1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF HAWAII 3 4 SUSAN K. FORSYTH, ) Civil No. 95-00185ACK Individually and as ) 5 Personal Representative ) of the Estates of June M. ) 6 Forsyth and William D. ) Forsyth, and WILLIAM F. ) 7 FORSYTH, JR., ) ) 8 Plaintiffs, ) ) 9 vs. ) ) 10 ELI LILLY AND COMPANY, ) an Indiana corporation, ) 11 et al., ) ) 12 Defendants. ) __________________________) 13 14 TRANSCRIPT OF PROCEEDINGS 15 The above-entitled matter came on for pretrial 16 conference on Monday, March 1, 1999 at 9:50 a.m. at 17 Honolulu, Hawaii. 18 BEFORE: THE HONORABLE ALAN C. KAY 19 United States District Judge District of Hawaii 20 21 REPORTED BY: TINA M. STUHR, RPR, CSR #360 Notary Public, State of Hawaii 22 PACIFIC REPORTING SERVICES UNLIMITED, INC. 23 733 Bishop Street Suite 2090, Makai Tower 24 Honolulu, Hawaii 96813 (808) 524-PRSU 25 2 1 APPEARANCES: 2 For Plaintiffs: ANTHONY ANDERSON VICKERY, ESQ. Archer, Waldner & Vickery 3 2929 Allen Parkway Suite 2410 4 Houston, Texas 77019 5 KAREN BARTH, ESQ. Baum, Hedlund, Aristei, Guilford 6 & Downey 12100 Wilshire Boulevard 7 Suite 950 Los Angeles, California 90025 8 For Defendant: ANDREW SEE, ESQ. 9 MICHELLE R. MANGRUM, ESQ. Shook, Hardy & Bacon L.L.P. 10 One Kansas City Place 1200 Main Street 11 Kansas City, Missouri 64105 12 PATRICIA ABURANO, ESQ. Burke Sakai McPheeters Bordner 13 Iwanaga & Estes 737 Bishop Street 14 Suite 3100 - Mauka Tower Honolulu, Hawaii 96813 15 16 17 18 19 20 21 22 23 24 25 3 1 THE CLERK: Civil No. 95-00185 ACK, Susan K. 2 Forsyth, et al. vs. Eli Lilly and Company, et al. 3 This case is called for further pretrial conference. 4 May we have appearances, please. 5 MR. VICKERY: Yes. Good morning, Your Honor. 6 Andy Vickery and Karen Barth, again, for the 7 plaintiffs. 8 THE COURT: Good morning. 9 MR. SEE: Andrew See, Michelle Mangrum, and Pat 10 Aburano on behalf of Eli Lilly and Company. 11 THE COURT: Good morning. Well, the Court has 12 just received your objections to your exhibits. The 13 Court has not had an opportunity to go over. We'll 14 have to take that up tomorrow morning. 15 Likewise, the motion concerning this particular 16 employee of Lilly whom Lilly does not want to bring, 17 who evidently wrote a letter to Dr. Riggs, is Lilly 18 objecting to the admission of that letter from their 19 own employee to Dr. Riggs? 20 MR. SEE: That letter? We have no objection to 21 that letter at all, Your Honor. 22 THE COURT: Okay. Again, that I'll have to 23 take up later today also. 24 Now, on the -- you've also submitted a jury 25 questionnaire with some fifty questions or so that we 4 1 had briefly discussed during our telephone 2 conversation on February 12, and I thought that you 3 had added somewhere here about the length of the 4 trial. Where was that? 5 MR. SEE: We did add that question, Your Honor, 6 and it is -- if I can find it for you. It's Question 7 40. And, you know, Your Honor, now that I look at it, 8 I took this language out of the -- I think it was the 9 Court's standard instructions or the Ninth Circuit 10 standard instructions. Now that I look at it, it 11 doesn't have the length of trial in it, so I guess I 12 need to modify that one. I thought I put three or 13 four weeks in there, but as I look at it, apparently I 14 did not. 15 THE COURT: Yes, I think you better add a 16 separate question on the length of the trial. Maybe 17 placing it just before that. 18 MR. SEE: Yes, sir, we'll do that. And I 19 apologize because I thought it was in there. 20 THE COURT: And, again, as I recall, we agreed 21 that we're going to have twelve jurors, which, in 22 effect, will be six alternates, but those who are 23 remaining at the end of the trial will participate in 24 deliberations. You'll each have three peremptory 25 challenges, so we'll need a final group of eighteen 5 1 for you to select from, and I believe we agreed that 2 we would bring in a panel of 70; is that correct? 3 MR. VICKERY: Yes, it is, Your Honor. That's 4 what we discussed. 5 THE COURT: Because there will be some fallout. 6 And I trust we're not going to get into mini-trials as 7 a result of these questionnaires. 8 MR. VICKERY: That's not the goal. The goal 9 was actually to do the opposite, Your Honor, to 10 expedite the jury selection process, but we'll see how 11 it turns out. That's certainly the goal. 12 THE COURT: I mean, you know, you have some of 13 these questions like -- looking at the last question, 14 "Do you believe the pharmaceutical industry has 15 conspired against the public?" And if they answer 16 yes, what's the result? 17 MR. VICKERY: I think the result is for someone 18 that answers yes, that probably there is a private 19 bench conference with that person that says, are your 20 feelings so strong that it would influence your 21 verdict or can you base a verdict on the evidence? 22 And the Court would have to assure itself from looking 23 at the person's demeanor as they answer, whether, 24 indeed, they can lay aside any biases and base a 25 verdict on the evidence. 6 1 If they say yes, and the Court is satisfied 2 with their answer, then that person's on the panel, 3 and Mr. See can or cannot strike him as he chooses. 4 MR. SEE: I think that's essentially right, 5 Judge. Through lots of these questions, we're simply 6 trying to get at whether there is any pre-existing 7 bias one way or the other, and that's one of the 8 questions trying to get at that question. 9 I do think Mr. Vickery is correct. If someone 10 answered yes to that, there would need to be a 11 question briefly at side bar to see whether, in fact, 12 that existing bias would make them suitable or not a 13 suitable juror. 14 THE COURT: Well, do you two contemplate 15 getting together after the answers are submitted to 16 see whether certain jurors or potential jurors should 17 be eliminated? 18 MR. SEE: We could certainly do that easily by 19 telephone. 20 MR. VICKERY: We can do that by telephone, but 21 you know, Your Honor, as you bring up the possibility 22 on that one, I have a suggestion, and that is, that we 23 add an additional block so that a juror could say, I 24 don't know. I don't have a strong feeling one way or 25 the other about that, so it would be yes, no, or no 7 1 opinion. 2 THE COURT: That probably would be a good idea 3 with respect to most of these. 4 MR. VICKERY: That's what I'm thinking. 5 THE COURT: For instance, the prior question, 6 "Do you believe a prescription drug for treating a 7 serious illness should be found 100 percent safe 8 before being used with patients with the illness?" 9 Otherwise we're going to be spending all day up here 10 at side bar. 11 MR. SEE: We can add a no opinion or don't 12 know, we certainly can. 13 THE COURT: Or no position or something like 14 that. 15 MR. VICKERY: We'll just add it on all of them, 16 if that's fine with Mr. See. 17 MR. SEE: That's fine. 18 THE COURT: Most of them, except -- I mean, 19 there's some like, do you -- 56, "Do you know any of 20 the attorneys?" They either do or they don't. 21 MR. VICKERY: Right. 22 THE COURT: I just wanted to confirm that you 23 both want me to talk with Mr. and Mrs. Forsyth 24 regarding settlement without counsel present and off 25 the record? 8 1 MR. VICKERY: That was discussed off the record 2 at the side bar on Friday, Your Honor. We think that 3 is probably a good idea. I'll be glad to discuss with 4 you the situation and the conversations I've had since 5 the conversation with the Court on Friday, if you'd 6 like. It may be that you're talking to the wrong 7 parties. It may be the person you need to talk to is 8 not the Forsyths at all, but Jim Burns from Eli Lilly. 9 Having said that, for all the reasons we 10 discussed at side bar off the record, Mr. Forsyth and 11 Ms. Forsyth, his sister, will be glad to come by 12 sometime between two and three tomorrow, if that's a 13 convenient time with the Court, and visit with the 14 Court privately in chambers off the record about the 15 subject of settlement. 16 I will say this, I assume that that 17 conversation won't get into the numbers. If you 18 intend to do that with them, I would like to know so 19 in advance, so I could alert them to that. 20 THE COURT: I hadn't intended to do that, but 21 if you're telling me that this is not going to be 22 fruitful or have any potential for being fruitful, I 23 have a lot of other things to do besides talk to them. 24 MR. VICKERY: Well, I have reservations at this 25 point, Your Honor, based on my conversations, not with 9 1 my clients, but with Mr. Burns after the hearing on 2 Friday. I had a conversation with Mr. Burns that 3 leads me to believe that the Court trying to talk to 4 the Forsyths about their willingness to settle is 5 perhaps not the problem. Mr. Burns, I think, is not 6 interested in settling this case anywhere in the range 7 that Mr. Murgatroyd, who is sitting over here, and I 8 would recommend to the Forsyths and she would agree, 9 and when I discussed that with him, at the Court's 10 direction on Friday after the conference, he made that 11 real clear to me. 12 I've made two proposals in the past week, and I 13 can tell the Court without getting into specific 14 numbers or anything, Eli Lilly has not increased its 15 settlement offer one dollar on this case since last 16 May. 17 So having said all of that, my clients are 18 willing to spend the time with the Court, if you want, 19 but I honestly believe at this juncture, at least, 20 that perhaps you're talking to the wrong party. 21 THE COURT: Well, it doesn't seem like it's 22 going to be fruitful for me to talk to the Lillys 23 then -- I mean, the Forsyths. 24 MR. SEE: Your Honor, if I could just add, it 25 doesn't sound like it. 10 1 THE COURT: Anything else we should take up at 2 this time? 3 MR. VICKERY: Nothing. Oh, there is one other 4 thing, I don't think that we can resolve, Your Honor, 5 but I wanted to alert the Court to, we had filed a 6 request for judicial notice and I've discussed it with 7 Mr. See this morning. I don't think that we need to 8 take it up this morning. He probably wants a little 9 more time to think about it, but that's something 10 that's a pretrial matter, that if we can handle in the 11 pretrial and get the Court's ruling one way or the 12 other then -- 13 THE COURT: Judicial notice on what? FDA? 14 MR. VICKERY: No, sir, on two things. Number 15 one, that the Swedish warning says that the risk of 16 suicide increases initially, and number two, that in 17 fact, it's true, that it does increase initially and 18 the -- 19 THE COURT: I'm certainly not going to be 20 finding by judicial notice that it does, in fact, 21 increase. 22 MR. VICKERY: I wouldn't ask you to but for the 23 fact that I think there's a clear judicial admission 24 to that effect on the record, Your Honor. 25 THE COURT: Well, I read through that and I 11 1 think if you read through the entire context of 2 what -- I believe it was Mr. See was saying, that that 3 is not the case. 4 MR. VICKERY: Okay. Then that issue is 5 resolved. 6 MR. SEE: Your Honor, the only thing that I 7 have to take up is the logistics about where we should 8 bring the copies of the questionnaires and when the 9 Court thinks we might be able to pick them up, and we 10 could handle that with Dottie if that would be 11 appropriate? 12 THE COURT: Yes, handle that with her. I would 13 estimate that it's probably going to take two, three 14 hours for the panel to fill in these questionnaires. 15 Maybe some will be quicker, I don't know. And I take 16 it, if there is some problems in resolving the 17 answers, then we ought to be meeting tomorrow 18 afternoon on that. But we should try to meet tomorrow 19 morning while they're answering the questionnaires and 20 resolve some of these multitude of objections to 21 exhibits that you have raised, but, yeah, coordinate 22 that with my clerk -- 23 MR. SEE: Very good. 24 THE COURT: -- courtroom deputy. We'll see you 25 tomorrow morning. 12 1 THE CLERK: All rise. 2 MR. VICKERY: Judge, you didn't tell us what 3 time tomorrow morning. 4 THE COURT: Pardon me? 5 MR. VICKERY: You didn't tell us what time 6 tomorrow morning. 7 THE COURT: Nine o'clock. 8 MR. VICKERY: Very good. 9 (The proceedings were adjourned at 10:05 a.m. 10 to be reconvened on Tuesday, March 2, 1999 at 11 9:00 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 1 C E R T I F I C A T E 2 --ooOOoo-- 3 I, TINA M. STUHR, Official Court Reporter, 4 United States District Court, District of Hawaii, 5 Honolulu, Hawaii, do hereby certify that the foregoing 6 is a correct partial transcript of proceedings in 7 Civil No. 95-00185ACK, Susan K. Forsyth, et al. vs. 8 Eli Lilly and Company, et al., at Honolulu, Hawaii, on 9 March 1, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: February 8, 2000. 12 13 ______________________________________ TINA M. STUHR, RPR, CSR #360 14 15 16 17 18 19 20 21 22 23 24 25