1 1 NO. 90-CI-06033 JEFFERSON CIRCUIT COURT DIVISION ONE 2 3 4 JOYCE FENTRESS, et al PLAINTIFFS 5 6 VS TRANSCRIPT_OF_THE_PROCEEDINGS __________ __ ___ ___________ 7 8 9 SHEA COMMUNICATIONS, et al DEFENDANTS 10 11 * * * 12 13 14 MONDAY, DECEMBER 12, 1994 15 VOLUME L 16 17 * * * 18 19 20 21 _____________________________________________________________ REPORTER: JULIA K. McBRIDE 22 Coulter, Shay, McBride & Rice 1221 Starks Building 23 455 South Fourth Avenue Louisville, Kentucky 40202 24 (502) 582-1627 FAX: (502) 587-6299 25 2 1 2 I_N_D_E_X _ _ _ _ _ 3 Hearing in Chambers...................................... 4 4 Proceedings in Open Court................................ 6 5 Hearing in Chambers...................................... 9 6 Verdict..................................................31 7 Reporter's Certificate...................................33 8 9 * * * 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 A_P_P_E_A_R_A_N_C_E_S _ _ _ _ _ _ _ _ _ _ _ 3 4 FOR THE PLAINTIFFS: 5 PAUL L. SMITH Suite 745 6 Campbell Center II 8150 North Central Expressway 7 Dallas, Texas 75206 8 NANCY ZETTLER 1405 West Norwell Lane 9 Schaumburg, Illinois 60193 10 IRVIN D. FOLEY Rubin, Hays & Foley 11 300 North, First Trust Centre Louisville, Kentucky 40202 12 13 FOR THE DEFENDANT: 14 EDWARD H. STOPHER Boehl, Stopher & Graves 15 2300 Providian Center Louisville, Kentucky 40202 16 JOE C. FREEMAN, JR. 17 LAWRENCE J. MYERS Freeman & Hawkins 18 4000 One Peachtree Center 303 Peachtree Street, N.E. 19 Atlanta, Georgia 30308 20 * * * 21 22 23 24 25 4 1 The Transcript of the Proceedings, taken before 2 The Honorable John Potter in the Multipurpose Courtroom, Old 3 Jail Office Building, Louisville, Kentucky, commencing on 4 Monday, December 12, 1994, at approximately 8:50 A.M., said 5 proceedings occurred as follows: 6 7 * * * 8 9 (HEARING IN CHAMBERS) 10 JUDGE POTTER: I've said this before off the 11 record, but I think maybe we ought to get it on the record. 12 This morning my sheriff called me at home and told me that the 13 daughter of Ms. Davis had called her and said that her mother 14 was in the hospital, and I kind of -- anyway, that her mother 15 had a serious physical problem. I called Mr. Foley and 16 Mr. Stopher and asked them if they could come in a little 17 early and just to outline that we might have a problem with 18 Ms. Davis. I got here a little early myself. 19 I called Ms. Ryan at home, and she was planning 20 to leave for work and said she'd be at work by 8:15. She gave 21 me her work number. Ms. Jones's home said she was already at 22 work, and I called her at work and she said she would be there 23 till 3:30. I did not call Mr. Fitch because it was, like, 24 7:30 in the morning and I didn't see any reason to wake him 25 up, and we only have one number for him. 5 1 I can't remember whether it was before or after 2 you-all got here -- it was before you-all got here because I 3 told you this information. I called Jewish Hospital and was 4 told that Ms. Davis was a patient and admitted to 515. I 5 can't remember if I called back or got them to transfer me to 6 the nursing station on 515 and spoke to Ms. Kim Owen. She 7 told me that they were thinking Ms. Davis had had a stroke. 8 She was admitted on Saturday and they anticipated she, quote, 9 would be with us the rest of the week, end quote. Her speech 10 is impaired. She has hemiparesis, and a CT scan showed an 11 infarct on the right frontal lobe. I may have gotten it a 12 little garbled, but I think it's -- does anybody want to do 13 anything more about investigating Ms. Davis's position before 14 we go on? 15 Okay. It's my understanding you-all have 16 reached some kind of agreement on what we'll do here; is that 17 right? 18 MR. FREEMAN: Paul wants to draw from the three, 19 and that's agreeable with us. 20 JUDGE POTTER: Okay. What I'm going to do is 21 these are the three: Fitch, Ryan and Jones. (Puts each name 22 in separate envelope) And I put an O on the one that they want 23 and a Z on the one that you want; is that right (Laughter)? 24 MR. STOPHER: How do you know which is which? 25 JUDGE POTTER: I don't know. I don't know. 6 1 Then we'll bring in the clerk and see if she chooses the O 2 because it's the nice friendly letter instead of the Z. 3 Mr. Foley, would you walk over to mental inquest 4 and ask the clerk to step over? 5 (MR. FOLEY LEAVES AND REENTERS CHAMBERS 6 WITH THE CLERK) 7 JUDGE POTTER: There are three envelopes, Madame 8 Clerk, would you pick one. 9 MADAME CLERK: I'm going to pick Number Three. 10 I have three children. 11 JUDGE POTTER: Okay. How do you know that isn't 12 Number One? 13 MADAME CLERK: I started counting from the left. 14 MR. SMITH: You're not Chinese, are you? 15 MADAME CLERK: No. 16 SHERIFF CECIL: Excuse me. There's a phone call 17 that just came in from an Indianapolis reporter that has 18 learned already that Ms. Davis has had a stroke, and she's 19 wanting to know when it happened and all of that. 20 JUDGE POTTER: That's all right. Just tell them 21 that a juror has been excused and the alternate is Joyce Ryan. 22 SHERIFF CECIL: Okay. Thank you. 23 (HEARING IN CHAMBERS CONCLUDED; THE FOLLOWING 24 PROCEEDINGS OCCURRED IN OPEN COURT) 25 SHERIFF CECIL: All rise. The Honorable Judge 7 1 John Potter is now presiding. Jurors are present. Court is 2 in session. 3 JUDGE POTTER: Good morning, ladies and 4 gentlemen. Let me tell you something you probably already 5 know. One of the jurors that was selected to sit on the jury 6 went to the hospital over the weekend. An alternate -- the 7 parties agreed that one of the three alternates could come in 8 and serve in that juror's place. There was kind of a reverse 9 random draw of the three that were drawn out randomly on 10 Friday. One was drawn out and now you are 12. 11 I'm going to have my sheriff pass out to you 12 now -- and the reason I'm doing this now is because I'm afraid 13 I'll forget if I don't. There are two sets of things there 14 and there should be twelve of each. What this is is an index 15 of all of the exhibits. It will just help you organize 16 things. 17 SHERIFF CECIL: (Hands documents to jurors). 18 JUDGE POTTER: I didn't mean to interrupt myself 19 but I was afraid I'd forget to do that. I'm sure some of 20 you-all would like to send a card or something to Ms. Davis. 21 What I'm going to do is I talked to the attorneys and we're 22 going to send some flowers tomorrow. Yes, sir, Mr. 23 Hollifield. 24 JUROR HOLLIFIELD: We sent some flowers a few 25 minutes ago on behalf of the jury. 8 1 JUDGE POTTER: Okay. Thank you very much. I 2 was just going to say that if you wanted to put a card, you 3 could add it to the flowers. I will stop by the hospital and 4 see her today. Okay. I don't know if you heard this or not, 5 but apparently it was a very mild stroke. 6 The decisions you will have to make today, as I 7 said, I was going to require that you-all deliberate from nine 8 to five. Those are the parameters. You can deliberate 9 longer, if you want to. As far as lunch goes, you have two 10 choices. You can have it brought to you in the jury room and 11 deliberate while you're having lunch. The sheriff has a menu 12 and you can order, check what you want. It takes about 45 13 minutes, about. Wasn't it, Marcia, about 45 minutes or so to 14 get here? 15 SHERIFF CECIL: Yes, sir. 16 JUDGE POTTER: So that will help you plan that. 17 Your other alternative is we come in the courtroom and we 18 stand in recess for an hour or whatever it is and you-all can 19 go out and have lunch like you do on normal days. That's a 20 decision you have to make yourselves. And if you'll just let 21 my sheriff know so the Court Reporter can be here. If you do 22 decide to recess, let us know ahead of time so we can get the 23 Court Reporter and the various people here. 24 Madame Sheriff, will you step up here and raise 25 your right hand, please. 9 1 SHERIFF CECIL, after first being duly sworn, 2 proceeded as follows: 3 4 JUDGE POTTER: Okay. Would you-all please go 5 with my sheriff. 6 (RECESS; HEARING IN CHAMBERS AT 10:15 A.M.) 7 JUDGE POTTER: As you-all may or may not know, 8 the jury has advised my sheriff that they're going to order 9 lunch and have them bring it to the jury room. I wondered if 10 we could, because of Mr. Smith's clients and the press people 11 and maybe your clients, too, Mr. Freeman and Mr. Stopher, 12 could get an agreement that there will be like an hour or hour 13 and a half between the time we know we have a verdict and the 14 time we announce it in the courtroom. That way if some of 15 your clients want to go home or whatever... 16 MS. ZETTLER: I think most of them want to stick 17 around the building, if that's okay, Judge. 18 JUDGE POTTER: Okay. I just didn't know if it 19 would be beneficial to both sides. I mean, because we could 20 -- I never try and predict what a jury's going to do, but we 21 could be sitting here just like we are now tomorrow afternoon. 22 I mean, I thought that would allow people to... 23 MS. ZETTLER: If we could just get a couple of 24 them that need to go to work and want us to call them. If we 25 could just get like a half an hour or something. 10 1 MR. FREEMAN: Or even 15 minutes. 2 MS. ZETTLER: Yeah. As long as we can get some 3 notice and have a few minutes to make some phone calls and 4 have them get here as soon as they can. We don't necessarily 5 have to wait if we have the majority of them here. 6 MR. STOPHER: Well, I think about a 30-minute 7 time period. And then if everybody gets here early we can 8 obviously shorten that down, but I think it may be helpful to 9 have at least 30 minutes. 10 JUDGE POTTER: All right. This is what I'm 11 going to do. I'm going to guarantee you can rely on this even 12 though nobody asked for it, that if they tell me before 1:00, 13 it will be an hour; in other words, if they come in at 10:00, 14 the verdict will be announced at 11:00. And if it's after 15 1:00, it will be a half hour because we might be 4:00 or 5:00 16 in the afternoon, and that way your clients won't have to come 17 in early in the morning tomorrow unless they want to. They'll 18 know that they have an hour to get down here. 19 After they reach a verdict, whether it is a 20 final verdict on this phase or a final verdict on the last 21 phase, I plan to spend a few minutes with the jury. Depending 22 on what time of day it is, I may offer to take them to lunch, 23 and then they're going to spend some time with Doctor Bell, 24 Doctor Roger Bell. This is a procedure that I think started 25 with the Carrollton bus crash, and I think others -- he's done 11 1 it in other states and he's done it in other trials here in 2 Kentucky. He is at the University of Louisville. He's a 3 psychologist. Have him spend an hour or two with the jury, 4 kind of letting them thrash out some of their feelings. I 5 have told him that although we heard some very dramatic 6 testimony in this case about injuries, each side for its own 7 reasons, had kept out any gory pictures. He still feels, and 8 I agree with him, that two and a half months cooped up with 9 something, it will be beneficial for him to talk with him. 10 MS. ZETTLER: Can we talk to him, too, Judge? 11 Two and a half years. 12 MR. SMITH: It will take more than an hour to 13 cure any problems you have, Nancy. 14 JUDGE POTTER: I don't know. The other thing I 15 have thought about with this jury, and I talked to him about 16 it and he thinks if they came in early enough, you know, came 17 in at 10:00 in the morning to the point to where their day is 18 shot anyway, I would like to show them a folder. I have 19 checked around and there are several in Louisville, the most 20 convenient is The Courier-Journal. They apparently, although 21 they don't do rotogravure, I talked to somebody in the 22 industry that's not connected with this case and not connected 23 with The Courier-Journal, and helped -- he gave me some 24 companies. And I guess what I want to ask you-all, does 25 anybody see any problem with me asking The Courier if, after 12 1 this is over, they object to the jury viewing their pressroom? 2 MS. ZETTLER: If we go to another phase, you 3 mean after that phase? 4 JUDGE POTTER: Sure. After the final phase. 5 And this might just depend on -- I mean, if it's a second 6 phase and it's 4:00 in the afternoon and it's close to 7 Christmas, I'm not going to take any more time than possible. 8 If they came in Wednesday at 10:00, I might plan to spend some 9 time with them. If I were thinking of taking them to Gateway 10 or Fetter or something like that, I really wouldn't feel I 11 needed to ask you-all because I would just go ahead and 12 contact Fetter, but at The Courier-Journal because they're 13 reporting the trial, does anybody see any problem with The 14 Courier, allowing them, if they're willing to, and as this 15 person said, that's probably closer to what went on at 16 Standard Gravure because it's the double floors and that kind 17 of stuff. And I haven't thought it through, obviously. 18 MR. FREEMAN: Do you think The Courier-Journal 19 would be running through there taking pictures of them and 20 have a big article? 21 JUDGE POTTER: Well, that would be the thing. I 22 would ask them that they could take one picture of them if 23 they wanted to. Well, I guess I would ask them not to take 24 any pictures of them. And if they say no, then I either don't 25 take them or we go to another plant. Does anybody see any 13 1 problem with my asking The Courier if they care to do that? 2 MR. SMITH: I don't have any problem. 3 JUDGE POTTER: I've got to plan ahead a little 4 bit, and so some of what I'm going to say might make somebody 5 think, well, I'm planning on a Plaintiffs' verdict or 6 anticipate a Plaintiffs' verdict, and some might indicate that 7 I'm thinking the other way, but I want to deal with these 8 issues ahead of time, if I can. If there is a Plaintiffs' 9 verdict, I would like to take a day's recess, and although I 10 normally don't get involved in settlement, I would like to say 11 something to you-all and then have you meet with a mediator to 12 see if that portion of it could be settled, because I really 13 do believe the dynamics there are such that it would be to 14 both parties' benefit to settle it. I don't -- this part of 15 it I haven't even thought about trying to settle it. 16 But with that in mind, I was going to ask Lilly 17 to have somebody present who had substantial authority to talk 18 for the company. From what went on this morning, in the sense 19 you waited for a company representative to be here, I take it 20 you have somebody here who has substantial authority. 21 MR. FREEMAN: Yes, we did. 22 JUDGE POTTER: I never met Mr. West, Mr. Baker, 23 what was his name? 24 MR. FREEMAN: Jim Burns. 25 JUDGE POTTER: Burns. Had never met him. Along 14 1 that line, Mr. Smith, you not only have the plaintiffs you 2 have here, you have a subrogation of workers' compensation 3 claim. Would you contact that person and make sure that 4 either -- I think Mr. Mahan represents them here in 5 Louisville. Would you make sure what his schedule is so that 6 he could be available with somebody at the company that could, 7 you know, make a decision? 8 MR. SMITH: All right. 9 JUDGE POTTER: Have you gotten together the list 10 of questions that you want from Lilly about the Prozac 11 profits? 12 MR. SMITH: Ms. Tilton did a reanalysis based on 13 what she heard, and she had a list of additional questions 14 but, frankly, what we were doing while we got working toward 15 final arguments and things of that nature, to be honest, I put 16 those aside. It may be that we'll be able to go with her 17 reanalysis based on information provided at the hearing. If 18 we have additional questions, we would certainly expedite 19 those. 20 JUDGE POTTER: All right. My thought on that 21 would be rather than do them in an interrogatory or anything 22 like that, that if you have some questions you could get them 23 ahead of time. Mr. Stanford would look up the answers and 24 have somebody here to answer it as a live witness, either 25 himself or something else. I mean, provided the questions are 15 1 relevant and, you know, otherwise admissible. But rather than 2 go any kind of interrogatory route, my thought would be to 3 order Lilly to have somebody here that could answer those 4 questions in person. And so maybe you ought to use this break 5 to have her get her list up and get it over to them so they 6 can be in a position to say even though it's relevant, it's so 7 confidential we can't disclose it. But at any rate they can 8 have somebody that would be like Mr. Stanford that can say 9 that's available but I haven't looked it up. 10 Okay. Can anybody think of anything else that 11 needs to be taken up while we wait? Mr. Smith, you said 12 something about plaintiffs in the courtroom while the jury was 13 deliberating. What did you mean? 14 MR. SMITH: Yes. Well, in Texas, the plaintiffs 15 can be in the courtroom while the jury deliberates. Nancy 16 said that that's prohibited in Chicago. I didn't know whether 17 there was any rule against that. 18 MR. FREEMAN: I've never heard of that. 19 JUDGE POTTER: I mean, quite frankly, I would 20 leave it up to my sheriff because they're supposed to watch 21 the courtroom if there are people there. 22 MR. SMITH: Vanessa had -- she was called back 23 to the courthouse, and she said, "I want your people" -- she 24 said they can stick around, they just can't wait in the 25 courtroom and they said that's fine. I mean, that's not a 16 1 problem. 2 JUDGE POTTER: There's no that I know of, Mr. 3 Stopher, do you or Mr. Foley, any prohibition against it? 4 It's just purely a mechanical, how many people the sheriffs 5 have to watch. And if it becomes extremely inconvenient for 6 your people to be upstairs, let me know and I'll talk to the 7 sheriff's department and we'll keep the courtroom open. 8 MR. SMITH: Had the Court thought --in the event 9 that there is a punitive damage phase, had the Court given any 10 thought as to when that particular phase would start? 11 JUDGE POTTER: Within 24 to 36 hours after the 12 verdict comes in. As I said, I want one day to have you-all 13 talk about settlement. And I'll be frank with you, I have 14 thought about a pep talk myself, and I've talked to Mike 15 O'Connell. He is in town. I have done no more than say, 16 "Where are you going to be? 17 "I'm going to be in town. 18 "If I asked you to come over quickly and try and 19 deal with something in this case would you be willing to? 20 "Yes." That's all I've done with him. That's 21 my thought, is really to be a day's break and then go into it. 22 MR. SMITH: Can I have my Christmas presents 23 sent here? 24 MR. FREEMAN: And the tree. 25 JUDGE POTTER: Mr. Smith, I think if we get to 17 1 that phase you will have already gotten your Christmas 2 present. 3 MR. SMITH: That's probably true. I got my 4 rotten potato already this morning, Your Honor. 5 JUDGE POTTER: Well, I don't know that one, but 6 I asked you-all if there was anything you thought we needed to 7 take up. Is there anything? 8 MR. SMITH: Can't think of a thing. 9 MS. ZETTLER: Can't think of anything right now. 10 MR. STOPHER: (Shakes head negatively). No. 11 No. Sorry. I forgot we're on the record. 12 JUDGE POTTER: Yes. Okay. That's it. Submit 13 submit. 14 MR. SMITH: Let the record reflect that Mr. 15 Stopher nodded off. 16 MR. STOPHER: Nodded off. (Laughter). 17 (HEARING IN CHAMBERS CONCLUDED; RECESS; 18 HEARING IN CHAMBERS RECONVENED AT 11:43 A.M.) 19 JUDGE POTTER: I guess the easiest way to do 20 this, I came back here about ten minutes ago just to check on 21 things, and my sheriff started to explain something to me. 22 And I guess the easiest way to do, rather than me paraphrase 23 it, why don't you just tell them not only what you told me but 24 everything else you know. 25 SHERIFF CECIL: Okay. Mr. Hollifield knocked on 18 1 the door, the jury foreman, and explained to me that one of 2 the jurors had overheard something in the hall the day that 3 Ms. Davis became sick. So he said that he had told her not to 4 say whatever she heard because he didn't want it to influence 5 himself or any other jurors. So he wanted to express that to 6 me in case she needed to say something to the Judge and to the 7 attorneys. I have no idea what it is. 8 JUDGE POTTER: And the juror is Ms. Duncan; is 9 that right? 10 SHERIFF CECIL: Uh-huh. 11 MR. STOPHER: I'm confused. Something was said 12 to Mrs. Davis in the hall? 13 SHERIFF CECIL: I don't know. Tammy Duncan, the 14 one juror, overheard something in the hall the day that 15 Ms. Davis became sick, so I don't know who it was she heard or 16 what she heard. 17 MR. SMITH: Was it concerning Ms. Davis or was 18 it concerning something else? 19 SHERIFF CECIL: I don't know. 20 MR. SMITH: You're just using that as it was the 21 day it was said? 22 SHERIFF CECIL: It was the day that this was 23 said. 24 JUDGE POTTER: And have you talked just to 25 Mr. Hollifield or have you talked to Ms. Duncan? 19 1 SHERIFF CECIL: Ms. Duncan came to the door 2 while Mr. Hollifield was saying that and, you know, she stood 3 there. That's how I knew it was her. 4 JUDGE POTTER: Oh. He didn't actually tell you 5 it was Ms. Duncan? 6 SHERIFF CECIL: No. He just said one of the 7 jurors. And while he was trying to explain that to me, she 8 came to the door and said she had heard something, but I don't 9 know what. I just told her to wait until everyone returned to 10 see if it needed to be said since she didn't report it that 11 day. 12 JUDGE POTTER: Anybody got any other questions 13 of my sheriff? 14 And that's really as much as you can think about 15 went on? 16 SHERIFF CECIL: Yes. 17 JUDGE POTTER: Okay. Thank you very much, 18 Marcia. 19 SHERIFF CECIL You're welcome. 20 (SHERIFF CECIL LEAVES CHAMBERS) 21 JUDGE POTTER: Mr. Smith. 22 MR. SMITH: Well, we don't know what she heard. 23 We don't know who she heard it from. We don't know whether it 24 was pro or con. We don't -- I mean, I guess the issue is 25 should the Court advise Ms. Duncan not to relate that -- 20 1 obviously, the Court should advise Ms. Duncan not to relate 2 what she heard to other members of the jury. I guess the 3 issue is should we bring Ms. Duncan in and ask her what she 4 heard and if that was a violation of the Court's instructions 5 and whether or not any rule has been violated. 6 JUDGE POTTER: Mr. Stopher. 7 MR. STOPHER: Well, obviously, if it does not 8 relate to the case, I have no concern. If it is -- I mean, if 9 somebody asked how she was feeling or some such thing, I don't 10 see that as being a problem. But if it is something that 11 relates to the case, it should have been reported by Ms. Davis 12 and it should have been reported by Ms. Duncan. 13 JUDGE POTTER: You mean, by Ms. Duncan. 14 MR. STOPHER: No. It should have been reported 15 by both of them, because I assume that Ms. Davis was still a 16 juror at that time. 17 JUDGE POTTER: I interpreted what they said 18 differently. That was just her way of identifying what day it 19 was. I don't think Ms. Davis had anything to do with it. 20 MR. STOPHER: Oh. Then I misunderstood. 21 MR. SMITH: I got the impression that it did not 22 relate to Ms. Davis. 23 MR. STOPHER: I thought the statement was made 24 to Ms. Davis and that Ms. Duncan overheard it. 25 MR. SMITH: That's what I thought at first, but 21 1 I think it's been cleared up. 2 MR. STOPHER: Okay. I stand corrected on that, 3 then. Obviously, it was only Ms. Duncan that should have 4 reported it. 5 JUDGE POTTER: Do we have any choice? I mean, 6 don't we call her in, ask her what she overheard and then ask 7 her whether or not that would influence her in her 8 deliberations? I mean, is there any choice? 9 MR. STOPHER: I don't think there's any choice. 10 And, hopefully, it is nothing of any import. Hopefully, it is 11 nothing that has been relayed to anybody else. 12 JUDGE POTTER: Mr. Smith, do you think we have 13 any -- is there a Plan B? 14 MR. SMITH: Well, I think we should carefully 15 consider this. If we pull her out now and bring her into 16 chambers with the lawyers there, what's the effect that that's 17 going to have on her and what's the effect it's going to have 18 on the other members of the jurors. Obviously, though, my 19 first inclination is similar to Mr. Stopher's, you know, that 20 we wouldn't want anything she heard to be, A, related to 21 anybody else and, B -- anybody else on the jury and, B, 22 something that would influence her judgment, I guess. I'm 23 just wondering maybe what the best way to question her would 24 be without it influencing or causing concern to other members 25 of the jury. 22 1 MR. STOPHER: Well, I share that concern, 2 obviously. I would recommend under this scenario, I think the 3 less contact that the attorneys have at this point, the better 4 off we all are. I would recommend, and I know that in the 5 past you've been reluctant to do this, but I think that given 6 the fact that the jury is now deliberating, I think that the 7 questioning ought to be done just strictly by you alone with a 8 record because -- 9 JUDGE POTTER: I tell you what. I'll do the 10 questioning, but I want a representative of each side present. 11 MR. SMITH: Yeah. I think the lawyers need to 12 be present. 13 MR. STOPHER: I would suggest that we just have 14 one from each side. 15 JUDGE POTTER: That's what I say, a 16 representative. That way it's less intimidating. And, of 17 course, the big question is -- 18 MR. SMITH: You-all didn't take a vote; you just 19 bolted. 20 MR. MYERS: You wanted the intimidating people 21 to get out. 22 JUDGE POTTER: Of course, what all of us sitting 23 here thinking, is am I the one that said it. 24 (MR. MYERS AND MS. ZETTLER LEAVE CHAMBERS; 25 MS. DUNCAN ENTERS CHAMBERS) 23 1 JUDGE POTTER: Hi, Ms. Duncan. 2 JUROR DUNCAN: Hello. 3 JUDGE POTTER: Have a seat, please. 4 Ms. Duncan, I understand on top of everything 5 else you're not feeling very well today. 6 JUROR DUNCAN: No, I'm not. 7 JUDGE POTTER: Okay. They've altered the 8 luncheon menu and there will be some chicken soup or something 9 like that for you. 10 JUROR DUNCAN: Okay. Thank you. 11 JUDGE POTTER: Mr. Hollifield mentioned that one 12 of the jurors had overheard something during the trial. And 13 although he didn't tell my sheriff it was you, I assume it 14 was; is that right? 15 JUROR DUNCAN: Yes. 16 JUDGE POTTER: Do you want to tell me what you 17 overheard? 18 JUROR DUNCAN: Okay. I was out in the hallway 19 while some discussions were going on, and I overheard that the 20 Lilly lawyers -- can I call you that? 21 MR. STOPHER: Sure. 22 JUROR DUNCAN: Okay. That the Lilly lawyers 23 were trying to settle out of court with the Plaintiffs, and I 24 just, you know, caught that to some degree. I just overheard 25 the lawyers discussing it as I was walking by, and that kind 24 1 of, you know... 2 JUDGE POTTER: Okay. Let me ask you this: Do 3 you remember who you heard say it or in what context you heard 4 it? Because it's not correct. And so what I'm trying to 5 think is how the mistake came about. Was it just somebody 6 joking about -- I mean, a lawyer could say something like, you 7 know, don't put these people -- these jurors through all this; 8 why don't you settle or, you know what I mean, in a joking way 9 and not really -- just use the word "settle" but not in any 10 respect with anybody being talking about settlement. Do you 11 remember what context it came up in or you just heard the word 12 "settle"? 13 JUROR DUNCAN: I just heard that they were 14 settling and everything out of court, and that just -- it 15 didn't really register right away; it did later. 16 JUDGE POTTER: Okay. Were there two lawyers or 17 was I talking or the sheriff talking or can you remember who 18 was talking to who? 19 JUROR DUNCAN: I'm pretty sure it was two 20 lawyers. 21 JUDGE POTTER: On opposite sides or... 22 JUROR DUNCAN: I'm pretty sure they were on 23 opposite sides. 24 JUDGE POTTER: Okay. As I say, the parties are 25 diametrically opposed on this case, and so they have not -- 25 1 the reason you're back there is because they have not settled 2 it, and I can tell you I don't think either side has, you 3 know, thought about that as a possibility because each side -- 4 they're so far apart on what went on. Knowing that, do you 5 think you can go in and deliberate and decide the case based 6 on what you heard from the witness stand and what you, you 7 know, think is the right outcome? 8 JUROR DUNCAN: Yes. 9 JUDGE POTTER: Do you think the fact that, for 10 at least a couple of days, you were under the impression that 11 these people had talked about settling, do you think that has 12 influenced you to the point to where maybe you couldn't decide 13 it without -- just what you hear from the witness stand, or do 14 you think you can decide it from just what you hear from the 15 witness stand? 16 JUROR DUNCAN: I can decide from what I heard 17 from the witness stand. It just confused a lot of situations, 18 and that's why I kind of had the question brought up. 19 JUDGE POTTER: Okay. Did you mention to anybody 20 else in the jury room about what you thought you overheard? 21 JUROR DUNCAN: No. I just said I overheard 22 something and I wanted to know what I should do about it. 23 MR. SMITH: That's appropriate. 24 JUDGE POTTER: Okay. Well, I think you did the 25 right thing. Could I ask you to just wait out in the hall for 26 1 a split second, Ms. Duncan? 2 (JUROR DUNCAN LEAVES CHAMBERS) 3 JUDGE POTTER: Does anybody have anything they 4 want to say? 5 MR. STOPHER: Well, I think I probably ought to 6 go report this to my people and see what their views are. I 7 don't think I've got the authority to make a decision on this 8 one way or the other. I would suggest that you ask her not to 9 discuss this or what was discussed in this room with anybody, 10 and that if she does that or if anybody attempts to discuss it 11 with her, to report it to you again. 12 JUDGE POTTER: Does anybody have the slightest 13 clue? 14 MR. SMITH: No. 15 MR. STOPHER: I can't imagine. I mean, every 16 time I left this door, I made sure that I didn't say anything 17 until I was over there at my table. And I certainly never 18 talked to you or to Nancy or to Irv about this subject at all, 19 ever, and that is the God's truth. I can't imagine -- it may 20 well have been somebody with Court TV or a reporter or some 21 local lawyer saying something that they didn't know anything 22 at all about. I can't imagine. I mean, this comes as an 23 absolute shock to me. 24 JUDGE POTTER: Well, the only thing I can think 25 of -- and I didn't ask her what day it was, but assuming it's 27 1 the day that Ms. Davis got sick, somebody might have said 2 can't we settle on going without an alternate or something, 3 you know, used that magic word. 4 MR. SMITH: It could have been that. 5 MR. STOPHER: I don't know. I think to try to 6 deceive her into thinking that it must have related to 7 something else, I don't know. I mean, I have no idea who made 8 the statement. I'm not even sure that she knows who made the 9 statement. But I would try to reenforce in her mind that the 10 Court has been pretty well informed about all aspects of this 11 case, not only what's going on in the courtroom but what's 12 going on outside the courtroom, and that if any such statement 13 was made, that it is not accurate and was made by somebody 14 that did not have knowledge and that it should not ever be 15 considered by her and should be disregarded by her as having 16 no basis in truth at all. 17 JUDGE POTTER: Okay. And you think it would be 18 unwise to say the only thing anybody could think of was we 19 were talking about settling on whether to let Ms. Davis go or 20 not? 21 MR. STOPHER: I hesitate to try to cure 22 something that we don't even know what it is we're trying to 23 cure. 24 MR. SMITH: I agree. 25 MR. STOPHER: I hate to try to fix something 28 1 when I don't know what it is we're fixing. 2 JUDGE POTTER: Let me ask you this, Mr. Stopher. 3 Before we get her back in, do you want to talk to your people 4 or just go ahead and live with it the way it is? 5 MR. STOPHER: I think if my people have an 6 objection it's probably going to be to ask for a mistrial and 7 to clear the whole process, and we can do that after she 8 leaves so... 9 JUDGE POTTER: Ms. Duncan, can I get you to step 10 back in, please? 11 (MS. DUNCAN REENTERS CHAMBERS) 12 JUDGE POTTER: Ms. Duncan, the lawyers are at a 13 loss as to what you might have overheard. I have been 14 involved in this case, and although I don't know everything 15 that goes on, I've been pretty well up on things, and neither 16 I nor the lawyers can understand any basis for anybody to say 17 that. You say -- I believe my sheriff told me it was the day 18 Ms. Davis got sick? 19 JUROR DUNCAN: I'm pretty sure that's the day it 20 was. 21 JUDGE POTTER: Okay. You-all went out to lunch, 22 and then you we were informed when you came back from lunch 23 that she was sick, and then we waited around here awhile and 24 then you-all went home. Was it while she was still here or 25 was it after she got sick? 29 1 JUROR DUNCAN: I don't really -- I'm not sure if 2 it was that day, the day before or the day after, but I 3 remember it was around about that time. 4 JUDGE POTTER: Okay. Well, one reason I'm 5 asking is because everyone is just -- we're not saying that 6 you aren't telling us what you believe to be true; it's just 7 that everyone is mystified as to how that could have been said 8 or somebody would have said something you thought was that. 9 I'm going to stress upon you the importance of not mentioning 10 to anybody else what you heard. 11 JUROR DUNCAN: I didn't. 12 JUDGE POTTER: Okay. And I'm going to take you 13 at your word that you can decide the case based on what you 14 heard from the witness stand and the evidence and the 15 argument, discussion with the other jurors, and not based on 16 something that you would be influenced by something you 17 thought you heard outside the courtroom. Can you do that? 18 JUROR DUNCAN: Yes, sir. 19 JUDGE POTTER: Okay. Thank you very much. 20 Would you want my sheriff to get you-all any sweaters or 21 jackets? I'll try and get them to crank up the heat. 22 (JUROR DUNCAN LEAVES CHAMBERS) 23 MR. SMITH: Another thing that just occurred to 24 me. We're being watched like hawks by the press in this case 25 and, you know, obviously you've come back over. I don't 30 1 know -- I would imagine they've noticed that. There may be 2 some rumor already that there was some questioning of some 3 juror. Can we get some instructions that we've been 4 instructed by the Court not to reveal what it was? I'm 5 getting more and more sensitive about this, and I'm sure you 6 are, too, Ed. 7 MR. STOPHER: As far as I'm concerned, we can 8 represent to the press that Ms. Duncan is not feeling well and 9 that the temperature in the room was a concern of hers. 10 JUDGE POTTER: Mr. Stopher, I'm kind of back to 11 where you were when you said don't try and fix something that 12 we didn't know what needed to be fixed. I would hesitate to 13 just flat-out tell the press something that may not be true. 14 You-all can just -- I don't know. Do whatever you want. 15 MR. SMITH: I guarantee you the first thing 16 that's going to happen is one of those reporters is going to 17 grab us and say what was that all about. And, you know, to 18 factually report what it was about, I think is 19 counterproductive to the entire situation. 20 MR. STOPHER: I agree. That will be tomorrow 21 morning's headline. 22 JUDGE POTTER: All right. How about you-all 23 just say that one of the jurors had a small problem and the 24 Judge had ordered you-all not to talk about it. 25 MR. STOPHER: Okay. That's fine. 31 1 MR. SMITH: All right. 2 (HEARING IN CHAMBERS CONCLUDED; RECESS; 3 THE FOLLOWING PROCEEDINGS OCCURRED IN 4 OPEN COURT AT 2:55 P.M.) 5 SHERIFF CECIL: All rise. The jury is entering. 6 All jurors are present. 7 JUDGE POTTER: Please be seated. 8 Ladies and gentlemen of the jury, have you 9 reached a verdict? 10 JUROR HOLLIFIELD: Yes, we have, Your Honor. 11 JUDGE POTTER: Mr. Hollifield, would you hand 12 the verdict to my sheriff, please. 13 JUROR HOLLIFIELD: (Hands document to Sheriff 14 Cecil). 15 SHERIFF CECIL: (Hands document to Judge Potter). 16 17 JUDGE POTTER: (Reviews document) The verdict of 18 the jury is as follows: We, the Jury, do not find Eli Lilly 19 and Company at fault. Signed, Robert Hollifield, Foreperson; 20 also signed by eight other jurors. 21 Madame Sheriff, would you show that to Mr. Smith 22 and Ms. Zettler and then show it to Mr. Stopher. 23 SHERIFF CECIL: (Hands document to Ms. Zettler, 24 Mr. Smith and Mr. Foley; hands document to Mr. Stopher, Mr. 25 Freeman and Mr. Myers). 32 1 JUDGE POTTER: Mr. Foley, do you-all wish the 2 jury polled? 3 MR. FOLEY: No, sir. 4 JUDGE POTTER: Mr. Stopher, do you-all wish the 5 jury polled? 6 MR. STOPHER: No, Your Honor. 7 JUDGE POTTER: Can anybody think of anything 8 else I need to do before I discharge the jury? 9 MR. STOPHER: Nothing further, Your Honor. 10 JUDGE POTTER: Mr. Foley? 11 MR. FOLEY: No, sir. 12 JUDGE POTTER: Ladies and gentlemen, I'm going 13 to discharge you, but before I do that, I'd like to take a few 14 minutes of your time and say a few things, and if you don't 15 mind, I will do that in the jury room. Would you-all please 16 go with my sheriff. 17 (JURORS LEAVE THE COURTROOM) 18 JUDGE POTTER: Mr. Stopher, would you prepare 19 what you believe to be an appropriate judgment, serve it on 20 Mr. Smith or Mr. Foley, and if you don't hear anything in a 21 couple days, file it over in the courthouse? Are you-all 22 going to be around? Never mind. Thank you all. 23 (PROCEEDINGS TERMINATED AT 3:00 P.M.) 24 * * * 25 33 1 STATE OF KENTUCKY )( )( Sct. 2 COUNTY OF JEFFERSON )( 3 I, JULIA K. McBRIDE, Notary Public, State of 4 Kentucky at Large, hereby certify that the foregoing 5 Transcript of the Proceedings was taken at the time and place 6 stated in the caption; that the appearances were as set forth 7 in the caption; that prior to giving testimony the witness was 8 first duly sworn by me; that said testimony was taken down by 9 me in stenographic notes and thereafter reduced under my 10 supervision to the foregoing typewritten pages and that said 11 typewritten transcript is a true, accurate and complete record 12 of my stenographic notes so taken. 13 I further certify that I am not related by blood 14 or marriage to any of the parties hereto and that I have no 15 interest in the outcome of captioned case. 16 My commission as Notary Public expires 17 December 21, 1996. 18 Given under my hand this the__________day of 19 ______________________, 1994, at Louisville, Kentucky. 20 21 22 23 24 _____________________________ 25 NOTARY PUBLIC 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25