Schulz Deposition

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1

1 STATE OF MINNESOTA DISTRICT COURT

2 COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

Case Type: Wrongful Death3 - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Court File No.4 Mary Weiss, on her own behalf, 62-CO-06-11934

and as the next of kin and trustee5 of the Estate of Dan Markingson,

deceased,6

Plaintiff,7

-vs-8

Board of Regents for the University of9 Minnesota; Dr. Stephen Olson;Dr. Charles Schulz; Institutional,

10 Review Board for the University of Minnesota;Astrazeneca Pharmaceuticals LP;

11 Astrazeneca LP and Zeneca, Inc.,

12 Defendants.

13 - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

14 Deposition of: CHARLES SCHULZ, M.D.

15 Taken at: Gislason & Hunter, LLP701 Xenia Avenue South

16 Suite 500Minneapolis, Minnesota

17Date: June 22, 2007

18Commencing at: 9:05 a.m.

19

20

21

22By JANICE L. YOUNG, RPR

2312151 Gantry Lane

24 Apple Valley, Minnesota 55124800-844-6420 * 952-431-1252

25

2

1 Video deposition of CHARLES SCHULZ, M.D., takenpursuant to Notice to Take Oral Deposition, under the


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2 Rules of Civil Procedure, for the District Courts ofMinnesota, at Gislason & Hunter, 701 Xenia Avenue

3 South, Suite 500, Minneapolis, Minnesota, commencingat approximately 9:05 a.m., on the 22nd day of June,

4 2007, before Janice L. Young, Notary Public in andfor the State of Minnesota.

5

- * -6

7 APPEARANCES:

8 R. CHRISTOPHER BARDEN, Ph.D., J.D., Esq.,GALE D. PEARSON, Esq., and STEPHEN J. RANDALL, Esq.,

9 of the law firm of Pearson, Randall & Schumacher,Suite 1025 Fifth Street Towers, 100 South Fifth Street,

10 Minneapolis, Minnesota 55402 appeared for and on behalfof Plaintiff.

11

DAVID D. ALSOP, Esq., and ANGELA M. NELSON, Esq.,12 of the law firm of Gislason & Hunter, 701 Xenia AvenueSouth, Suite 500, Minneapolis, Minnesota 55416 appeared

13 for and on behalf of Defendants Olson and Schulz.

14 RUTH FLYNN, Esq., Risk Management OperationsDirector, Suite 200, 720 Washington Avenue SE,

15 Minneapolis, Minnesota 55414 appeared for and on behalfof the University of Minnesota Physicians.

16DAVID C. HUTCHINSON, Esq., and CHARLES A. GROSS,

17 Esq., Geraghty O'Loughlin & Kenney, 1400 Ecolab UniversityCenter, 386 North Wabasha Street, St. Paul, Minnesota

18 55102-1308 appeared for and on behalf of DefendantBoard of Regents of the University of Minnesota.

19BRIDGET M. AHMANN, Esq., of the law firm of

20 Faegre & Benson, 2200 Wells Fargo Center, 90 SouthSeventh Street, Minneapolis, Minnesota 55402-3901

21 appeared for and on behalf of Defendants AstraZenecaand Zeneca.

22

23 Also Present: Mary Weiss

24 Video Technician: Bob Durland

25

3

1 I N D E X

2 PAGE

3 Examination:

4 By Dr. Barden 5


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5Exhibits REFERRED TO

6A - Curriculum Vitae-Dr. Charles S. Schulz-2/17/04 25

7 B - Curriculum Vitae-Dr. Charles S. Schulz-12/12/06 26C - July 2006 Department of Psychiatry Audit Report 56

8 D - 5/10/07 New York Times Article 60

E - 6/3/07 New York Times Article 619 F - 4/6-7/06 CME Schizophrenia Treatment Lecture 91

G - 8/3/05 AstraZeneca Results Update-David Brennan 10810 H - 10/3/06 Washington Post Article 115

I - 9/22/05 New England Journal of Medicine Article 12411 J - 9/06 University of Minnesota IRB Documents 127

K - 8/6/02 IRB Letter to Ophthalmology 17512 L - Financial Records of CAFE Study 201

M - 10/22/03 AstraZeneca Letter to Olson 20413 N - 10/17/05 Listing and Check 207

O - 12/11 and 12/19/03 Theodore I Records 21014 P - Agenda for CAFE Web-Cast Meeting w/ Attachments 212

Q - Remittance Papers and Attachments 22615 R - E-Mails and Other Correspondence 236S - Coordinator Call Minutes and Attachments 243

16 T - CAFE Coordinator Teleconference Agenda andAttachments 247

17 U - 11/7/03 Pallett E-Mail to Kenney withAttachment 258

18

19 Requests made on pages 12 and 32.

20

21

22

23

24

25

4

1 P R O C E E D I N G S

2 DR. BARDEN: Well, I guess we'll go around

3 and introduce ourselves. My name is Dr. Chris Barden,

4 and I'm here on behalf of plaintiff Mary Weiss.

5 MS. PEARSON: I'm Gale Pearson here on

6 behalf of plaintiff Mary Weiss.

7 MR. RANDALL: Stephen Randall on behalf of


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8 plaintiff Mary Weiss.

9 MS. WEISS: Mary Weiss, Dan Markingson's

10 mother.

11 MR. GROSS: Chuck Gross on behalf of the

12 University of Minnesota.

13 MS. AHMANN: Bridget Ahmann on behalf of

14 AstraZeneca.

15 MS. NELSON: Angela Nelson on behalf of

16 Dr. Schulz, Dr. Olson, and the University of Minnesota

17 Physicians.

18 MR. HUTCHINSON: David Hutchinson for the

19 University of Minnesota.

20 MS. FLYNN: Ruth Flynn, University of

21 Minnesota Physicians.

22 MR. ALSOP: David Alsop on behalf of

23 Dr. Schulz and Dr. Olson.

24 THE WITNESS: My name is Dr. Charles Schulz.

25 I'm head of the psychiatry at the University of

5

1 Minnesota.

2 DR. BARDEN: Would you like to swear the

3 witness.

4 CHARLES SCHULZ, M.D.,

5 having been duly sworn, was examined and

6 testified as follows:

7 EXAMINATION

8 BY DR. BARDEN:

9 Q Good morning, Dr. Schulz.

10 A Good morning.


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11 Q Have you ever been deposed before?

12 A Yes, I have.

13 Q How many times?

14 A I can't recollect for sure. I would say maybe ten times.

15 Q Have you ever been sued before?

16 A Yes, I have.

17 Q How many times?

18 A I recollect four times in my career.

19 Q And can you tell me the dates of those suits?

20 A I can give you an approximation of those --

21 Q Great.

22 A Of those suits.

23 Q That's fair.

24 A I was part of a suit brought around 1982 while I was on

25 the faculty at the Medical College of Virginia, and I was

6

1 sued in about 1983 also while I was on the faculty there.

2 I was sued in I think about 1986 and in 1999.

3 Q Is the 1999 suit when you were at Minnesota or --

4 A No. I was -- well, I had arrived in Minnesota in July of

5 1999, but the suit related to a case while I was at

6 Case Western Reserve University.

7 Q Can you tell me the nature of the lawsuits?

8 A Yes, I can. The first lawsuit, I was on the faculty as

9 an inpatient attending psychiatrist at the

10 Medical College of Virginia on a locked ward. I was

11 taking care of a young man referred because he had not

12 been responding -- he had the diagnosis of schizophrenia

13 and his parents indicated he'd not been responding to


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14 treatment. He was referred to our hospital, where he

15 underwent treatment for about a month and began to make

16 some improvement. I was still a consulting of the NIH

17 and went up to Washington from Virginia. The patient

18 remained in the hospital, and I think on a Friday, a

19 couple days after I left, and there had been a covering

20 psychiatrist as an attending, the patient was on what was

21 at that hospital known as a buddy pass, where people can

22 go out and walk around the hospital with another one of

23 the patients. He and this other patient went up to a

24 porch on the top floor of the hospital, and unfortunately

25 the buddy of my patient left my patient there, rather

7

1 than staying with him, and my patient stacked up some

2 chairs and jumped off the top of the building.

3 Q Okay, so that was a suicide case.

4 A That was a suicide case.

5 Q What was the outcome of that case?

6 A Well, the outcome was that the hospital was sued, I was

7 an employee of the hospital, and there was the allegation

8 that the porch was not safe, that it should have had a

9 cover, not just a fence, and so the case was settled

10 between the plaintiffs, the hospital, and me.

11 Q Okay. What was the name of the case?

12 A I believe the patient's name was Krittenbrink.

13 Q Can you spell that for me, please?

14 A Again, I can approximate it, I think.

15 Q Sure.

16 A K-r-i-t-t-e-n-b-r-i-n-k.


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17 Q Okay, and then the second lawsuit?

18 A The second case was a young man referred to the chair of

19 our department at the Medical College of Virginia. The

20 chair worked with the patient for awhile. Patient had

21 the diagnosis of schizophrenia, and because I had had

22 training at the National Institutes of Mental Health on

23 the schizophrenia ward, the chair asked if he could

24 transfer the patient to my team. We treated the patient

25 with antipsychotic medications with little result. Then

8

1 he was given an augmenting medication, propranolol, and

2 improved substantially and was released from the hospital

3 and went to day treatment. Unfortunately, a week after

4 his discharge, he was in the shower, and appears to have

5 fainted while he was in the shower and, very

6 unfortunately, passed away. There was no evidence that

7 this was a suicide, but I was sued, and that suit was

8 settled.

9 Q Okay, so that was a wrongful death case.

10 A That's correct.

11 Q Involving a schizophrenic patient.

12 A Correct.

13 Q And the first one was a suicide case involving a

14 schizophrenic patient.


16 Q How about the third lawsuit?

17 A The third lawsuit was of a woman whose father was

18 concerned about her lack of response. She had, I think,

19 was in her mid-30s, and had been poorly responsive and in


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20 and out of state hospitals for approximately ten to 12

21 years, and she was brought to Medical College of

22 Virginia. She was treated with antipsychotics without

23 benefit, and the augmenting medication clozapine was

24 given, and the patient made some improvement, but did not

25 recover, and was transferred to the state hospital in our

9

1 vicinity. A few weeks after, maybe six weeks after the

2 patient had been transferred, she developed bone marrow

3 depression, and despite a lot of extensive medical

4 treatment at the Medical College of Virginia, she died of

5 infection.

6 Q Okay. Was she a schizophrenic also?

7 A She was a schizophrenic, or schizoaffective person.

8 Q And the outcome of that suit?

9 A That was settled.

10 Q All right, and then you mentioned a fourth suit.

11 A Uh-huh. In the spring of 1999, a woman called to ask if

12 her son could participate in a brain imaging research

13 project with us, and he was evaluated, was not able to

14 participate in the study because of a past history of

15 substance abuse, or close enough to the brain imaging,

16 and continued care with his doctor. The patient's mother

17 called and said things were not going well with him and

18 that her son felt he wasn't making progress with his

19 psychiatrist. So they called urgently on a Monday, and I

20 saw them maybe the next day after hours, like at about

21 5:00 o'clock, to see what I could do; and after an hour

22 session of discussion, the case, etc., the patient, his


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23 mother said it would really, really be nice if you could

24 work with our son. And I said, well, then, you know, I

25 would be, I would be willing to do that. Examined him,

10

1 whether he was suicidal, whether he was feeling safe,

2 etc., and was assured he was going home to have dinner

3 with his family, etc. Unfortunately, what happened to

4 him was that he went home, he was a college student at

5 the time, had dinner with his family, and then said I'd

6 like to go over to my apartment, you know, at

7 Case Western. Went to his apartment and jumped out the

8 window.

9 Q Was he a schizophrenic also?

10 A He was a schizophrenic person also.

11 Q You mentioned the name of the first suit was the

12 Krittenbrink?

13 A Correct.

14 Q How about the second?

15 A I believe that case was Thomas Putnam, P-u-t-n-a-m.

16 Q And the third case?

17 A I believe her name was Brenda White.

18 Q And the fourth case?

19 A I'm sorry, I don't remember his name right off.

20 Q And the fourth case settled also?

21 A Well, the fourth case was tried, and I was acquitted.

22 Then the case was appealed, and the appellate court said

23 that I had testified and been qualified as an expert

24 during the trial, but because I had not been practicing a

25 certain number of hours, my expert testimony wouldn't


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11

1 count. So they directed the case back to the court, and

2 we settled for court costs, rather than retrying the

3 case.

4 Q Who was the lawyer in the fourth case? Just looking for

5 either the name of the plaintiff or --

6 A Yeah, I'm sorry, I don't remember the attorney's name.

7 It was eight years ago.

8 Q And you came to Minnesota in '99?

9 A I came to Minnesota in July of '99.

10 Q You mentioned you testified about ten times.

11 A Uh-huh.

12 Q I imagine you did in all four of these cases.


14 Q What were the other six?

15 A Well, I have on occasion done expert witnessing or

16 consultation. I worked one case with the State of

17 Pennsylvania when I worked at the University of

18 Pittsburgh, providing assessment of a man who was in

19 prison. He had murdered his wife. He had suffered from

20 schizophrenia.

21 And then I've worked on about three other

22 cases involving post traumatic stress disorder in the

23 workplace.

24 Q Okay. Can you give me the names of those?

25 A I just -- I don't have the names of those where I served

12

1 as expert witness.


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2 Q Do you have access to those? You do have a list of

3 those?

4 A I don't have a list of those, but if it were something

5 that you need, I would work with Mr. Alsop and we could

6 track down the attorneys I worked with and get those

7 cases.

8 Q Great, thank you, that would be --

9 A I mean, I'd certainly do my best.

10 Q That would be very helpful. Thank you. So you've only

11 testified -- let me ask you this: Have you ever

12 testified for the plaintiff in a malpractice case?

13 A I'm trying to think. I do not believe I've testified for

14 a plaintiff in a malpractice case.

15 Q Have you ever testified for the defendant in a

16 malpractice case?

17 A Yes, I have.

18 Q And you could -- you would be able to find out when and

19 where that was?

20 A That was about 25 years ago. So I would do my best, is

21 all I can say.

22 Q Have you testified as an expert witness in the last ten

23 years?

24 A I have testified as an expert witness I believe in one

25 case since I've been here in Minnesota in the last eight

13

1 years. That's the only one I recall in the last eight

2 years.

3 Q And where was that case, do you recall?

4 A That was a case of a psychiatrist who worked in the


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5 Chicagoland area, and the patient was a young man with

6 schizophrenia, and he was living at home, and he was

7 having some difficulties in the home, as I recall. I

8 don't want to overspeculate on him. But in any case,

9 what ended up happening is he ran out of his house, ran

10 down the block, climbed a tree, and fell out of the tree,

11 and hurt his back, a back, broke his back. And so I

12 testified for the defense in that case. That's the only

13 case I remember working as an expert for the defense in a

14 malpractice suit --

15 Q Okay.

16 A -- since I've been here.

17 Q Have the other cases involved post --

18 A Post traumatic stress disorder.

19 Q -- traumatic stress disorder. All right. Since you have

20 this experience, you probably don't need this, but I'll

21 just run through the list of things, the rules that we

22 need to follow. I'm supposed to ask questions in a clear

23 and intelligible manner; and if not, you'll let me know

24 and I'll reask it. Fair enough?

25 A Fair enough.

14

1 Q If you ever need to take a break, we can do that whenever

2 you'd like, but only after you've finished answering a

3 question. Fair enough?

4 A Uh-huh.

5 Q Your lawyer will make legal objections from time to time.

6 You need to make sure that he has the time to do that

7 clearly on the record, and then you can answer. Fair


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8 enough?

9 A That sounds okay. I have talked to my attorney, and he's

10 indicated that --

11 MR. ALSOP: Just listen to the question. We

12 talked.

13 BY DR. BARDEN:

14 Q We can't both talk at once. It makes it very hard for

15 the reporter.

16 A I understand.

17 Q And we also can't speak too rapidly, so we'll work on

18 that. Fair enough?

19 A Okay.

20 Q Okay. Now, we're both going to be very careful not to

21 mention the names of any patients other than Dan, right?

22 A Fine.

23 Q And I'm also not going to ask you for any discussions

24 you've had with your lawyers. So even if it seems like

25 I'm asking you for the name of a patient or some

15

1 discussion you've had with your lawyers, I'm really not.

2 I don't want that information. Fair enough?

3 A Fair.

4 Q What have you done to prepare for the deposition?

5 A I've had three meetings with my attorney, Mr. Alsop. I

6 have reviewed some materials that he's prepared for me.

7 I think that's about it.

8 Q Have you read the deposition of Dr. Olson?

9 A No, I have not.

10 Q Have you read the expert witness report from Dr. Harrison


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11 Pope?

12 A I read a document by Dr. Pope regarding my participation

13 or my role in this case.

14 Q Okay. Have you read the expert witness affidavit from

15 Dr. Hudson?

16 A As it relates to me, yes.

17 Q Do you know Dr. Pope or Dr. Hudson?

18 A I know of their work, and I've seen Dr. Hudson at

19 meetings.

20 Q Okay. What's the -- in your field, what is the

21 reputation of Dr. Hudson and Dr. Harrison Pope?

22 MR. ALSOP: I'll object on the basis of

23 foundation. If you know, go ahead.

24 THE WITNESS: My area of work is relatively

25 specialized into schizophrenia, psychosis, other severe

16

1 illnesses; and my understanding of the reputation of

2 Dr. Hudson, he works in the area of eating disorders and

3 other illnesses, and I think he has very good academic

4 reputation.

5 Dr. Pope has been writing and investigating

6 in the areas I treat, to my knowledge, for the last 30

7 years, publishes in respected journals, and is a

8 highly-regarded academician.

9 BY DR. BARDEN:

10 Q Have you ever spoken to Dr. Olson about this particular

11 case?

12 A Not since the meeting I had with him following the letter

13 I received from Mrs. Weiss, not since the lawsuit was


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14 filed.

15 Q What was the nature of the discussion you had with

16 Dr. Olson at that time?

17 A I received a letter from Ms. Weiss in which she expressed

18 concerns about her son's participation in the CAFE study.

19 I wanted to make sure that these concerns were made known

20 to Dr. Olson, and I had a chance to talk with Dr. Olson

21 and one of the project coordinators, Ms. Kenney. So I

22 had the letter available, but asked the two of them to

23 come to my office and review the letter, hear their

24 thoughts and concerns on what was going on with the

25 patient, and our meeting lasted for approximately an

17

1 hour.

2 Then I drafted a letter of response to

3 Mrs. Weiss. I gave the draft of the letter to Dr. Olson

4 so he could review it, make sure we were all on the same

5 page, and he knew what I was going to be sending back to

6 her, and I mailed the letter back to Mrs. Weiss. And I

7 did not have an opportunity to talk with Dr. Olson about

8 the case after that time.

9 Q How many letters did you receive from Mrs. Weiss?

10 A Well, I have one, and I realize there is some -- that

11 Mrs. Weiss has indicated there were more letters, but I

12 received a letter, I think in April.

13 MR. HUTCHINSON: Could I interrupt? Is it

14 Weiss or Weiss? It's Weiss, isn't it?

15 DR. BARDEN: It's Weiss.

16 MR. HUTCHINSON: It's Mrs. Weiss.


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17 THE WITNESS: I apologize, Mrs. Weiss.

18 BY DR. BARDEN:

19 Q So to the best of your knowledge, you only remember

20 receiving one letter?

21 A That's correct, to the best of my knowledge, right.

22 Q And how many letters did Dr. Olson receive, do you know?

23 A I don't know.

24 Q During your hour-long discussion with Dr. Olson about

25 this case after Dan's death, what did you discuss in that

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1 one-hour meeting?

2 MR. ALSOP: That's a misstatement. This

3 hour-long meeting was before his death. It's the meeting

4 about the letter.

5 DR. BARDEN: But it was the meeting. Thank

6 you.

7 THE WITNESS: Well, I don't have the letters

8 available, but it was, I would say mid-April.

9 BY DR. BARDEN:

10 Q Was there documentation made of this meeting?

11 A Other than the draft of the letter that I mailed back to

12 Mrs. Weiss in response to her letter, describing what my

13 thoughts were and my attempt to address her points, that

14 was the only documentation made.

15 Q Okay, so you had a one-hour meeting with Dr. Olson.

16 A And --

17 Q And with Ms. Kenney.

18 A Uh-huh.

19 Q About patient care of Dan Markingson, but there was no


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20 documentation made of this meeting, other than this

21 letter. Is that your testimony?

22 A Well, the person was in a research study and --

23 MR. ALSOP: Well, Doctor, the question is,

24 are there any other documentation you're aware of or not.

25 Do you know?

19

1 THE WITNESS: There is no other

2 documentation made.

3 BY DR. BARDEN:

4 Q Are you aware that Dr. Olson has testified that he was

5 also Dan's treating physician throughout this entire

6 time?

7 A I haven't seen his deposition. I don't know what he said

8 about it.

9 Q As the coinvestigator on the CAFE study, were you aware

10 that Dr. Olson was Dan's treating psychiatrist and his

11 only treating physician up until the day of his death?

12 A No.

13 Q So this is the first time that you've learned of that.

14 A I have -- I've been made aware of that after the lawsuit

15 has been filed.

16 Q Okay, and you've read Dr. Pope and Dr. Hudson's concerns

17 about having the treating, the only treating physician

18 and the only treating psychiatrist, also being the PI on

19 the study and also being the study psychiatrist for Dan,

20 and him filling all of those roles for Dan and their

21 expressing concern about that. You've read that,

22 correct?


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23 A Yes, I have.

24 Q Do you share their concerns about those multiple roles

25 for Dr. Olson?

20

1 A No.

2 Q You don't.

3 A I don't.

4 Q Can you point to me any peer review journal articles or

5 references that would indicate that Dr. Olson's behavior

6 was acceptable, that is, being the only treating

7 physician, the only treating psychiatrist, the PI, and

8 the study physician for Dan?

9 MR. ALSOP: It's vague and ambiguous, but go

10 ahead.

11 THE WITNESS: No. Yeah, I'm not aware of a

12 peer review article that discusses that.

13 BY DR. BARDEN:

14 Q Are you aware of any publications of any kind that would,

15 that discuss that?

16 A No.

17 Q Have you yourself performed those multiple functions with

18 your patients that you've treated?

19 MR. ALSOP: That's irrelevant, but go ahead.

20 THE WITNESS: Well, I have not been the

21 principal investigator of a study for quite some time,

22 maybe one or two studies, but in the past, maybe ten, 12,

23 15 years ago, I've been principal investigator of a study

24 and the person who also was the only doctor for a patient

25 in the study.


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21

1 BY DR. BARDEN:

2 Q Okay, so it's been -- so in the last 15 years, you have

3 not served those multiple roles with any of the patients

4 you've seen?

5 A No, just --

6 MR. ALSOP: That's a misstatement of his

7 testimony, it's argumentative, but go ahead, Doctor, you

8 can answer.

9 THE WITNESS: I just want to think a second

10 to make sure I'm reviewing in my mind the studies where

11 I've been principal investigator. I would like to say,

12 within the last eight years, I have always involved other

13 doctors in the studies, either as the rating psychiatrist

14 or somebody that would be available.

15 BY DR. BARDEN:

16 Q So for the last eight years, you've involved others.

17 A Correct.

18 Q How many patients have you treated in the last eight

19 years?

20 A Well, my major duty is administrative in the

21 Department of Psychiatry as the department head. What I

22 do clinically is each year, either for two to four weeks,

23 I will work as the attending psychiatrist on one of our

24 inpatient services, and I --

25 Q That's for two to four weeks per year?

22

1 A That's correct.


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2 Q Okay.

3 A And so I will go over to our ward, meet the resident med

4 student. We will see anywhere from eight to ten

5 patients. It provides an opportunity for teaching,

6 supervision, and discussion, but I'm the attending

7 physician for those patients during that week I'm the

8 attending.

9 Q Just for two to four weeks a year.

10 A Right.

11 Q So for the rest of the year, you're not really seeing

12 patients?

13 A Well, I'm sorry, I hadn't finished.

14 Q Okay.

15 A But I appreciate that. So I also see people in the

16 outpatient clinic, and I have maybe six or seven patients

17 I work with regularly on an outpatient basis, and I'm

18 trying to think how to quantify this. Spend anywhere

19 from two to four hours a week in the outpatient clinic,

20 sometimes more, sometimes less.

21 Q So the number of hours over the course of a year per week

22 that you spend in patient care is quite minimal.

23 A Well, I've -- compared to what? I think compared to

24 other people at the University, that's a pretty good

25 clinical load for a department chair, and I think for a

23

1 person, compared to a person in full-time practice, it's

2 a small number.

3 Q What percentage of your time are you seeing actual

4 patients?


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5 A I think I just described. I go to the wards two to four

6 weeks a year, and on the wards four weeks since January,

7 and I see outpatients in our clinic anywhere from one to

8 two to four hours a week.

9 Q Okay, so it's less than ten percent of your time.

10 A Well, I think I've given you the actual amount of time

11 I've spent.

12 Q But in terms of a percentage of your time, what would you

13 say, per patient, actual patient care where you're the

14 physician in charge of that patient, not where you're

15 supervising or you're watching other people treat?

16 A No, I understand. I think I try to understand what a

17 percentage is, is, you know, how much time I spend

18 working in a week. A 40-hour week, I would say I

19 probably spend somewhere between five and ten percent of

20 my time in direct patient care.

21 Q But you work a lot more than 40 hours a week, don't you?

22 A I do.

23 Q So it would be less than ten percent, certainly.

24 A I think I said five to ten percent.

25 Q Okay. Have you spoken to any representatives of the

24

1 AstraZeneca firm about this case?

2 A No.

3 Q You've had no conversations with anyone from AstraZeneca

4 at all about this case.

5 A No.

6 Q Have you talked to any other -- have you talked to anyone

7 else, outside of your attorneys, of course, about this


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8 case, including medical colleagues?

9 A Uh-huh.

10 Q Pardon?

11 A Uh-huh. I've talked to one person. I was on the phone

12 with a colleague of mine, she and I are working on some

13 manuscripts together. She is on full-time faculty at

14 McLean Hospital. And at the end of the conversation, I

15 let her know that two of her fellow faculty people had

16 rendered the, their expert opinions, especially the part

17 about the chair's duties to monitor trials, and asked

18 her, is this how it goes at McLean Hospital. So I did

19 discuss it with that faculty person.

20 Q What was her name?

21 A Dr. Mary Zanarini.

22 Q Mary Zanarini.

23 A Uh-huh.

24 Q When did that conversation take place?

25 A Probably in the beginning of June.

25

1 Q June of this year.

2 A That's correct.

3 Q So just a few weeks ago.

4 A Correct, after I had received the expert opinions of

5 Drs. Pope and Hudson.

6 Q Okay. Have you talked to anyone else?

7 A Nope.

8 Q All right. I'll show you what we're going to mark as

9 Exhibit A.

10 (Schulz Deposition Exhibit A marked for


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11 identification.)

12 BY DR. BARDEN:

13 Q Could you identify that for me.

14 A Okay. This is my curriculum vitae dated February 17,

15 2004.

16 Q Okay, and is that your signature there?

17 A Yes, it is.

18 Q It is. Okay. And you signed it 5-19-04, which gives us

19 the date of the most recent version, correct?

20 A I don't believe so. I think the signature there for

21 5-19-04 is the time that this was signed for some reason

22 or another, either participating in the study or

23 something like that.

24 Q Okay. Have you done an update of your vitae since 2004?

25 A Yes.

26

1 Q And could we get a copy of that?

2 A I'd be happy to work with you on that.

3 MR. ALSOP: You have a copy.

4 MS. PEARSON: We just got one this morning.

5 DR. BARDEN: Oh, we got one this morning.

6 MS. AHMANN: We have it.

7 MR. ALSOP: In the answers to

8 interrogatories you got this morning. This document was

9 served some time ago.

10 MS. PEARSON: We received some time ago.

11 DR. BARDEN: Why don't we mark this.

12 (Schulz Deposition Exhibit B marked for

13 identification.)


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14 BY DR. BARDEN:

15 Q You went to medical school at UCLA, correct?

16 A Yes, I did.

17 Q Now, let me ask you a few questions. In 1988-89, you

18 were at the National Institute of Mental Health in

19 Rockville. Is that right?


21 Q What, if any, financial relationships with drug companies

22 did you have during that timeframe?

23 A I think at that time I, on occasion, would give a lecture

24 that was sponsored by a drug company, but I had no

25 consulting relationship or any other relationship.

27

1 Q How many drug companies -- during the time Dan Markingson

2 was in your research study -- and let me back up just a

3 minute. You were a coinvestigator on the CAFE study,

4 correct?

5 A That's correct.

6 Q And you were listed as a ten percent, I believe, on that

7 study?

8 A I don't recall.

9 Q Would that be consistent with what you typically do in

10 research studies, you're a consultant, where you help out

11 with training or supervision or something like that?

12 MR. ALSOP: Object as speculative and vague.

13 Go ahead, you can answer.

14 THE WITNESS: It's hard for me to say what I

15 usually do, but in this case, what I remember planning on

16 doing was being a coinvestigator to be available if a


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17 backup rater might have been needed or if Dr. Olson had

18 any questions that he wanted to chat with me about about

19 how the study went, and I don't recall exactly what the

20 amount of time I put down on my effort certification for

21 the study was.

22 BY DR. BARDEN:

23 Q Do you have records that show that?

24 A I believe we should, at the University, have records of

25 how much time we spend allocated to each study.

28

1 Q How much funding did you receive from CAFE study?

2 A I don't believe I received any.

3 Q So you were listed as ten percent, but you don't recall

4 receiving any funding.

5 A I think I said I don't recall how much time I was listed

6 on effort, but I don't believe I received any money from

7 the study towards my compensation.

8 Q But you were listed as a coinvestigator, correct?

9 A That's correct, I was.

10 Q And what are your duties and responsibilities as a

11 coinvestigator on the CAFE study?

12 A I think I just mentioned that I was available if a backup

13 rater was needed, and to be available to Dr. Olson to

14 discuss any issues that might come up with the study, and

15 my -- that was what my role in the study was.

16 Q Are there any other duties that you have as a

17 coinvestigator on a funded study, other than the ones

18 you've discussed so far?

19 A I think at the University of Minnesota, the other duty


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20 would be to, if the principal investigator were not

21 available or if the investigator moved and the study

22 stayed at the University of Minnesota, to be available to

23 substitute as the principal investigator for the study

24 until it was done.

25 Q What, if any, duties do you have as a coinvestigator to

29

1 ensure that informed consent is properly obtained?

2 A I have not participated in verifying informed consent or

3 obtaining informed consent as a coinvestigator in studies

4 at the University of Minnesota.

5 DR. BARDEN: Objection, move to strike as

6 nonresponsive.

7 BY DR. BARDEN:

8 Q What, if any, duties do you have as a coinvestigator with

9 regard to obtaining proper informed consent?

10 A I do not have any duties as a coinvestigator regarding

11 informed consent.

12 Q What, if any, duties do you have as a coinvestigator to

13 ensure that the rights of research subjects are

14 protected?

15 MR. ALSOP: Object as vague, but go ahead.

16 THE WITNESS: I don't have any -- I'm not

17 aware that I have -- I do not have any specific duties.

18 BY DR. BARDEN:

19 Q In your resume, you list a number of research

20 publications, correct?

21 A Yes.

22 Q Have you ever published anything in any peer review


27/238

23 journal with regard to the rights of research subjects?

24 A If I could ask a clarification of the question. I have

25 written about informed consent. I don't know whether it

30

1 was in a refereed or nonrefereed journal article.

2 Q I show you what has been marked as Exhibit B, which is

3 your curriculum vitae that is updated. Can you find me

4 any article you believe focuses on the rights of research

5 subjects?

6 A Sure. Sorry that it's taking me a little bit of time to

7 find this. Well, in response to your question, I can't

8 find the reference to an article I wrote that I believe

9 was not refereed, that was published in the

10 Hastings Journal, which is a journal of bioethics, during

11 the late 1970s, in which at a time I was a clinical

12 associate at National Institute of Mental Health and I

13 wrote the article with my section chief,

14 Dr. Dan van Kammen, and the bioethical consultant to our

15 board, Dr. Fletcher.

16 Q Would you have a copy of this article or the reference

17 for it?

18 A I know it was in the Hastings Journal, and I know it was

19 in the late 1970s, and I apologize, it's not in my CV.

20 That kind of surprises me.

21 Q Do you have any reason why it wouldn't be listed in your

22 CV?

23 A No, uh-uh. I'm actually disappointed it's not there.

24 Q Have you written any article you can show me in your

25 updated vitae with regard to fiduciary duties of


28/238

31

1 physicians to their patients?

2 A I'm not aware I've written about that.

3 Q What's your understanding of the term fiduciary duties?

4 Strike that. Let me ask it a different way.

5 What's your understanding of the fiduciary

6 duties a physician owes to their patients?

7 MR. ALSOP: I'll object.

8 MR. HUTCHINSON: I'm just going to object,

9 and insofar as it may be asking this witness of legal

10 matters or legal conclusions.

11 MR. ALSOP: I'll join. It's also vague and

12 ambiguous. But go ahead, you can answer if you can.

13 THE WITNESS: Well, I don't want to sound

14 like I don't know my vocabulary words, but if you could

15 spell out for me what you mean by fiduciary, it will help

16 me.

17 BY DR. BARDEN:

18 Q Okay. Have you ever read any biomedical ethics texts?

19 A I can't recall.

20 Q Have you had any training at all in biomedical ethics?

21 A Yes, I have.

22 Q Have you had any training at all in the duties physicians

23 owe their patients?

24 A Well, I've gone to medical school and residency, and I've

25 been a fellow, so in that sense, yes.

32

1 Q What specific -- have you had any continuing medical


29/238

2 education courses in the ethical duties physicians owe to

3 their patients?

4 A I don't recall, no.

5 Q Pardon?

6 A I don't recall that I have.

7 Q You are required in the State of Minnesota to take

8 continuing medical education, correct?

9 A That's correct.

10 Q And you're also required to keep a list of the courses

11 that you take. Is that correct?


13 Q Now, that list is not in the vitae, correct?


15 Q Do you have access to that list?

16 A Yes, I do.

17 Q Where would that list be?

18 A That would be in my office, and to just answer the

19 question further, what I do is keep the certificates of

20 the CME activities I participate in.

21 Q Would you be able to get us a copy of those?

22 A Yes.

23 Q Thank you. So in your training, whatever training you've

24 had in biomedical ethics of the duties that physicians

25 owe to their patients, have you never seen the term

33

1 fiduciary duty?

2 A Well, I can't say whether I've heard it or not. I was

3 just hoping you could provide some further definition so

4 I could do my best to answer the question.


30/238

5 Q As the chairman of psychiatry at the University of

6 Minnesota Medical School, as you sit there now, what is

7 your understanding, and I'm not asking you for any legal

8 term at all, I'm asking you for the rights used in

9 medicine, what is your understanding as you sit there now

10 of the term a physician's fiduciary duty to patients?

11 MR. ALSOP: Object as vague and ambiguous.

12 Again, go ahead, Doctor, if you can answer.

13 THE WITNESS: You know, I would only be

14 speculating in trying to answer your question. I just --

15 I don't know.

16 BY DR. BARDEN:

17 Q Do you think it's important for a chairman of a

18 department at the University of Minnesota Medical School

19 to be knowledgeable about the rights of medical patients?

20 A Yes, I do.

21 Q Do you think it's appropriate for the chairman of a


23 to be aware of basic terminology in biomedical ethics?

24 MR. ALSOP: Object as vague. Go ahead.

25 THE WITNESS: Could you restate the

34

1 question? Because I'm -- I'm sorry.

2 MR. ALSOP: Go ahead.

3 BY DR. BARDEN:

4 Q Do you think it's important for a chairman of a medical


6 to understand basic terms in biomedical ethics?

7 A Yes, I do.


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8 Q What training have you had with regard to obtaining

9 proper informed consent?

10 A I've had training over a number of years. I think the

11 beginning of my training in informed consent occurred

12 when I was a clinical associate at the National Institute

13 of Mental Health, and the section chief, Dr. van Kammen,

14 worked with all of the clinical associates about the

15 issues of going through informed consent and also making

16 an assessment of the ability of a person to consent.

17 After that time, I've been involved in

18 studies sponsored by industry and their startup meetings,

19 and they provide substantial training about the informed

20 consent process when they have their startup meetings.

21 And then at the University of Minnesota,

22 there are required courses in responsible conduct of

23 research, and I've attended those.

24 Q Now, throughout the course of the day, I'm never going to

25 ask you for a legal opinion on anything. Fair enough?

35

1 A Sounds fine.

2 Q But there are terms and concepts that are used in

3 medicine that are also used in law, correct?

4 MR. HUTCHINSON: Objection, lack of

5 foundational.

6 MR. ALSOP: I'll join.

7 THE WITNESS: I would guess so.

8 BY DR. BARDEN:

9 Q Let me give you an example. Informed consent, that's a

10 term that's used in medicine, isn't it?


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11 A Yes, it is.

12 Q It's also used in law. But if I ask you for your opinion

13 or for information you know about a term informed

14 consent, I just want to clarify, I'm only asking you for

15 your medical knowledge. I'm not going to ask you how

16 it's used in the legal world. Is that okay?

17 A That's fine.

18 Q But as a licensed physician in the State of Minnesota,

19 you are required to know some legal things, aren't you?

20 MR. ALSOP: Object to foundation.

21 BY DR. BARDEN:

22 Q Such as the rights of patients with regard to informed

23 consent. Is that right?

24 MR. HUTCHINSON: That sounds like are you

25 asking him if he's required to know the legal rights, and

36

1 I understand from your prior preface that you're not

2 asking that.

3 BY DR. BARDEN:

4 Q I'm just going to make it clear. You're a licensed

5 physician in the State of Minnesota, correct?

6 A That's correct.

7 Q And as a licensed physician, you are required to know

8 certain things. Isn't that right?

9 MR. ALSOP: Object to lacking in foundation.

10 Go ahead.

11 THE WITNESS: I'll say yes.

12 BY DR. BARDEN:

13 Q Okay. As a licensed physician practicing in the State of


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14 Minnesota, what is required of a physician in terms of

15 obtaining informed consent, what information are you

16 required to obtain from the patient and give to a

17 patient?

18 A The way I'd like --

19 MR. HUTCHINSON: Again, you're not asking

20 for the legal requirements, I understand.

21 DR. BARDEN: I think the question is clear

22 as it stands, uh-huh.

23 MR. HUTCHINSON: No, I disagree, but go

24 ahead, Doctor.

25 THE WITNESS: I think the best way that I

37

1 know how to answer the question is to describe what I do

2 at my work with the patients I work with. When patients

3 come into either our clinic or into our hospital, they

4 sign a form consenting to participate in research. Then

5 when I see the patient, I talk with the patient about my

6 assessment, and then I discuss with them a treatment plan

7 and treatment alternatives.

8 So, for example, if I were meeting with a

9 person who had schizophrenia and I thought that there was

10 a medicine, such as risperidone, that might be best for

11 them, I would also discuss with them there might be some

12 alternative medicines, I would describe the side effects,

13 and then I would talk with them about what they would

14 like to do, and then I would proceed with the plan.

15 BY DR. BARDEN:

16 Q Okay. Would you do anything else, other than what you've


34/238

17 described?

18 A I think the only other thing I know about our current

19 practice is on our inpatient service, when a person is --

20 when an antipsychotic medication is recommended, there is

21 a separate form in our hospital that we go through the

22 risks of antipsychotic medication treatment, and the

23 patient signs that.

24 Q And do you know if that form was ever obtained from Dan

25 Markingson?

38

1 A I don't know.

2 Q Have you reviewed the case records?

3 A No.

4 Q When you had your one-hour meeting with Dr. Olson and

5 Jean Kenney, you never looked at any of the records?

6 A No. I just met with them.

7 Q Did Dr. Olson ever inform you that he never obtained such

8 a document from Dan Markingson?

9 A No, he didn't.

10 Q Did Dr. Olson inform you in that hour meeting that Dan

11 Markingson was under a threat or stay of commitment when

12 he signed the informed consent form for the CAFE study?

13 A Well, you've used two terms there, one was threat of

14 commitment, the other is a stay of commitment, and so

15 maybe you could clarify which you'd want to talk about.

16 Q Are you aware of any difference between the threat of

17 commitment and the stay of commitment?

18 A I'm aware of what a stay of commitment is in Minnesota,

19 and I'm not aware there is a term in Minnesota threat of


35/238

20 commitment.

21 Q Okay. What's your understanding of a stay of commitment?

22 A My understanding of it is, is that a person can, in a

23 hypothetical example, I'm working with a patient on a

24 ward, the person would be able to leave the hospital and

25 be on a stay of commitment, and if things did not go in a

39

1 good direction for that person, they didn't participate

2 in their care, then they could be brought back to

3 hospital.

4 Q And what's the purpose of a stay of commitment?

5 A I think the stay of commitment is to have a mechanism to

6 be able to keep a person in treatment.

7 Q Yeah. It's to control the person, isn't it?

8 A No.

9 MR. ALSOP: That's argumentative and a

10 misstatement of his testimony. Wait, wait. Go ahead.

11 THE WITNESS: Pardon me?

12 MR. ALSOP: You can answer, Doctor.

13 BY DR. BARDEN:

14 Q As a physician who has worked with patients, what, if

15 any, coercive influence would you say there is from a

16 stay of commitment hanging over their head during their

17 care?

18 A None.

19 Q Are you aware of any peer review journal or article that

20 would support your statement?

21 A No.

22 Q Did Dr. Olson inform you that Dan Markingson was under a


36/238

23 stay of commitment during your hour-long meeting with

24 him?

25 A No, he didn't, to the best of my recollection.

40

1 Q Did Dr. Olson ever inform you that he was, A, going to

2 recommend that the court recommit or restay the

3 commitment for Dan Markingson, because he considered him

4 a danger to himself or others?

5 A No.

6 Q And at the same time, he was not going to reconsent him

7 to the study? Did he tell you that?

8 A I'm sorry. There were a lot of parts to that. I didn't

9 quite get it.

10 Q Yeah. Several weeks before Dan died, were you aware that

11 Dr. Olson was going to petition the court to recommit Dan

12 Markingson at the same time he was going to not reconsent

13 him for the study?

14 A I'm sorry, I'm still not quite following, especially the

15 not knowing the dates or other things like that.

16 Q Would you be concerned if a psychiatrist under your

17 supervision was telling a court that a person was

18 incompetent, and was telling the research agencies that a

19 person was competent at the same time? Would you be

20 concerned about that?


22 Go ahead, Doctor.

23 THE WITNESS: Are you asking that in a

24 hypothetical sense?

25


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41

1 BY DR. BARDEN:

2 Q Well, that's what happened in this case. So, yeah, I'm

3 asking you --

4 A So you're asking a specific question.

5 MR. HUTCHINSON: Object to that as a

6 misstatement of the evidence and argumentative, and

7 object to the preface.

8 MR. ALSOP: I would join in those

9 objections.

10 BY DR. BARDEN:

11 Q The record speaks for itself. Let's do it generally

12 first. Have you had a psychiatrist --

13 A We're talking hypothetically, now.

14 Q Let's start with a hypothetical, yeah.

15 A Okay.

16 Q Psychiatrist is instructing a court that a person is not

17 competent to make decisions for themselves with regard to

18 finances, travel, freedom, etc., but at the same time,

19 they're keeping the person in a research study in which

20 they have to be able to give consent. Would you have

21 trouble, have any concerns, if you saw that behavior in a

22 psychiatrist under your supervision?


24 Go ahead, Doctor.

25 MR. HUTCHINSON: Object on grounds of lack

42

1 of foundation.


38/238

2 MS. AHMANN: Join.

3 THE WITNESS: You know, my best answer is I

4 would want to know more. I think in the, my

5 understanding, in the State of Minnesota, a committed

6 person still, if felt to understand a research study, may

7 participate in a research study.

8 So I do understand your question, and it

9 would cause me concern if I were to learn about the

10 scenario you described, but then there would be other

11 circumstances or I'd want to know more about the story of

12 how the person could stay in the study and be a committed

13 patient.

14 BY DR. BARDEN:

15 Q Are there special rules and principles at the

16 University of Minnesota with regard to research subjects

17 who are decisionally impaired?

18 MR. ALSOP: Object on the basis of

19 foundation. Go ahead.

20 MR. HUTCHINSON: Join.

21 BY DR. BARDEN:

22 Q Well, let me deal with your lawyer's objection. Do you

23 know what the term decisionally impaired means?

24 A Yes, because I also collaborate with people who work in

25 research with, clinical research with people with mild

43

1 cognitive impairment or Alzheimer's disease, and so there

2 are patients there who have poor memory, and so they

3 are -- I don't know whether the technical term is

4 decisionally impaired or vulnerable, but I know that


39/238

5 there are needs to make sure that such a patient is,

6 Alzheimer's patient is, say the family would be involved,

7 etc., before a person would be involved in the study.

8 Q How about psychotic patients?

9 A Psychotic patients, my understanding is that there is an

10 obligation to understand whether the person understands

11 the study they are participating in, can answer questions

12 about what the study is about, what some of the side

13 effects of the medication are, what the point of the

14 study is, etc.

15 Q Okay. Going back to your lawyer's objection again, are

16 you aware of the IRB rules and requirements and

17 guidelines for the University of Minnesota?

18 A I think I'm -- I'm aware of those, sure.

19 Q Now, given that you're aware of the term decisionally

20 impaired and given that you're aware of the term, of the

21 guidelines of IRB, what are, as you sit there now, what

22 are the guidelines for the IRB at the University of

23 Minnesota with regard to a decisionally impaired subject?

24 A Well, I think, first of all, there is a decision as an

25 investigator goes through the IRB process, whether or not

44

1 the subjects who are being involved in the protocol are

2 vulnerable, and if that is determined that they may be,

3 that there may be subjects there, then there needs to be

4 a plan about how to obtain consent.

5 So if we're talking generally, then, for

6 example, if we had a person under the age of 18, we would

7 want to obtain the consent of the parents and the assent


40/238

8 of the subject.

9 Q Anything else?

10 A No.

11 Q Is there any other system in place for vulnerable

12 subjects, any other steps that are supposed to be taken?

13 A My understanding of the rules about vulnerable, possibly

14 vulnerable people, is that the investigator is to work

15 with the IRB to make a plan that is specific to his

16 protocol.

17 Q If a psychiatrist, treating psychiatrist, and a treatment

18 team and an outside evaluator had all determined that a

19 patient lacked capacity, was grossly psychotic, was not

20 aware that he was mentally ill, and felt that he didn't

21 need treatment, and petitioned a court for commitment,

22 would that person be a vulnerable research subject within

23 the guidelines of the IRB at the University of Minnesota?

24 A Without knowing more about the specific case, I can't

25 answer that.

45

1 Q Based on what I've told you so far, you don't --

2 A Not necessarily.

3 Q Okay. Would you be concerned that a patient that had had

4 that many evaluations, finding them lacking capacity,

5 finding them grossly psychotic, finding them not aware

6 that they were mentally ill, and finding them not

7 interested in treatment, would you be concerned if that

8 patient had not been evaluated as a potential vulnerable

9 subject?

10 MR. ALSOP: That's repetitious, it's vague


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11 and ambiguous. Go ahead, Doctor.

12 MR. HUTCHINSON: I join. Lack of

13 foundation.

14 THE WITNESS: I'm sorry to have to say that

15 I'm still confused about the question, whether we're

16 talking about this in a hypothetical sense or whether

17 we're talking about it, about a specific circumstance,

18 say with this person, with Dan.

19 BY DR. BARDEN:

20 Q Well, right now we're talking about a hypothetical.

21 A Given the hypothetical, then I think that there may be

22 some other information I would want to learn about the

23 patient; and if the patient were, despite some of the

24 aspects of the seriousness of the illness, have

25 understanding of the research process, the research

46

1 protocol, and wished to participate in it, I would not

2 view him as necessarily incompetent to consent.

3 Q But you didn't read the records for Dan Markingson,

4 correct?

5 A Correct.

6 Q And in your one-hour meeting with Dr. Olson, he didn't

7 inform you that he and the treatment team and the outside

8 evaluator had all found Dan Markingson, within days of

9 when he signed the informed consent in this study, to

10 lack capacity, to be grossly psychotic, to not think he

11 was mentally ill at all? Dr. Olson didn't inform you of

12 that, did he?

13 A No, he didn't.


42/238

14 Q Do you have methods and procedures in place in the

15 Department of Psychiatry to catch rogue psychiatrists?

16 MR. ALSOP: I object as vague and ambiguous

17 and irrelevant, but go ahead.

18 MR. HUTCHINSON: Same. Lack of foundation.

19 THE WITNESS: So the quality assurance

20 processes at the University of Minnesota and the

21 University of Minnesota Medical Center at Fairview are

22 that on every inpatient service--and let me put a time

23 limit on this, because in the last year, it's been

24 changed to electronic, but that's not relevant to the

25 timeframe we're talking about--that there are forms on

47

1 every ward, and that the staff on the ward, any staff,

2 can write a complaint of concern about any physician's

3 activities, and then that is sent to the administration

4 of the hospital; and then that, after it's reviewed by

5 the administrative staff, may be referred back to the

6 unit to be discussed between medical director and person

7 who was complained about, or if it was an issue of a

8 difference of opinion about a treatment approach between

9 say a staff nurse and a patient, that it would be

10 discussed on the unit. Or, in rare cases, it would be

11 referred to a University of Minnesota Medical Center

12 quality committee.

13 BY DR. BARDEN:

14 Q Was this system in place during the time Dan was treated?

15 A Yes.

16 Q Have you -- let me go back to the rogue psychiatrist


43/238

17 question first. Have you had trouble in the past at the

18 University of Minnesota Psychiatry Department with

19 someone considered rogue psychiatrists?

20 MR. ALSOP: Same objection, it's irrelevant,

21 but go ahead.

22 MR. HUTCHINSON: Objection, lack of

23 foundation.

24 MS. AHMANN: Join.

25 THE WITNESS: I've been at the University of

48

1 Minnesota for eight years, and I'm not aware of any.

2 First of all, I have to preface my remark. I don't know

3 what the definition of rogue psychiatrist is.

4 BY DR. BARDEN:

5 Q Okay. Let me give you one. A psychiatrist who's been

6 prosecuted and found guilty of criminal activity. That

7 would be a rogue psychiatrist, wouldn't it?

8 MR. HUTCHINSON: Well, you're the one using

9 the term rogue. Is that how you want to define it,

10 counsel?

11 BY DR. BARDEN:

12 Q Have you never heard the term rogue psychiatrist?

13 A No.

14 Q Okay. Well, let me say criminals or people who violate

15 the ethics code or people who have their licenses

16 suspended. Is there a history of that at the

17 University of Minnesota Psychiatry Department?

18 MR. HUTCHINSON: Same objection.

19 MR. ALSOP: I join, foundation, but go


44/238

20 ahead, Doctor.

21 THE WITNESS: I am aware of that, of two

22 instances prior to my coming to the University of

23 Minnesota, where proceedings were brought against a

24 psychiatrist, Dr. Garfinkel, and I am not -- that was

25 well before I got here, but I am aware that charges were

49

1 brought against him and that those were sustained; and I

2 know that he is not working at the University now and

3 works in private practice here in the Twin Cities.

4 BY DR. BARDEN:

5 Q Do you know what the charges were while he was a faculty

6 member in the Department of Psychiatry?

7 A I don't.

8 Q You don't.

9 A No.

10 Q Were they criminal in nature, do you know that?

11 A I don't know that one way or the other.

12 Q How about Dr. Abuzzahab? Have you ever heard that name?

13 A Yes, I have heard of Dr. Abuzzahab.

14 Q Do you know of any unethical behavior, misconduct,

15 license revocations, with regard to Dr. Abuzzahab?


17 relevance. He wasn't at UM-DP, but go ahead.

18 DR. BARDEN: Goes to show a pattern of

19 conduct.

20 THE WITNESS: When I arrived here at the

21 Department of Psychiatry, the department administrator

22 informed me that Dr. Abuzzahab, who was in private


45/238


46/238

51

1 misstatement of the facts, but go ahead, Doctor.

2 MR. HUTCHINSON: And totally lacking in

3 foundation. There has been no showing of any

4 relationship between this witness and Dr. Abuzzahab that

5 imposes some obligation on this witness to do anything.

6 BY DR. BARDEN:

7 Q I think that's a fair objection. Let's make it really

8 relevant. During your tenure as chairman, Dr. Abuzzahab

9 has been invited back on the faculty. Isn't that

10 correct?

11 A During the time that I've been -- when I arrived here at

12 the Department of Psychiatry, Dr. Abuzzahab had already

13 had an appointment as a volunteer faculty member. He has

14 not been on the full-time faculty since my arrival.

15 Q But he is still currently on your faculty, correct?

16 A Well, I want to make clear that we have different faculty

17 appointments at the University of Minnesota, one of those

18 being clinical or adjunct professor for people in private

19 practice who may do things with the department, and what

20 Dr. Abuzzahab has done in his role as a clinical faculty

21 member has mostly been in the area of continuing medical

22 education.

23 Q Okay, and if you go to the University of Minnesota

24 website for the Department of Psychiatry, you see him

25 listed as a faculty member, correct?

52

1 A I haven't looked at that lately, but I think I've said he


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2 is on our adjunct faculty.

3 Q Okay, and since he's on your adjunct faculty, if he can

4 claim this University of Minnesota label, what steps, if

5 any, did you take to investigate the reasons why his

6 license was suspended?


8 relevancy, but go ahead, Doctor.


10 THE WITNESS: You know, I think -- I realize

11 there are rules about when we can take a break and not

12 take a break. Can we take a break now or --

13 MR. ALSOP: First, you can answer that

14 question first.

15 BY DR. BARDEN:

16 Q You can take a break whenever you like.

17 A Okay.

18 Q But only after you finish answering a pending question.

19 A I understand. Could you repeat the question for me?

20 Q Yeah. You're the chairman of psychiatry, right?

21 A I am, that's correct.

22 Q You do have a duty to get unethical people or people who

23 are reckless or dangerous, to keep them off your faculty,

24 correct?

25 MR. HUTCHINSON: Well, now we're going

53

1 beyond -- he wanted to take the break, and now we're

2 asking additional questions.

3 MR. ALSOP: Just answer the question that he

4 asked.


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5 THE WITNESS: I'm sorry, I don't know what

6 that question was.

7 BY DR. BARDEN:

8 Q What steps, if any, did you take to investigate why

9 Dr. Abuzzahab had his license suspended?


11 relevancy. Go ahead and answer, Doctor.

12 THE WITNESS: The steps I took were to talk

13 to faculty who had been in the department prior to my

14 arrival about their understanding and work with

15 Dr. Abuzzahab. I recollect seeing material from the

16 State regarding that his license had been suspended, and

17 then I met with Dr. Abuzzahab. I relieved him of his

18 position he had before I arrived, that he held, which was

19 head of the clinical faculty committee, and replaced him

20 with Dr. Gaylen Staylen.

21 MR. ALSOP: Okay.

22 DR. BARDEN: I think we offered you a break.

23 THE WITNESS: Thank you.

24 DR. BARDEN: We'll pick this up when we come

25 back. Five minutes, ten minutes?

54

1 MR. ALSOP: Five minutes is fine.

2 (Brief recess taken.)

3 DR. BARDEN: We're back on the record.

4 BY DR. BARDEN:

5 Q Dr. Schulz, a little while ago you told us about your

6 system at the University for reporting complaints. Do

7 you recall that?


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8 A For University of Minnesota Medical Center at

9 Fairview Hospital.

10 Q Uh-huh. You seemed pretty pleased with that program.

11 A Uh-huh, I did. I am.

12 Q Do you think your testimony on that issue was misleading?

13 A No.

14 MR. ALSOP: It's argumentative. Go ahead.

15 BY DR. BARDEN:

16 Q Have you in fact had trouble with your complaint system

17 at the University of Minnesota Department of Psychiatry?

18 MR. HUTCHINSON: When?

19 MR. ALSOP: Vague and ambiguous. Go ahead.

20 BY DR. BARDEN:

21 Q During the time Dan Markingson was treated --

22 MR. ALSOP: Same objections.

23 BY DR. BARDEN:

24 Q -- did you have serious problems with the way complaints

25 were handled and filed at the Department of Psychiatry at

55

1 the University of Minnesota?

2 A Not that I'm aware of.

3 Q Have you ever been audited?

4 A Have I ever been audited.

5 Q Has the Department of Psychiatry ever been audited?

6 A Oh, I'm sorry. Yeah, University of Minnesota provides

7 for audits of all departments on a regular basis every

8 seven to ten years, and we completed our audit I think

9 about a year and-a-half ago.

10 Q And they interviewed people, almost all of whom worked at


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11 the Department of Psychiatry during the time Dan

12 Markingson was treated and was a patient and was a

13 research subject there, correct?

14 A I'm not sure I know all that they did, and they made a

15 report, so if I could refer -- I'd be happy to refer to

16 the report and talk with --

17 Q The University did?

18 A Yeah, the University's audit report.

19 Q The University audited your department, correct?

20 A Uh-huh, that's correct.

21 Q One of the things they did was to interview your

22 employees and staff and faculty members. Isn't that

23 correct?

24 A I believe so, yes.

25 Q And the vast majority, in fact, almost all of those

56

1 people, worked in your department during the time Dan

2 Markingson was a research subject and a patient there.

3 Isn't that correct?


5 foundation, it's also vague. Go ahead, Doctor.


7 THE WITNESS: I would say that that's

8 approximately true, that a substantial number of people

9 that were working in the department in 2004 who

10 participated in the audit.

11 BY DR. BARDEN:

12 Q I show you what we're going to mark as Exhibit C.

13 (Schulz Deposition Exhibit C marked for


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14 identification.)

15 BY DR. BARDEN:

16 Q If you could take a look at that and identify it for the

17 record?

18 MR. ALSOP: Do you have copies?

19 MR. HUTCHINSON: Excuse me. Do you have

20 copies for --

21 MR. ALSOP: Everyone.

22 DR. BARDEN: I think I have a couple.

23 Here's one. Yeah, I think that's all I have right now.

24 MR. ALSOP: Why don't we --

25 MS. PEARSON: We produced those.

57

1 DR. BARDEN: We're only going to look at it

2 for about two minutes.

3 MR. ALSOP: Why don't you wait until we get

4 copies.

5 MS. AHMANN: Is that the July 2006?

6 MR. ALSOP: Just go off the record for a

7 second.

8 DR. BARDEN: Going to go off the record, and

9 stop the clock. Thank you.

10 (Brief time off the record.)

11 DR. BARDEN: We're now back on the record.

12 For the record, we've just stopped for a long time to

13 make copies of these documents. For the future, to keep

14 this moving along, and so we can finish today, if

15 possible, if we have produced these documents to you,

16 we're just going to go ahead. If you want to look over


52/238

17 my shoulder or the doctor's, that's fine. But we have a

18 large number of documents, I don't know which ones we're

19 going to use or not, because it all depends on the

20 doctor's answers to many questions. We couldn't bring a

21 20-foot stack of documents to hand all out. All of these

22 documents have already been disclosed to you, so we're

23 just going to move forward.

24 MR. ALSOP: These were e-mailed, I saw, this

25 morning, apparently. I hadn't downloaded them yet, and

58

1 to say they were produced and we can have copies is not

2 an accurate statement.

3 DR. BARDEN: Well, we're just going to move

4 forward, because it's easier. The time to take to do

5 this is simply too long.

6 BY DR. BARDEN:

7 Q Doctor, could you identify what's been marked as

8 Exhibit C for the record, please.

9 A This is an audit report of the Department of Psychiatry

10 at the University of Minnesota.

11 Q Okay, and have you read this document before?

12 A Yes, I have.

13 Q And you've written about it, haven't you, you've written

14 letters back and forth to these folks who did the audit?

15 A I have talked with them and I have, pretty sure I have

16 given some written communication back and forth, yes.

17 Q Okay, so you were certainly aware of this audit of your

18 department, correct?

19 A Yes.


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20 Q How many times has your department been audited in the

21 last four years?

22 A Once. It's been audited once in the last eight years.

23 Q So then you're certainly quite aware of this audit?

24 A Yes.

25 Q Okay, so during the time you were telling us about the

59

1 wonderful complaint procedures that you have, you were

2 aware of page 11 of this audit report that indicates --

3 in fact, look at the top of page 11. It says, quote,

4 "Additionally, the following issue received a --"

5 A I'm sorry, let me --

6 Q Page 11 at the top.

7 A Just want to make sure I'm with you.

8 Q "The following issue received a high negative response on

9 all three surveys. 41% of the Staff employees, 33% of

10 the Residents, and 71% of the Faculty said they were

11 unfamiliar with how to report violations of law or

12 policy, including the University's confidential reporting

13 line." Did I read that correctly, yes or no?

14 A Yes.

15 Q And you had read this document before you gave us your

16 testimony about the reporting system at the U, correct?

17 A Yes, I did.

18 Q Now, we look at the top of page 11 here, where it says,

19 "39% of the Staff did not believe that they would be

20 protected from retaliation if they were to report a

21 suspected violation." Did I read that correctly, at the

22 top of page 11?


54/238

23 A Yes, you did.

24 Q And were you aware of that when you testified here just a

25 few minutes ago?

60

1 A Yes, I was.

2 Q Now, we were talking about Dr. Abuzzahab, correct?

3 A Yes.

4 Q And Dr. Garfinkel, and you'd mentioned they'd had some

5 difficulties, correct?

6 A That's correct.

7 Q Yeah. Didn't Dr. Garfinkel, in fact, wasn't he convicted

8 of multiple felonies?

9 A I don't know.

10 Q I show you what we're going to mark as Exhibit No. D. I

11 do have copies of this.

12 MS. PEARSON: Dave, there is copies for you.

13 MR. ALSOP: Yeah, I'm passing it out.

14 (Schulz Deposition Exhibit D marked for

15 identification.)

16 BY DR. BARDEN:

17 Q This is a New York Times article dated June 3, 2007. The

18 title is "After Sanctions, Doctors Get Drug Company Pay."

19 Have you read this, Dr. Schulz?

20 A Uh-huh.

21 Q It begins by saying, "A decade ago the Minnesota Board of

22 Medical Practice accused Dr. --"

23 A I'm sorry, where are you reading from?

24 Q From the very first sentence.

25 A Mine says, "When Anya" is my first sentence.


55/238

61

1 DR. BARDEN: Okay. We're going to make this

2 Exhibit No. E.

3 MR. HUTCHINSON: Are we using numbers or

4 letters?

5 DR. BARDEN: We're using letters. And then

6 we'll come back to D.

7 (Schulz Deposition Exhibit E marked for

8 identification.)

9 BY DR. BARDEN:

10 Q Okay. Do you see at the top where it says, "After

11 Sanctions, Doctors Get Drug Company Pay?"

12 A Yes.

13 Q June 3, 2007, New York Times, correct?

14 A I do.

15 Q Have you read this article before?

16 A I have.

17 Q Okay. Looking at the first sentence, "A decade ago the

18 Minnesota Board of Medical Practice accused Dr. Faruk

19 Abuzzahab of a," quote, "'reckless, if not willful,

20 disregard,'" unquote, "for the welfare of 46 patients, 5

21 of whom died in his care or shortly afterward. The board

22 suspended his license for seven months and restricted it

23 for two years after that." Did I read that right?

24 A Yes, you did.

25 Q Okay. What percentage of physicians in Minnesota have

62

1 their license suspended, do you know?


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2 A No.

3 Q Do you have any idea at all?

4 A No.

5 Q It is an extraordinarily rare occurrence, isn't it,

6 Doctor?

7 MR. ALSOP: Object as speculative, lacking

8 in foundation. Don't speculate. He said twice he

9 doesn't know.

10 THE WITNESS: I don't know.

11 BY DR. BARDEN:

12 Q Now, looking down farther down the page, it says, "In its

13 disciplinary action against Dr. Abuzzahab." Have you

14 read the state board's disciplinary action report?

15 MR. ALSOP: You can answer that question,

16 Doctor.

17 THE WITNESS: No.

18 BY DR. BARDEN:

19 Q You didn't think that would be an important thing to do,

20 to -- you have a person on your clinical faculty who's

21 had a license suspended, but you did not read the state

22 board of licensing's report on him, correct?

23 MR. ALSOP: Object as argumentative.

24 MR. HUTCHINSON: This is the report from

25 1997?

63

1 BY DR. BARDEN:

2 Q The report of the state board of medical licensing that

3 suspended Dr. Abuzzahab's license. Have you read that

4 report?


57/238

5 A No. Oh, but, and the date of that was? You asked me if

6 I read the report. When was that?

7 Q Correct. And I get to ask the questions, fortunately.

8 MR. HUTCHINSON: Well, the first line says

9 ten years ago. A decade ago.

10 DR. BARDEN: Yes, that is correct.

11 MR. HUTCHINSON: Which would be 1997.

12 That's how I understand it.

13 DR. BARDEN: I believe that is the date.

14 BY DR. BARDEN:

15 Q It says further down, "Dr. Abuzzahab failed to appreciate

16 the risks of taking Patient No. 46 off Clozaril, failed

17 to respond appropriately to the patient's rapid

18 deterioration and virtually ignored this patient's

19 suicidality." Do you see that?

20 A Yes, I do.

21 Q That's remarkably similar to the accusations against

22 Dr. Olson in this case, right? Isn't that correct?

23 MR. ALSOP: Object as argumentative, a

24 misstatement.

25

64

1 BY DR. BARDEN:

2 Q He failed to respond appropriately to the patient's

3 deterioration and virtually ignored the patient's

4 suicidality. Aren't those the allegations in this --

5 MR. ALSOP: Object as argumentative.

6 MR. HUTCHINSON: I'll join.

7 MR. ALSOP: If you know, Doctor, go ahead.


58/238

8 THE WITNESS: Just to be clear, the

9 question, you're asking me about the allegations against

10 Dr. Olson, compared to these findings by the board ten

11 years ago.

12 BY DR. BARDEN:

13 Q Right. We're in the early process --

14 A Uh-huh.

15 Q -- of this legal litigation with regard to Dr. Olson's

16 conduct, correct?

17 A Right, right.

18 Q Yeah, but you've read Dr. Hudson and Dr. Pope's opinions,

19 right?

20 A Uh-huh.

21 Q Isn't this true, that --

22 A What I said is I read their opinions as it related to me.

23 I did not read their opinions as it related to Dr. Olson.

24 Q But in their, in their opinions which related to you,

25 they certainly clearly stated that it was their opinion

65

1 Dr. Olson failed to respond to Dan's deterioration and

2 virtually ignored his suicidality, correct?

3 A I can't recall.

4 Q How long ago did you read those?

5 A I believe they arrived in the end of May.

6 Q "The Times's examination of Minnesota's trove of records

7 on drug company payments to doctors found that from '97

8 to 2005, at least 103 doctors who had been disciplined or

9 criticized by the state medical board received a total of

10 $1.7 million from drug makers."


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11 A Where is that?

12 Q "The median payment over that period was $1,250; the

13 largest was $479,000." And you've read this before,

14 correct?

15 A Where are you reading from?

16 Q Page 2, at the top. Now, Doctor, Dr. Schulz, during the

17 time you've been at Minnesota from '99 to the present --

18 let's do it this way:

19 From '99 through the time that Dan

20 Markingson was a subject in the CAFE study, that is,

21 through 2004, how much money have you received from drug

22 firms?

23 A I --

24 MR. ALSOP: Object to --

25

66

1 BY DR. BARDEN:

2 Q I'm talking from all sources.

3 MR. ALSOP: It's irrelevant and vague, but

4 go ahead, Doctor. It's also lacking in foundation.

5 THE WITNESS: I can only make an estimate.

6 I believe that some years, from all sources, or putting

7 together work for different companies, some years -- I

8 want to make one more qualification. If I am asked to

9 give a lecture for a drug company, I will receive money

10 for the honorarium to give the talk, and then I will

11 receive money for my expenses to fly to the site and stay

12 in a hotel, eat dinner.

13 BY DR. BARDEN:


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14 Q I'm interested in all of that, all of those files, all

15 totalled.

16 A I can't estimate all of that, but I would say that some

17 years I have made $20,000 and some years I may have made

18 $50,000 or $60,000, for professional services and

19 expenses.

20 Q So over a five-year period, you'd estimate that of, what,

21 a quarter million dollars, more, less?

22 A It has to be less, if some years are 20,000 and other

23 years are higher. Maybe 150,000, 180,000 dollars, in

24 total.

25 Q And that's from all drug companies from all sources, and

67

1 that includes being an investigator on research studies,

2 speaker, honorarium, consultant, travel expenses

3 reimbursed, and everything else, correct?

4 A No. I appreciate your clarifying that. What I was

5 responding to was money I had received to give a lecture

6 or to consult, but I have been the principal investigator

7 of two studies recently by Eli Lilly.

8 MR. ALSOP: I think he asked up until 2004.

9 THE WITNESS: Oh, okay. I think the point

10 that I'm trying to make is to clarify my response to you

11 about money received, and that my answer to you was based

12 on describing to you money I'd received to give a lecture

13 or for the expenses to get back and forth from the

14 lecture.

15 I have also been the medical director of

16 some of the department's CME meetings, and we have


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17 received unrestricted educational support from

18 pharmaceutical companies to support these meetings, and

19 I'm aware on these databases that you have been talking

20 about that on occasion they will list that as money I

21 have received, when it's essentially gone straight to the

22 CME office.

23 DR. BARDEN: Objection, move to strike those

24 parts that are nonresponsive.

25

68

1 BY DR. BARDEN:

2 Q Looking for the dollar amount from any drug company, any

3 time, any kind of funding of any type sourcing from any

4 pharmaceutical company and ending up at you, and let's

5 start from 1999 through 2004, looking for a dollar

6 amount. And we don't really, we don't need to estimate

7 this eventually, because you do file income taxes. Is

8 that correct, Doctor?

9 A That's correct.

10 Q And you do report this as income, correct?

11 A Uh-huh.

12 Q And so, for example, if you're reimbursed for a trip to

13 Hawaii for a week, you do report that travel ticket as

14 income, do you not?

15 A I'm not -- the question was sort of long. I'm not quite

16 understanding the question.

17 Q Okay. If you receive a ticket to Hawaii from a drug

18 company to do a talk, you do report that to the IRS as

19 income, correct?


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20 A I haven't been to Hawaii, but wherever I might get the

21 talk, if the company sent me a check for my honoraria and

22 for the expenses, yes, I would report that.

23 Q What if they just gave you a plane ticket, do they ever

24 do that, send --

25 A Sometimes they do.

69

1 Q Do you ever report that?

2 A I don't report that.

3 Q So we're looking for a dollar amount, '99 to 2004.

4 A You know, but given the parameters that you've put, and I

5 just, I can only make the estimate that I answered

6 before. That for speaking engagements and the expenses

7 for those speaking engagements, my estimate is that --

8 for the beginning of 1999 through the end of the fiscal,

9 academic fiscal year 2004, June 2004?

10 Q Uh-huh.

11 A Five years? I would say maybe 180,000.

12 Q $180,000. And that's in addition to whatever salaries or

13 clinical fees you're getting. Okay.

14 A I don't receive clinical fees above and beyond my salary.

15 Q Okay, so this is above and beyond your salary, correct?

16 A Correct.

17 Q $180,000 over that five-year period?

18 A For five years.

19 Q Above and beyond your salary?


21 Q Let's say all the way from medical school to today, how

22 much money have you received from drug companies?


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23 MR. ALSOP: Lacking in foundation,

24 irrelevant, but go ahead, Doctor. Also speculative.

25 THE WITNESS: The reason I'm pausing is that

70

1 I really have no idea how to estimate the amount of money

2 from medical school, I graduated 35 years ago, of how

3 much money I may have received from companies.

4 BY DR. BARDEN:

5 Q Could easily be a million dollars, though, right?

6 A I have no idea.

7 MR. ALSOP: Object to speculative.

8 BY DR. BARDEN:

9 Q You have no idea.

10 A I have no idea if it's near a million dollars or not.

11 Q Is it going up over the -- I mean, has it gone up since

12 2004? Are you receiving more now than you did then?

13 A Not in the last year, no. As a matter of fact, it's gone

14 down the last year.

15 Q How much has it been from 2004 till currently?


17 relevancy, but go ahead, Doctor.

18 BY DR. BARDEN:

19 Q And again, this is all reported on your income taxes,

20 right?

21 A Uh-huh, I understand. I think that it may have been as

22 high as $72,000 in 2005, and 2006 I believe it is, it's

23 about 26,000.

24 Q Okay, so we're certainly over a quarter million since

25

Schulz Deposition

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