 21 coming on. Even though they weren't big changes, I think it 16:25:50 22 was a lot for him to make it at that point, and he just 16:25:55 23 wanted some time to kind of gather everything in and make 16:25:58 24 sure that his -- he was doing the job to the best of his 16:26:02 25 ability, I believe. 1441 16:26:03 1 Q. And when you say changes, do you mean in terms of 16:26:06 2 employment changes? 16:26:07 3 A. I believe so, yeah. 16:26:09 4 Q. When was he off the next time after the first time when he 16:26:12 5 was off for the month? 16:26:14 6 A. Most of the other times it was vacations or I believe he 16:26:17 7 had a -- I don't know if it was his brother passed away or 16:26:20 8 his father, somebody up in North Dakota. He went up there 16:26:24 9 some of that -- he went up for some of that. But that was -- 16:26:29 10 but that was the most time. That was his time off for 16:26:34 11 vacations or some other family problems of that sort. 16:26:38 12 The only other time it was about the last week or so 16:26:41 13 before the tragedy, so... 16:26:44 14 Q. So we've got the last week before he died and the month 16:26:47 15 right after he started working. Are you aware of any other 16:26:50 16 times during the five years or so when he was off because he 16:26:53 17 wasn't feeling well, something that could have been related 16:26:56 18 to the depression? 16:26:57 19 A. No, not that I know of. 16:27:00 20 Q. How did you become -- you said that the way that you 16:27:04 21 became aware that when he said he wasn't feeling well he 16:27:06 22 meant in terms of being depressed or agitated or having 16:27:10 23 anxiety, something like that. Tell me about the conversation 16:27:14 24 you had or conversations you had where he told you that was 16:27:17 25 the problem. 1442 16:27:17 1 A. Okay. I'm just trying to think here. I think we just 16:27:20 2 visited a little bit about it when he came back and, like I 16:27:24 3 say, you know, we became closer. I think he just wanted to 16:27:28 4 reassure me that everything had been taken care of and 16:27:31 5 everything was going to be fine. 16:27:34 6 When he came back it was like nothing had ever 16:27:38 7 changed. 16:27:38 8 Q. Did he ever mention the word "depression" to you? 16:27:41 9 A. No. 16:27:43 10 Q. Did he mention, you know, sadness, being upset 16:27:47 11 emotionally, something like that? 16:27:48 12 A. No, I don't think so. 16:27:50 13 Q. Okay. How did you come to believe, then, that it was 16:27:54 14 related to depression? 16:27:56 15 A. Within that first month, the times we would talk up until 16:27:59 16 he told me he was leaving, just in his tone, and I met with 16:28:03 17 him a couple of times prior to him taking off. 16:28:06 18 Q. And can you be more specific about his tone? When you say 16:28:09 19 his tone, what do you mean? 16:28:16 20 A. He just -- it didn't seem like the Don Schell that I knew 16:28:16 21 the previous 10 or 12 years or whatever it was. 16:28:18 22 Q. How was he different? 16:28:20 23 A. Prior to that he seemed to be easygoing and enjoyed his 16:28:23 24 job very well and did it well. The way his tone and -- just 16:28:28 25 the way he came across, he wasn't feeling very well and 1443 16:28:31 1 didn't express that it was really a physical problem. But at 16:28:36 2 the time he really didn't go into it. 16:28:39 3 Q. So if he was easygoing and gave you that impression before 16:28:42 4 this, what impression did he give you during this time that 16:28:44 5 made you think that he was different than he had been before? 16:28:49 6 A. In his demeanor, and talking with him personally. 16:28:53 7 Q. Right. But what was it about his demeanor that seemed 16:28:57 8 different? 16:28:57 9 A. I guess he just seemed like he had other things on his 16:28:59 10 mind and felt that, you know, he really couldn't dedicate the 16:29:03 11 time that, you know, as a professional he was to do the job. 16:29:08 12 Q. Did he seem sad to you? 16:29:10 13 A. Probably not as jovial as normal, as he was normally. 16:29:15 14 Q. What about, you said his mind was on other things. Did he 16:29:19 15 appear distracted? Is that a fair adjective to describe him? 16:29:25 16 A. Maybe a little bit. 16:29:26 17 Q. What about nervous or anxious? 16:29:27 18 A. He didn't seem either one of those. 16:29:29 19 Q. What about when you saw him during that time frame? Did 16:29:32 20 he -- what was his -- was his physical appearance any 16:29:35 21 different than you had seen him before? 16:29:37 22 A. No, probably not. 16:29:38 23 Q. Did you ever notice any shaking? 16:29:40 24 A. No. 16:29:41 25 Q. What about looking more pale? 1444 16:29:43 1 A. I don't believe so, no. 16:29:43 2 Q. Did his voice ever shake when you talked to him? 16:29:46 3 A. No. 16:29:46 4 Q. When he talked to you, and I think the context you said it 16:29:50 5 in was reassuring you he was going to be able to do his job 16:29:54 6 and that he was going to be okay, was he comfortable talking 16:29:58 7 to you about the problems he was experiencing? 16:30:00 8 A. Yeah, I think so. 16:30:01 9 Q. Then you said the next time he was off work was the week 16:30:05 10 before his death. Did you notice a change in him prior to 16:30:08 11 the time he stopped working? 16:30:10 12 A. Not until he called me and told me he was going to take 16:30:13 13 some time off. 16:30:14 14 Q. How long before he called you and said he was going to 16:30:16 15 take some time off had you seen him? 16:30:19 16 A. Maybe a month. As long as things were running fine we 16:30:23 17 didn't talk very much. 16:30:24 18 Q. Do you remember specifically what he told you when he 16:30:26 19 called and said he was going to take some time off? 16:30:30 20 A. Again, he just said he wasn't feeling very well and wanted 16:30:33 21 to kind of stay at home and wanted to know if he could have a 16:30:39 22 few days off. 16:30:40 23 Q. You mentioned the words "not feeling well" several times. 16:30:44 24 Were those the words he said to you? 16:30:46 25 A. Yes. 1445 16:30:46 1 Q. And what was your understanding those words meant from Don 16:30:49 2 Schell? 16:30:50 3 A. From the second time I guess I would have to recollect it 16:30:51 4 back to the first time, and I felt that he wasn't feeling 16:30:54 5 well and was having problems somewhere personally. 16:30:58 6 Q. And what was your understanding of what those problems 16:31:00 7 were? 16:31:03 8 A. It was depression related, I think. 16:31:07 9 Q. During the time that he worked at Wellstar were you also 16:31:09 10 spending time with him socially? 16:31:11 11 A. Yes. 16:31:12 12 Q. And about how often did you spend time together? 16:31:14 13 A. Three or four times a year, maybe. 16:31:16 14 Q. And what would you do those times? 16:31:18 15 A. We had a Christmas party once a year and another 16:31:21 16 get-together once a year for the people who work for us. 16:31:25 17 Q. Anything unrelated to work? 16:31:26 18 A. We became fairly good friends and every once in a while I 16:31:30 19 would stop by their house and visit with them in the 16:31:33 20 summertimes. 16:31:34 21 Q. Did you live near the Schells? 16:31:36 22 A. Not near them. We lived in the same town. 16:31:38 23 Q. How often would you say you went to their house? 16:31:40 24 A. Mainly it was in the summertime, if the weather was nice 16:31:44 25 he might be working in the yard and we might drop by and 1446 16:31:47 1 visit with him. 16:31:50 2 Q. What was your impression of Don and Rita's relationship 16:31:52 3 after 1993 when you were working with him and spending time 16:31:55 4 with him socially more? 16:31:57 5 A. Seemed to be no changes from what I knew before. 16:31:59 6 Q. Which would have been -- and what was your impression 16:32:01 7 before? 16:32:02 8 A. I think that he had -- I think they enjoyed each other's 16:32:06 9 company very well. 16:32:07 10 Q. Did Don ever -- when he was talking to you about his 16:32:09 11 problems, when he was not feeling well, did he have an 16:32:13 12 explanation for you about why he was experiencing these 16:32:15 13 problems? 16:32:16 14 A. No. 16:32:18 15 Q. Did he ever confide in you any problems he was having 16:32:21 16 other than not feeling well? 16:32:23 17 A. No. 16:32:23 18 Q. Did he ever mention any marital problems? 16:32:25 19 A. No. 16:32:26 20 Q. What about problems with the rest of his family? 16:32:28 21 A. No. 16:32:30 22 Q. Okay. What about any problems with work? Did he ever 16:32:33 23 mention any problems with work, any concerns about his job? 16:32:36 24 A. No. 16:32:37 25 Q. What kinds of things would you and he talk about when you 1447 16:32:39 1 were together, either socially or just talking about 16:32:41 2 unrelated things at work? 16:32:44 3 A. Unrelated things? We maybe just talked about the weather, 16:32:48 4 depending what day it was. Sports season, whatever was going 16:32:55 5 on; in particular sports season. 16:32:55 6 Q. Did you ever witness or hear Don Schell getting upset or 16:32:58 7 angry? 16:32:59 8 A. No. 16:32:59 9 Q. What about any violence? Did you ever see or hear of him 16:33:03 10 getting in a bar fight, any other kind of violent behavior? 16:33:06 11 A. No. 16:33:07 12 Q. Was your wife friends with Rita? 16:33:08 13 A. Yes. 16:33:09 14 Q. Did she spend more time with Rita than you did with Don or 16:33:13 15 did you only see each other as couples? 16:33:16 16 A. Mainly couples. Once in a while they would have lunch 16:33:19 17 together but probably not any more than Don and I would talk. 16:33:22 18 Q. Do you know if Rita ever mentioned any concerns about Don 16:33:24 19 to your wife? 16:33:25 20 A. I don't believe so, no. 16:33:26 21 Q. Did Rita ever mention any concerns about Don to you? 16:33:28 22 A. No. 16:33:30 23 Q. Did you ever talk with Rita or Don about their 16:33:32 24 relationship or family? 16:33:33 25 A. No. 1448 16:33:34 1 Q. Can you give me a specific date when Don called you the 16:33:37 2 week before his death to tell you that he was going to need 16:33:40 3 some time off? 16:33:41 4 A. I believe it was a Tuesday, Monday night or Tuesday, I 16:33:45 5 believe, of that week. I don't know what specific date that 16:33:50 6 was. 16:33:50 7 Q. Did he tell you who was going to be taking over the wells 16:33:53 8 for him? 16:33:54 9 A. I believe he mentioned that Kevin was going to be taking 16:33:57 10 care of his stuff while he was off. 16:33:59 11 Q. Did he tell you how long he was going to take off? 16:34:01 12 A. No. 16:34:02 13 Q. How was his tone when he talked to you this time compared 16:34:05 14 to when you had talked to him and he was having problems 16:34:07 15 earlier on right after he started with your company? 16:34:15 16 A. His tone was probably similar. 16:34:16 17 Q. Did he seem worse to you, better to you than that time? 16:34:19 18 A. Maybe a little worse. 16:34:20 19 Q. Did he say anything to you that you found unusual or that 16:34:23 20 was a concern to you? 16:34:24 21 A. No. 16:34:25 22 Q. How long was your conversation, do you think? 16:34:28 23 A. About ten minutes, maybe. 16:34:29 24 Q. And do you remember anything else that was said during 16:34:32 25 that conversation? 1449 16:34:32 1 A. I just told him to take as long as he needed. He had a 16:34:35 2 job when he came back. 16:34:38 3 Q. Some information that we've received from other sources 16:34:41 4 indicates that there was maybe a problem with his job prior 16:34:44 5 to his death, maybe sometime fairly soon or fairly close in 16:34:49 6 time to his death where there were maybe some problems with 16:34:52 7 the company, maybe some problems with the contracts. You 16:34:56 8 aware of any potential problems with his job? 16:34:58 9 A. I sure don't. 16:34:59 10 Q. Do you know if he had any concerns about his job at that 16:35:02 11 time maybe that were unfounded or he had received from 16:35:04 12 somebody else? 16:35:04 13 A. Not that I know of, no. 16:35:06 14 Q. If you had to describe his demeanor on the telephone, what 16:35:09 15 words would you use? 16:35:10 16 A. During which time? 16:35:12 17 Q. During this time right before he died. 16:35:15 18 A. Well, he just seemed saddened and I guess depressed, for 16:35:19 19 lack of a better word. 16:35:20 20 Q. Did you ever talk to Don again after that Monday or 16:35:23 21 Tuesday? 16:35:23 22 A. No, I didn't. 16:35:24 23 Q. Did you ever go to see him during that time period? 16:35:26 24 A. No, I didn't. 16:35:27 25 Q. And is it correct that before that it would have been -- 1450 16:35:29 1 it would have maybe been a month since the last time you had 16:35:33 2 talked to him? 16:35:34 3 A. Probably. 16:35:34 4 Q. And how did you find out about what had happened? 16:35:38 5 A. The lawyer for the family had called me in the middle of 16:35:41 6 the night and had spoke of a -- that there was a tragedy and 16:35:46 7 he was concerned that -- he knew what Don did for us and 16:35:49 8 wanted to make sure that everything was going to be taken 16:35:51 9 care of in the field and I assured him that it was. 16:35:55 10 Q. Do you know which attorney that was? 16:35:56 11 A. It was Joe Hallock. 16:35:58 12 Q. And what night would that have been? 16:36:00 13 A. It was late Friday night, Saturday morning, middle of the 16:36:05 14 night type of thing. 16:36:06 15 Q. And what were your thoughts when he called and told you? 16:36:09 16 Were you surprised? 16:36:10 17 A. I was surprised. I thought, knowing what was a tragedy 16:36:15 18 was -- I -- it was one of those deals that's kind of like a 16:36:19 19 nightmare. You get calls in the middle of the night 16:36:22 20 wondering if -- I mean, even when I heard it I didn't quite 16:36:26 21 believe it, but Joe really didn't go into it so I don't 16:36:29 22 really -- I don't know really what was going on. I didn't 16:36:34 23 know if it was to Don personally or someone in his family." 16:36:41 24 MS. WESTBY: Skipping to 36, 25. 16:36:43 25 Q. "How would you describe Don and Rita's house? 1451 16:36:46 1 A. The few times we were there it was immaculate. 16:36:49 2 Q. Did you know that Don had guns in the house? 16:36:51 3 A. No, I didn't. 16:36:51 4 Q. Did you know that he owned guns? 16:36:53 5 A. No. 16:36:53 6 Q. Did Don ever mention suicidal feelings when he was talking 16:36:56 7 to you about his problems? 16:36:57 8 A. No, he didn't. 16:36:59 9 Q. Did you and your wife ever use Rita Schell as a real 16:37:02 10 estate agent? 16:37:02 11 A. Yes. 16:37:03 12 Q. And on how many occasions did she work in that capacity 16:37:06 13 for you? 16:37:07 14 A. Probably a couple, two. 16:37:10 15 Q. How did that relationship work? 16:37:11 16 A. It was fine. She kind of knew what we wanted so she was 16:37:15 17 always willing to find whatever we were looking for at the 16:37:19 18 time. 16:37:19 19 Q. Were you involved in a real estate transaction with her 16:37:22 20 within a few weeks or months prior to the deaths? 16:37:31 21 A. It had been quite a few months before that, probably. 16:37:31 22 Q. And did that involve a new construction home being built 16:37:33 23 by Tonn Construction? 16:37:35 24 A. Yes. 16:37:35 25 Q. Did you put in an offer and sign an offer for that home? 1452 16:37:40 1 A. Yes, we did, contingent upon selling our own home. 16:37:43 2 Q. Were you subsequently released from that contract? 16:37:46 3 A. Because they had another offer, I believe, on that house 16:37:48 4 and we hadn't sold our house, so everything was kind of null 16:37:51 5 and void then. 16:37:53 6 Q. Were you upset about how this transaction proceeded, about 16:37:57 7 anything about this transaction? 16:37:59 8 A. Of course we didn't have our house sold. We were a little 16:38:03 9 upset we didn't have our house sold and lost the transaction, 16:38:08 10 but it is not like we were out on the street, so... 16:38:11 11 Q. Were there any problems with Tonn Construction where Tonn 16:38:14 12 Construction felt like you had not complied with your 16:38:17 13 requirements under the contract? 16:38:19 14 A. That would be up to them to answer, I would assume. 16:38:22 15 Q. Did they ever give you that impression or did Rita ever 16:38:25 16 give you that impression from them? 16:38:26 17 A. Not that I know of. 16:38:28 18 Q. Were you aware of any impending or threatened litigation 16:38:31 19 from Tonn Construction? 16:38:33 20 A. Yes. 16:38:33 21 Q. And tell me about that. 16:38:36 22 A. The time frame that that happened, I don't know how the 16:38:38 23 final paperwork came out of the people who eventually bought 16:38:42 24 the house, but I think that they thought that they, in the 16:38:45 25 time frame that we were going to do the deal until they 1453 16:38:49 1 closed the deal -- I think they felt they lost some money on 16:38:53 2 the deal in the housing market at the time. 16:38:55 3 Q. So while they were holding the house for you, they felt 16:38:58 4 like they had lost some money? 16:39:00 5 A. Right. 16:39:00 6 Q. And were you -- did you tell Tonn Construction that you 16:39:04 7 were potentially going to be able to get money from your 16:39:06 8 father to cover any time frame between the time you sold your 16:39:09 9 house to the time you bought the new house? 16:39:12 10 A. The only problem was that my father was probably going to 16:39:16 11 be a cosigner on the loan. 16:39:18 12 Q. And that fell through? 16:39:19 13 A. The deal fell through. 16:39:21 14 Q. How did you become aware that there was possible 16:39:24 15 litigation or the suit was possibly going to be filed in 16:39:27 16 regard to this transaction? 16:39:28 17 A. I had some correspondence, I think, from Tonn 16:39:31 18 Construction. 16:39:32 19 Q. What did you feel -- what was Rita's role in all of this? 16:39:35 20 A. As far as litigation, I don't believe there was anything 16:39:38 21 that they had to do with it or she had to do with it. 16:39:42 22 Q. Did you feel ever at any time that she maybe had not given 16:39:45 23 you all of the information that you needed in terms of the 16:39:48 24 contract that you put on the Tonn Construction? 16:39:51 25 A. I don't think so. 1454 16:39:52 1 Q. Were you upset with her in any way about this potential 16:39:56 2 problem? 16:39:56 3 A. Which problem is that? 16:39:58 4 Q. The litigation or the house, the contract falling through. 16:40:03 5 A. There was not much she could do about the house deal 16:40:06 6 falling through. We didn't have our house sold and they had 16:40:10 7 an offer that they took. Of course we would have liked to 16:40:12 8 have moved in, but it just didn't work out that way. 16:40:15 9 Q. Were you upset with her, you know, about not selling your 16:40:19 10 house, the problems with the Tonn Construction house, 16:40:21 11 anything like that? 16:40:22 12 A. No, I think we all wanted our house sold, but it didn't 16:40:25 13 work out that way. 16:40:26 14 Q. Did you ever talk to Don about these problems? 16:40:29 15 A. No. 16:40:30 16 Q. Was suit ever filed? 16:40:31 17 A. Nope, it was not." 16:40:32 18 MS. WESTBY: And that concludes the deposition of 16:40:35 19 Ronald Wagner. 16:40:36 20 THE COURT: Thank you very much. 16:40:43 21 MR. FITZGERALD: May I confer with counsel here for a 16:40:44 22 moment, Your Honor? 16:40:46 23 THE COURT: Yes, you may. 16:41:35 24 MR. GORMAN: We have another deposition if you want 16:41:37 25 us to start reading it, Your Honor. 1455 16:41:39 1 MR. VICKERY: Your Honor, there's a problem with this 16:41:41 2 one. This is Dr. Suhany's deposition. The Court will recall 16:41:44 3 I wanted to read it in our case in chief. SmithKline Beecham 16:41:47 4 objected, said they had him lined up to be here on Monday. 16:41:49 5 If he can be here on Monday and if we're still going on 16:41:52 6 Monday, I think the jury should hear his testimony live, 16:41:55 7 particularly since we offered to read it and they objected. 16:41:58 8 MR. GORMAN: As you will recall, Mr. Vickery put on 16:42:01 9 his case a lot faster than we anticipated, and we've had 16:42:04 10 scheduling problems now with Dr. Suhany and Dr. Suhany's 16:42:08 11 testimony is critical for some of the witnesses that we had 16:42:11 12 planned later on and Mr. Vickery -- we told Mr. Vickery about 16:42:18 13 this problem several days ago. 16:42:21 14 THE COURT: Let's go ahead and present the testimony 16:42:23 15 by deposition. 16:42:25 16 MR. VICKERY: Do you have all of our parts in there, 16:42:27 17 too? 16:42:27 18 MR. GORMAN: That's the whole thing, Andy. You 16:42:30 19 designated the whole thing. 16:42:34 20 MR. VICKERY: I will read the answers. 16:42:40 21 MR. GORMAN: Misha can do it. It is our case. But 16:42:44 22 thanks. 16:42:58 23 Jan, we're beginning on page 3, line 7. 16:43:03 24 For the record, Your Honor, this is the deposition of 16:43:05 25 Mark V. Suhany, S U H A N Y, M.D., taken Tuesday, February 1456 16:43:11 1 20th, 2001, in Las Vegas, Nevada. 16:43:23 2 Q. "For the record, please state your full name and address. 16:43:23 3 A. Mark V. Suhany, M.D. and you're talking about my 16:43:25 4 professional address? 16:43:26 5 Q. Yes, that would be fine. 16:43:28 6 A. Southern Nevada Adult Mental Health Services, 6161 West 16:43:32 7 Charleston Boulevard, Las Vegas, Nevada. I think the zip 16:43:36 8 code is 89158. I think. 16:43:40 9 Q. Where is the phone number that's the easiest to reach you 16:43:43 10 from? 16:43:44 11 A. That would be the medical director's office. That's 16:43:46 12 702-486-6049. 16:43:50 13 Q. Dr. Suhany, have you ever had your deposition taken 16:43:53 14 before? 16:43:54 15 A. Yes. 16:43:55 16 Q. So you're aware, then, of the fact that the court reporter 16:43:58 17 has to take down everything we say so it is important if you 16:44:01 18 let me finish my questions before you answer and I'll do the 16:44:05 19 same for you. 16:44:06 20 Please let me know if you don't understand some of my 16:44:09 21 questions, and Mr. Vickery is here by telephone so we will 16:44:15 22 have to make sure that we speak clearly and he'll let us know 16:44:18 23 if he has a problem hearing us. 16:44:20 24 Please give me a short synopsis of your educational 16:44:24 25 background. 1457 16:44:25 1 A. I obtained my undergraduate degree at Washington 16:44:28 2 University in St. Louis in 1977. I graduated from the 16:44:31 3 University of Missouri Medical School in 1981. I completed 16:44:36 4 my residency in psychiatry at the University of Texas Health 16:44:41 5 Science Center in Dallas, Texas in 1985. 16:44:45 6 Q. And then tell me where you have been practicing since that 16:44:47 7 time and basically what you have been doing. 16:44:53 8 A. From 1985 to 1989 I was in private practice in Dallas, 16:44:57 9 Texas. From 1989 to 1991 I was in private practice in 16:45:00 10 Gillette, Wyoming. Then for about a year and a half I was 16:45:03 11 doing temporary assignments. Then since 1992 -- no, sorry -- 16:45:08 12 1993 I've been in practice here in Las Vegas, Nevada, 16:45:12 13 associated with the Southern Nevada Adult Mental Health 16:45:16 14 Service and also as an assistant professor with the 16:45:19 15 University of Nevada School of Medicine, Department of 16:45:23 16 Psychiatry. 16:45:24 17 Q. Do you have specific areas of expertise or practice areas 16:45:28 18 that you focus on? 16:45:30 19 A. I've been a general practice psychiatrist, general adult 16:45:34 20 psychiatrist throughout my career, and that's what I continue 16:45:37 21 to do. Currently I treat a very severely ill population in 16:45:41 22 the hospital. When I've been in private practice previously 16:45:44 23 I've treated adolescents as well as adults, but still 16:45:48 24 primarily focusing on adults. 16:45:50 25 Q. I have records that you sent me, approximately six pages 1458 16:45:53 1 of handwritten notes from January 16th of 1990 through 16:45:59 2 December 18th, 1990. Is that consistent with the records you 16:46:03 3 have in your file? 16:46:05 4 A. Yes, and I have the originals here today, and -- yes. 16:46:09 5 Q. I also have one letter dated February 23rd, 1990 to a 16:46:15 6 Mr. Vitrano, V I T R A N O. 16:46:19 7 A. Yes, that is also in my file. 16:46:21 8 Q. Are there any other documents in your file that pertain to 16:46:24 9 the treatment or care of Don Schell? 16:46:27 10 A. No, I don't find anything. 16:46:29 11 Q. Let's go ahead and start with the first notation that I 16:46:32 12 have which is January 16th, 1990. Is that the first note 16:46:37 13 that you have? 16:46:38 14 A. Yes, it is. 16:46:39 15 Q. And is that the first time you saw Don Schell? 16:46:42 16 A. Yes, it is. 16:46:43 17 Q. Do you know how this appointment was made? 16:46:46 18 A. I don't know for sure. The notation at the top of the 16:46:48 19 note where it says, "REF Dr. Hemphill," would refer to the 16:46:54 20 patient being, quote, referred by Dr. Hemphill who was a 16:46:58 21 general practitioner in town, in Gillette at the time. I 16:47:02 22 would expect that Dr. Hemphill suggested that Mr. Schell give 16:47:05 23 my office a call. That's the way that the bulk of my 16:47:08 24 referrals were made. 16:47:11 25 Q. How familiar were you with Dr. Hemphill? 1459 16:47:14 1 A. Not extremely familiar. I mean, he was a colleague in 16:47:17 2 town. I would see him at the meetings, occasionally at the 16:47:20 3 hospital. He would refer some patients to me. 16:47:23 4 Q. Do you know or can you tell from these records or do you 16:47:26 5 have any independent recollection if you ever talked to 16:47:32 6 Dr. Hemphill about Don Schell? 16:47:35 7 A. I cannot tell you from the record and I have no 16:47:37 8 independent recollection as to whether I did or did not. 16:47:40 9 Q. Let's start with the notes from this first visit, and if 16:47:43 10 you will, please just read to me what you have written. And 16:47:45 11 in some places you have shorthand or notations that you've 16:47:48 12 made. Please just tell me what those mean and read through 16:47:52 13 your record. 16:47:54 14 A. Oh, okay. 52-year-old, married times 2 -- I'm sorry, 16:47:59 15 married times 29 years. Wife, Rita. Two children out of the 16:48:04 16 home. Patient works as a production foreman in the oil field 16:48:11 17 since '80. That means since 1980. Wife works, notation, 16:48:15 18 since 6/89, in other words, about six months before this 16:48:19 19 appointment, for a bank. 16:48:20 20 And then I have a section entitled Problems and there 16:48:23 21 are a number of different problem areas. The first one is 16:48:25 22 job difficulties, employee cutbacks. There's a notation 33 16:48:31 23 with an arrow to 3 which would appear to mean that at 16:48:34 24 Mr. Schell's job there were 33 people working in 11 of '89 16:48:40 25 and there were only 3 people working in January of 1990. 1460 16:48:43 1 That's at least what I would expect that that notation would 16:48:46 2 mean. 16:48:47 3 Q. Okay. 16:48:48 4 A. There's an arrow back to that that points to the notation 16:48:51 5 oil field sold which I guess is the most likely explanation 16:48:55 6 for the job cutbacks and patient feels overwhelmed. No 16:49:00 7 secretary. And then there's an arrow back to fears of losing 16:49:04 8 job. That's just really a description. 16:49:07 9 Second problem area, A, December of '89, EAP -- that 16:49:14 10 stands for Employee Assistance Program, which would be a 16:49:17 11 program out of Mr. Schell's work -- an arrow to VH and the 16:49:21 12 notation in parentheses WRCC. What that means, presumably, 16:49:26 13 that the EAP referred the patient to a counselor at the WRCC 16:49:31 14 which is the Wyoming Regional Counseling Center, which was 16:49:36 15 right there in Gillette, and therapist BH who I'm sure I used 16:49:40 16 to know what the initial stood for and I'm not certain any 16:49:43 17 longer. Times 3 would mean that he saw that person three 16:49:46 18 times, which would be fairly ordinary in terms of an EAP. 16:49:50 19 Ordinarily someone gets a restricted number of visits. 16:49:53 20 And then there's a quotation which I'm -- would 16:49:56 21 assume came from the patient. His interpretation. The 16:49:59 22 counselor said, quote, "Put your head down and go to work," 16:50:04 23 end quote. Then B under 2, Dr. Hemphill and then there's 16:50:09 24 medication listed, Desyrel, 150 milligrams HS. That means at 16:50:13 25 bedtime. Plus Ativan, 1 milligram tid. That of course is 1461 16:50:19 1 shorthand for three times a day. That refers to some medical 16:50:22 2 treatment that Dr. Hemphill was giving him, it looks like, at 16:50:25 3 the time of this initial evaluation. 16:50:30 4 Q. Okay. 16:50:31 5 A. Number 3, SX, that is shorthand for symptoms and these are 16:50:34 6 listed as depression, anxious/agitated. Slash would mean 16:50:41 7 both or, you know, related theme, anxious/agitated thoughts, 16:50:45 8 quote, will I be able to perform job to their satisfaction, 16:50:49 9 end quote. A positive sign means the symptom is present, so 16:50:52 10 in that -- so that's crying spells are present. 16:50:56 11 Arrow going downward is a decrease. That's a 16:50:59 12 decrease in sleep. And an X with a bar over it means except 16:51:05 13 and the notation means decreased sleep, open parenthesis, 16:51:10 14 Ativan, means not sleeping well unless he takes Ativan. SL 16:51:14 15 is slight, slight decrease again, ATTP is shorthand for 16:51:18 16 appetite, then decreased interest, decreased sexual potency, 16:51:22 17 decreased MEM is memory, C O N C is concentration and we have 16:51:28 18 especially work. Decrease in energy and positive or the 16:51:31 19 presence of thoughts of death. 16:51:35 20 Q. Let me stop you there and ask you what you mean by that 16:51:37 21 last entry of positive thoughts of death. 16:51:42 22 A. Well, I would mean that the patient admitted that he was 16:51:45 23 thinking about dying from time to time. 16:51:51 24 Q. How does that relate to suicidal ideation, if it does? 16:51:55 25 A. Well, it can. The way that I have under -- the way that 1462 16:51:58 1 I've understood this and the way that I ordinarily record 16:52:01 2 it -- and actually there's an example farther down the 16:52:04 3 page -- is that there's kind of a progression, if you will, 16:52:06 4 from thinking about death to thinking about suicide, which is 16:52:10 5 a special kind of death, to actually having formed some kind 16:52:13 6 of intent to commit suicide to having some specific plan to 16:52:17 7 commit suicide to then having the means to carry out that 16:52:20 8 plan that's being discussed. 16:52:22 9 So on that kind of progression scale this would be 16:52:26 10 the least severe of those kinds of symptoms. 16:52:28 11 Q. If you will continue with number 4. 16:52:31 12 A. Yes, 4-A, last winter, arrow just as like A he's going to 16:52:36 13 describe it or a description. Stated that, A, is his job 16:52:41 14 okay; B, concerns about DA, would be daughter, last year of 16:52:46 15 college; C, a growth removed, and L with a circle around it 16:52:51 16 is left, so growth removed from his left eye and given 16:52:59 17 Tylenol No. 3 for pain. Tylenol No. 3 medical compound is 16:53:00 18 Tylenol with some codeine in it. Then RXN is a reaction so 16:53:05 19 it is a reaction to Tylenol 3. It is a question mark. In 16:53:09 20 other words, I wasn't certain. Then I have the notation 16:53:11 21 depressive reaction in parenthesis. 16:53:16 22 Then he was RX, that's prescribed, so prescribed 16:53:19 23 Prozac and Ativan, Dr. H. I'm assuming that means 16:53:23 24 Dr. Hemphill. HA with a circle around it with headache. 16:53:26 25 Then there's a quote, level mood, also Dr. B in 4 of '89. 1463 16:53:32 1 Dr. B, I would think, although I can't be absolutely certain, 16:53:36 2 but I would think that Dr. B refers to Dr. Bresnahan who was 16:53:40 3 another private psychiatrist in Gillette at the time, and in 16:54:03 4 fact, in 4 of '89. 16:54:05 5 A. That would have been before I myself came to Gillette but 16:54:09 6 he was already there. 16:54:12 7 Q. Okay. 16:54:12 8 A. B, also had reaction to codeine several years ago, so I'm 16:54:16 9 thinking that I'm on the right track, that he has some 16:54:19 10 reaction to the codeine. 16:54:20 11 And then 5 is ETOH, is alcohol. It says 16:54:24 12 nonsignificant. Then it says almost none since last year. 16:54:28 13 And drugs with a symbol behind it, that's a symbol for 16:54:31 14 nothing or null meaning no drugs. 16:54:35 15 Q. When you're talking about the reaction to Tylenol 3 and 16:54:38 16 then the depressive reaction, is that -- is that your notes 16:54:42 17 with regard to the Tylenol 3? 16:54:44 18 A. Yes, it is. 16:54:46 19 Q. And then if you'll continue. 16:54:48 20 A. MSE with a line under it is my shorthand for mental status 16:54:52 21 examination which is a formal examination of someone's 16:54:56 22 thinking and mood and behavior. 16:54:58 23 So it says alert, zero times 3 means oriented times 16:55:02 24 3. That means the person knows who he is, where he is and 16:55:05 25 the date. 1464 16:55:06 1 APPR is appearance/GRM. That's grooming. That's 16:55:10 2 okay. So that he presented in an ordinary fashion in terms 16:55:14 3 of his dress and hygiene. 16:55:17 4 Mood is described as depressed. Affect is the -- 16:55:20 5 that's the technical term having to do with how mood is 16:55:23 6 expressed. And I term that restricted. 16:55:26 7 No thought disorder or psychosis. SX is symptoms and 16:55:30 8 here again the notation positive ideas of death. Then S with 16:55:35 9 a line over it is without, so without suicidal 16:55:38 10 ideation/intent. 16:55:41 11 Further kind of amplifying that you had asked about 16:55:44 12 the progression before about thoughts of death and suicide, 16:55:48 13 and then MEM memory/CONC, concentration slightly decreased. 16:55:57 14 I in this context is insight, J in this context is judgment 16:56:01 15 and that was rated okay. 16:56:03 16 Q. Then if you will continue on to impression. 16:56:07 17 A. Yes, impression, number 1, major depression. That's 16:56:10 18 the -- that would be my technical diagnosis. Said at this 16:56:17 19 time to be partially responsive to MED. That would mean 16:56:20 20 medication. That would be the medication Dr. Hemphill has 16:56:24 21 prescribed. And number 2, the psychodynamic issue is lost. 16:56:30 22 Q. What would you have meant by that, do you know? 16:56:33 23 A. Well, by psychodynamic issue I would mean what kind of 16:56:37 24 emotional stressor or problem is related to and perhaps 16:56:40 25 causing the clinical symptoms of depression. And the loss 1465 16:56:44 1 just looking at the notes, primarily having to do with 16:56:49 2 employment. 16:56:50 3 Plan then was I recommended to increase his Desyrel, 16:56:53 4 which is an antidepressant, starting from 200, which is an 16:56:56 5 increase from what Dr. Hemphill had him on, up to possibly 16:57:00 6 250 milligrams a day; increasing the HS, that's the bedtime 16:57:05 7 dose, of Ativan to 2 milligrams a day if he's having trouble 16:57:11 8 sleeping. And that notation, the little symbol in therapy, 16:57:14 9 psychotherapy with me and asked him to return the following 16:57:17 10 week. 16:57:18 11 Q. I'm assuming then from the notations in the plan and from 16:57:22 12 what you have up here in 2-B that the medications that you 16:57:26 13 talk about from Dr. Hemphill are medications that he was 16:57:29 14 currently taking at the time of this visit; is that correct? 16:57:33 15 A. That's what I assume from the record, yes. 16:57:35 16 Q. Okay. 16:57:37 17 A. And then lastly, since you asked me to explain everything, 16:57:41 18 right at the bottom the MVS indicates that's the end of the 16:57:46 19 visit. That's my initials to myself telling me that's ended. 16:57:50 20 Q. Do you recall having met Rita Schell during this first 16:57:52 21 visit, and that would be Don's wife? 16:57:55 22 A. I do not. 16:57:56 23 Q. If she would have been present with him is that something 16:57:58 24 that would have been noted in your records? 16:58:06 25 A. If I had seen them together I would expect that to be 1466 16:58:06 1 noted because I ordinarily would do that. If, for example, 16:58:07 2 she had accompanied him to the office but had not accompanied 16:58:11 3 him to the actual consultation, then it would not be in the 16:58:14 4 record. And if in fact she had accompanied him to the office 16:58:17 5 and I met her, I have no recollection of that. 16:58:21 6 Q. Okay. Let's proceed on to the next note which appears to 16:58:24 7 be from my records, January 23rd of 1990. Is that consistent 16:58:30 8 with your records? 16:58:31 9 A. Yes. You want the note read again? 16:58:34 10 Q. Yes. 16:58:35 11 A. I see. Okay. Individual psychotherapy. Actually feels 16:58:39 12 worse. And then my question, too sedated with increased 16:58:43 13 Ativan and increased Desyrel. I had discussed in detail 16:58:48 14 feelings of loss associated with job, explored how his 16:58:51 15 expectations may be, quote, too high, end quote. Seems quite 16:58:55 16 interested in exploring psychological issues. RE is 16:58:59 17 regarding depression. 16:59:01 18 Medication plan as follows: Decrease Desyrel if 16:59:05 19 ineffective. Will return -- I'm sorry -- decrease Desyrel, 16:59:11 20 if ineffective will return to Prozac. I've written him a 16:59:16 21 prescription for Desyrel and Prozac and asked him to schedule 16:59:20 22 an appointment the next week, the following week. 16:59:23 23 Q. You wrote him a prescription for both Desyrel and Prozac? 16:59:27 24 A. Yes, I did. And if you want me to read it, I should have 16:59:30 25 said prescription Desyrel, 150 milligrams number 20. NR 1467 16:59:34 1 means no refill. Prescription Prozac, 2 milligrams, number 16:59:38 2 30. NR, no refill. 16:59:41 3 Q. Were those medications to be taken together? 16:59:44 4 A. According to my note, I asked him to try decreasing the 16:59:48 5 Desyrel because he had felt too sedated when we had increased 16:59:52 6 it that time, the previous week. If ineffective will return 16:59:56 7 to Prozac, so it appears to me that if the patient felt that 17:00:00 8 it was not working, that he could start -- he could restart 17:00:03 9 Prozac. 17:00:05 10 He had taken Prozac previously, according to his -- 17:00:09 11 according to his initial consultation. 17:00:12 12 Q. If you will proceed on to February 2nd, 1990. 17:00:16 13 A. Individual psychotherapy. Has switched back to Prozac. 17:00:20 14 Times 8, DA in this context is days, no relief. In fact, 17:00:25 15 anxiety increased. That's the symbol. The arrow going up is 17:00:29 16 increased. Also, C/O is for complaints, so also complains of 17:00:34 17 loss of appetite. Both of these may be side effects of 17:00:38 18 Prozac. Now off work as depression is incapacitating. 17:00:42 19 Obvious somatic anxiety today. Plan is to continue Prozac 17:00:46 20 trial. Increase Ativan to 6 MG/DA is milligrams per day as 17:00:53 21 necessary. 17:00:54 22 And then I have written him a prescription for 17:00:56 23 Ativan, 1 milligram, 50. No refill. Next appointment 2-9." 17:01:03 24 THE COURT: Mr. Gorman. Maybe we ought to stop here. 17:01:06 25 Can we do that? 1468 17:01:07 1 MR. GORMAN: Yes, Your Honor, we can. Thank you. 17:01:08 2 THE COURT: Very well. Once again, we're not going 17:01:12 3 to resume tomorrow until 1:15 p.m. 17:01:16 4 Ladies and gentlemen of the jury, please remember the 17:01:18 5 admonition of the Court, and court will stand in recess. 17:01:24 6 (Trial proceedings recessed 17:01:26 7 5:00 p.m., May 30, 2001.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1469 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 VII, contained herein, and that the 7 foregoing 235 pages constitute a full, true and correct 8 transcript. 9 Dated this 31st 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