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 hearing on 16 Tuesday, March 2, 1999 at 3:30 p.m. at Honolulu, 17 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 For Defendant: ANDREW SEE, ESQ. Shook, Hardy & Bacon L.L.P. 6 One Kansas City Place 1200 Main Street 7 Kansas City, Missouri 64105 8 EDMUND BURKE, ESQ. PATRICIA ABURANO, ESQ. 9 Burke Sakai McPheeters Bordner Iwanaga & Estes 10 737 Bishop Street Suite 3100 - Mauka Tower 11 Honolulu, Hawaii 96813 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 3 1 THE CLERK: Civil No. 95-00185 ACK, Susan K. 2 Forsyth, et al. versus Eli Lilly and Company, et al. 3 May we have appearances, please? 4 MR. VICKERY: Yes. Good afternoon, Your Honor. 5 Andy Vickery for the plaintiffs, Bill and Susan 6 Forsyth. 7 THE COURT: Good afternoon. 8 MR. SEE: Andrew See along with Edmund Burke 9 and Patricia Aburano for Eli Lilly and Company. 10 THE COURT: Well, I trust we're here for a 11 reason. 12 MR. VICKERY: Yes, sir, I think we are. 13 THE COURT: You didn't have much luck with your 14 Xerox machine or what? 15 MR. VICKERY: Well, evidently the service that 16 they arranged to handle it had some problems in 17 copying this volume of paper. 18 THE COURT: It's been about, what, five hours 19 now since you got them? 20 MR. VICKERY: They were completed about five 21 hours ago. We've only had them now for about two 22 hours, Your Honor. I think we made some progress. 23 Where I can tell you we are is that both sides have 24 reviewed them and agreed, I think, on 14 different 25 jurors who, based on their questionnaires, can be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 4 1 excused now, and there's another list, less than 20, 2 of people that we were inclined to let go based on 3 questionnaire answers and we discussed them with 4 counsel for Lilly and they said no, but altogether, 5 there are 14 that can definitely go and another 15 to 6 20 that could also go based on whether you want to 7 take those up now or wait until tomorrow. 8 THE COURT: Well, I think we better see what 9 progress we can make. This kind of reminds me of the 10 Xerox commercial, where they compared the monks to the 11 Xerox machine. I think you got the monks today. 12 MR. VICKERY: I'm afraid we did, too, Your 13 Honor. I had the same problem on my copy I think the 14 Court did. If I may, Judge, I have the list of the 14 15 that both sides -- 16 THE COURT: You have the reasons for the 14? 17 MR. VICKERY: I don't have reasons because both 18 sides agreed. Typically, they're economic hardship of 19 some kind. 20 THE COURT: Well, I had a list of some that 21 requested to be excused also. Why don't you hand that 22 to them, Dottie, and see if they are included in the 23 14. I think there are only about six on that list. 24 THE CLERK: The computer printout is 25 alphabetical. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 5 1 MR. VICKERY: Are these juror numbers from the 2 computer printout or from the jury questionnaire 3 sheet? 4 THE CLERK: I think the computer. I don't 5 think they are from the questionnaire. 6 MR. VICKERY: Okay. It's not going to be easy 7 to correlate them then because apparently each juror 8 has two different juror numbers, Your Honor, one on 9 the computer -- 10 THE COURT: Well, just go by alphabetically. 11 Aren't these in alphabetical order? 12 MR. VICKERY: They're in numerical order. 13 THE COURT: What? 14 MS. ABURANO: Bennett, Burdick, Cabanero, 15 Davis -- 16 THE COURT: What are you reading off now? 17 MS. ABURANO: The 14 that have been agreed. 18 THE COURT: Well, why don't you first see if 19 any of the 14 are in addition to the 14? 20 MR. VICKERY: Well, we can do that, Judge. 21 Only one of the six of the Court's list were on the 22 parties' joint list, Your Honor. 23 THE COURT: Pardon me? 24 MR. VICKERY: Only one of the people on the 25 Court's list of six were on our joint list of 14. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 6 1 THE COURT: They all seem to have rather 2 compelling reasons. 3 MR. VICKERY: Well, I can tell you whether any 4 of them are on my list, but that will take me a 5 minute. 6 THE COURT: Well, why don't we approach it this 7 way: Do you have any objections to excusing any of 8 those six? 9 MR. VICKERY: I don't. The plaintiff does not 10 have any objections in excusing the six that the Court 11 requested. 12 MR. SEE: And the defendant would have no 13 objection likewise, Your Honor. 14 THE COURT: All right. So why don't you read 15 off their names, the six. 16 MR. VICKERY: Diane Inouye, Rina Kawelo -- 17 THE COURT: Wait a minute. Rita? 18 MR. VICKERY: It's Rina, Your Honor. Did I 19 butcher that name? Rina, R-I-N-A, Kawelo. 20 THE COURT: Maybe you better let Mr. Burke read 21 them off. Hopefully he can pronounce the local names. 22 MR. BURKE: You're putting me on the spot. 23 THE COURT: Caravello? 24 MR. BURKE: No, Kawelo, Your Honor. Kawelo. 25 THE COURT: How do you spell that? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 7 1 MR. BURKE: K-A-W-E-L-O. 2 THE COURT: K-A what? 3 MR. BURKE: W-E-L-O. 4 THE COURT: I can't find that. It's K-A-W -- 5 THE CLERK: E-L-O. 6 THE COURT: Oh, Kawelo. 7 THE CLERK: Yes. 8 THE COURT: Maybe we should get someone else up 9 there to read them. 10 MR. BURKE: No, it's Kawelo, Your Honor. 11 Steve Oshiro, Aurelio Supapo. 12 THE COURT: What was that? 13 MR. BURKE: Aurelio Supapo. 14 THE CLERK: Number 66, Your Honor. 15 MR. BURKE: S-U-P-A-P-O. 16 THE COURT: Okay. 17 MR. BURKE: Heather Thomas, and then Francis 18 Yano, the attorney. 19 THE COURT: Okay. And then the 14. 20 MR. VICKERY: I'm not going to try those names. 21 I'm going to let Ms. Aburano do it. 22 MR. BURKE: Yeah, we have some duplication 23 here. 24 MS. ABURANO: Bennett, Burdick -- 25 THE COURT: Wait a minute. Beatrice Bennett? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 8 1 MS. ABURANO: Beatrice Bennett. 2 THE COURT: Gail Burdick? 3 MS. ABURANO: Gail Burdick. Roberto Cabanero. 4 Davis. I think the first name is Nancy. Then we have 5 Gilroy, and then this is the duplicate, the Kawelo. 6 And then Paula Keliinui and then Eugene Leong, James 7 Nagai, Cheuk Poon Ng, N-G last name, Frank Powell, and 8 then Aurelio Supapo again. That's a duplicate. 9 Richard Testa. 10 THE COURT: What's that again? 11 MS. ABURANO: Richard Testa, T-E-S-T-A. 12 THE CLERK: 71, Your Honor. 13 THE COURT: Okay. 14 MS. ABURANO: And the last one is Thelma 15 Yamaguchi. 16 THE COURT: So that's how many? About 19? 17 MS. ABURANO: That's 14 on our list. 18 MR. BURKE: It would be a total of 20, I think. 19 THE COURT: I thought there were one duplicate. 20 MR. BURKE: There were two duplicates. 21 THE COURT: So that's about 18 then. 22 MR. BURKE: That's right. Fourteen and four, 23 that's eighteen. 24 THE COURT: So we have 82, and we're now down 25 to 64. Now, you have some more that are in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 9 1 contention? 2 MR. VICKERY: That's correct, Your Honor. The 3 first is Susan Carberry. She's Juror No. 7 on the 4 printout and she personally takes Prozac and on number 5 40, Question No. 40 she indicated a problem with work. 6 It didn't seem insurmountable. She says, "I think 7 they can survive without me, but I'd have some 8 problems." But I thought coupled with the fact that 9 she herself is on Prozac, we would ask the Court to 10 excuse her. 11 THE COURT: Because she's on Prozac? 12 MR. VICKERY: She is on Prozac, Question No. 49 13 on her questionnaire. 14 MR. SEE: Your Honor, from Lilly's perspective, 15 I just don't think it's an automatic exclusion if the 16 person happens to be taking the drug. We know about 17 it, and that would be a subject to ask her about at 18 side bar if that is something that would overly 19 influence her opinion, but I don't think you can 20 necessarily automatically exclude the potential juror 21 just because of that fact. We don't know whether that 22 would have an impact on her opinion or not. 23 THE COURT: Apparently, she's been taking 24 Prozac for some period of time. 25 MR. VICKERY: Question No. 49 says from two PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 10 1 years ago until now. She's been on it for the last 2 two years, Your Honor, on the top of Page 12, Line 2. 3 THE COURT: Well, I agree with Mr. See on that. 4 We'll question her at side bar. 5 (A discussion was had off the record.) 6 THE COURT: How many are in contention? 7 MR. VICKERY: It's a little less than 20. 8 THE COURT: What does that mean? Seventeen? 9 Eleven? 10 MR. VICKERY: I can tell you exactly. 11 Seventeen more. 12 THE COURT: Pardon me? 13 MR. VICKERY: Seventeen more. So with the one 14 we just handled, there were 18 altogether. 17 more. 15 THE COURT: I mean, if those are excused, then 16 we're down to 47 jurors. 17 MR. VICKERY: Right. 18 THE COURT: Do you have any problem with that? 19 Is that going to be enough? 20 MR. VICKERY: I think that would be enough. 21 MR. SEE: I would really be concerned about it. 22 THE COURT: Except you already have the 23 questionnaires. I mean, if we -- if we excused all 24 17, then presumably there wouldn't be any others to be 25 excused or very few. Let's go through them. Why PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 11 1 don't you go ahead and call the 18 and let the 18 off. 2 THE CLERK: I'm sorry, I didn't understand what 3 you said. 4 THE COURT: Tell Cynthia to excuse the 18. 5 THE CLERK: Okay. Thank you. 6 THE COURT: So the first -- okay. We've gone 7 through No. 7, Carberry. What's the next one? 8 MR. VICKERY: I'm going to skip the next one, 9 Your Honor, because in looking at it again, I don't 10 think it's that strong. 11 MR. SEE: Which was it again, please? 12 MR. VICKERY: It's No. 11, Ms. Cheu. The next 13 one would be Deluna. 14 THE COURT: Deluna is No. 12. 15 MR. VICKERY: Deluna is Questionnaire No. 16, 16 but it's No. 12 on the Court's list. And the basis is 17 Questions 40 and 41. 18 THE COURT: Well, wait. Let me get it here. 19 There's no answer to 41, is there? 20 MR. VICKERY: I'm sorry, it is 39 and 40, Your 21 Honor. It is not particularly strong. I tell the 22 Court that we went through them and made questions as 23 to people who have voiced some problems, and then we 24 looked at the numbers, and based on the numbers we 25 would be left, I think, from the plaintiffs' PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 12 1 perspective, we tended to err on the side of the 2 generosity, if you would, for the juror's concern over 3 their work. So some of these, you know, we don't feel 4 as strongly about perhaps as others. 5 THE COURT: Well, this one she says she needs a 6 regular paycheck. She doesn't get paid while she's 7 serving on the jury. 8 MR. SEE: And the reason we didn't agree to 9 this one is because you really can't tell. Because it 10 says she's a supervisor, and the ones where they said 11 they were minimum wage and worked by the hour, if they 12 didn't show up, they didn't get paid. Those one we 13 all agreed to, but with this one, we just didn't think 14 you could tell one way or the other. 15 THE COURT: Well, she seems to say it's going 16 to be a financial hardship. 17 MR. SEE: There is a suggestion there, but 18 again -- 19 THE COURT: A very definite suggestion. 20 MR. SEE: There is a definite suggestion. 21 THE COURT: Well, I don't think you want 22 someone like that sitting for four weeks, do you, in 23 trial? 24 MR. SEE: If, in fact, the lady was not getting 25 compensated, I agree with that. We just didn't -- we PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 13 1 just couldn't tell from the questionnaire, the way she 2 had filled it out. 3 THE COURT: Well, how else would you interpret 4 this answer? 5 MR. SEE: Because she indicated she was a 6 supervisor is why I -- I guess the answer to you, Your 7 Honor, is I really didn't know. I couldn't tell. It 8 does have a suggestion of financial hardship. There's 9 no question about that, but to me it was not clear 10 that she was a person who, in fact, her paycheck would 11 stop. 12 THE COURT: Well, she says she's not going to 13 get a regular paycheck. 14 MR. SEE: If that's the appropriate 15 interpretation, then I will withdraw my opposition to 16 that one. 17 THE COURT: Okay. We'll excuse number -- 18 Deluna. 19 MR. VICKERY: That's No. 12 on the printout 20 list, Your Honor. 21 The next one is Pamela Felix, and she is No. 16 22 on the Court's list. There are two reasons for that 23 one. One is that she has a trip. In Question No. 4, 24 she has -- she has a trip planned to depart on 25 March 28, 1993 -- I mean, 1998. We hope we'll be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 14 1 through by then, but who's to say for certain, and I 2 would hate to come to the situation where we had a 3 juror that had to leave. The second thing, her 4 daughter is on Prozac, Judge, in response to Question 5 No. 49, who got it after her first suicide attempt. 6 She's got a daughter that attempted suicide and is 7 currently on Prozac, and the combination of the two 8 factors suggested to me that she shouldn't be sitting 9 in this particular case. 10 MR. SEE: Again, Your Honor, the mere fact of a 11 relative having taken Prozac ought not disqualify the 12 juror. That ought to be an inquiry at side bar, and 13 the date on this planned trip seemed to me, March 28, 14 far enough out that the greatest likelihood is that's 15 not going to be a problem. That's my view anyway. 16 THE COURT: Doesn't she have the wrong date 17 anyway? Is the 28th a Sunday? 18 THE CLERK: March 28 is a Sunday, you're right. 19 THE COURT: I think with that, we better excuse 20 her. Any objection to that? 21 MR. SEE: Well, if it's because of the time 22 frame, I think we all said we would be finished during 23 this month. 24 THE COURT: We all said we were going to start 25 tomorrow, too, and right now I'm still trying to weed PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 15 1 my way through several hundred objections to the 2 exhibits, and I think we're going to have to delay the 3 start of the trial by a day because of that. I'm very 4 disturbed that I had so many objections pressed on me 5 on the eve of trial. With that many objections, you 6 really should have filed them earlier. And I'm up to, 7 I think, Exhibit No. 104 at this point, and I've spent 8 the last day viewing them. 9 There are a lot of critical issues, any one of 10 which could result in reversal of whatever comes out 11 of this trial, so I think it's important. Some of the 12 objections are very meaningful, others border on the 13 frivolous, but I have to consider each one. 14 But I think that with Felix, if she's leaving 15 on a four-day trip, because it may take them a while 16 to deliberate after we finish the trial, too. 17 MR. VICKERY: I hadn't thought of that, but 18 you're absolutely right. 19 THE COURT: And with hundreds of documents that 20 they're going to be getting, they're going to have a 21 lot to consider. Any objection to excusing No. 16? 22 MR. SEE: We would request the Court to keep 23 No. 16, but I understand that if the Court's, you 24 know, view by the schedule makes it a risky juror. 25 THE COURT: I think we better excuse her. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 16 1 MR. VICKERY: The next one is -- 2 THE COURT: I'm also concerned about the 3 suicide problem. Go ahead. 4 MR. VICKERY: Edward Hillison, No. 26 on your 5 printout, Your Honor, No. 32 on the questionnaire. 6 This man is a Lilly stockholder, Question No. 36 7 indicates, owns shares currently. 8 MR. SEE: I missed that. I agree, the man 9 ought to be excused. I totally missed it. 10 THE COURT: Okay. Thirty-two is excused. His 11 name was what? 12 MR. VICKERY: Hillison. 13 THE COURT: That's not 32 then. 14 MR. VICKERY: It's 26 on the printout. It's 26 15 on the printout, Your Honor. 16 Thirty-four is the next. It is Brian Ikawa. 17 This man is a controller of a company. He lives off 18 of this Island and he indicated on Question No. 39, he 19 had to close out year-end books and prepare tax 20 returns. I thought he should be excused for that 21 reason. 22 THE COURT: Sounds like we better excuse him. 23 Any objection? 24 MR. SEE: No objection, Your Honor. 25 THE COURT: Okay. Thirty-four is excused. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 17 1 MR. VICKERY: The next one is 35 on the 2 questionnaire, Joyce Imai. She is No. 29 on the 3 printout. 4 MR. SEE: One moment, please. She's what on 5 the questionnaire? 6 MR. VICKERY: Thirty-five on the questionnaire. 7 She indicates in response to Questions 39 and 40 that 8 she is the caretaker for her 89-year-old mother and 9 that a three- to four-week trial would be exceedingly 10 difficult for her. 11 MR. SEE: Yeah, Your Honor, this is one that it 12 seemed to us appropriate for a side bar inquiry. In 13 what the lady says is there is no constant daytime 14 care, but the mother needs to be taken to doctors and 15 so on. We're not going to meet, as I understand it, 16 on Mondays so there would be one day a week available. 17 It just didn't seem as if the woman was saying she 18 absolutely has -- you know, her mother requires 19 constant care during the daytime. 20 THE COURT: Well, we can bring her in, but I 21 think you're taking a risk with her. If her mother 22 needs to go to the doctor in the middle of the week, 23 what happens? 24 MR. SEE: She would probably ask the Court to 25 let her go take her. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 18 1 THE COURT: Well, let's pass her over and we'll 2 talk to her on side bar. 3 MR. VICKERY: The next one I had was actually 4 on the Court's list and has already been excused, Your 5 Honor, and that is Questionnaire No. 36, Diane Inouye, 6 No. 30 on the printout. 7 THE COURT: Okay. 8 MR. VICKERY: The next one I had is No. 44 on 9 the questionnaire, Charles King. He is No. 38 on the 10 printout. He has a business trip planned -- 11 THE COURT: I'm sorry, what number on the -- 12 MR. VICKERY: The printout is 38. And on 13 Question No. 40 he indicated that he had a business 14 trip to the Mainland planned from March 23rd to the 15 27th. 16 THE COURT: Mr. See. 17 MR. SEE: Again, if the Court's view of the 18 schedule is that ought to be an excused juror, then I 19 would agree with it. 20 THE COURT: And we ordinarily would excuse 21 someone like that. We'll excuse 38. 22 MR. VICKERY: The next one is Juror No. 47, and 23 there are two Juror 47 questionnaires. This one is 24 No. 41 on the list. Estela De Lima Luria and the 25 basis is that her mother is on Prozac, Judge. It's PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 19 1 Question No. 49. 2 MR. SEE: Again, Your Honor, she says she 3 thinks it was Prozac. And again, the mere fact of 4 having a family member having taken the drug, I think, 5 is not an automatic exclusion, but it's something to 6 be inquired about. But it doesn't sound like she's 7 even certain what drug it was. She simply says I 8 think it was Prozac. 9 THE COURT: Okay. I agree with Mr. See on 10 that. We'll have to talk to her at side bar. 11 MR. VICKERY: The next one is Questionnaire 54, 12 Carrie Miyasato and she is No. 46 on the printout. 13 She also has a trip to the Mainland planned on 14 March 10th through the 13th. 15 MR. SEE: If I could have just one moment? Is 16 this the right person? 17 MR. VICKERY: Yes. 18 MR. SEE: Again, Your Honor, it falls in 19 exactly the same category as the ones before about the 20 Mainland trips. If that is an automatic exclusion, 21 this person would fall in the same category. 22 THE COURT: All right. We'll excuse 46. 23 MR. VICKERY: The next one is No. 63 on the 24 questionnaire, Larry Oshiro, and he would be No. 52 on 25 the printout. This man is a supervisor for 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 20 1 different offices, and in Question No. 40 he indicated 2 that a three- or four-week trial would be a real 3 problem for him or at least that's the way I read it. 4 THE COURT: We already excused 53. 5 MR. VICKERY: Sixty-three? 6 THE COURT: Well, what number is he? We've 7 already excused Steve Oshiro. 8 MR. VICKERY: This is Larry. 9 THE COURT: Oh, Larry Oshiro. 10 MR. SEE: Your Honor, it appears that if one 11 looks at Question No. 2, Mr. Oshiro works for the 12 Department of Transportation for the State of Hawaii, 13 so it's not a matter that this is someone who is in a 14 sole proprietorship and his business would be damaged. 15 He works for the State, so I would request that the 16 Court keep this juror. 17 THE COURT: I agree. 18 MR. VICKERY: The next that was on my list was 19 Steve Oshiro. As the Court mentioned, he's already 20 been excused. The next one is No. 75. This one is 21 sort of iffy, Your Honor. I guess we should hold it 22 until tomorrow. I won't make that challenge now. 23 The next one is No. 80, Harry Slade. That's 24 Questionnaire 80, No. 64 on the Court's printout. 25 This young man is 22 years old, Your Honor, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 21 1 apparently has custody of a small daughter and no 2 babysitter. He indicated in response to Questions 39 3 and 40 that it would be a real problem for him to 4 serve as a juror for three or four weeks because of 5 that. 6 THE COURT: This is your No. 80? 7 MR. VICKERY: There are two number 80s. There 8 were two 47s and two 80s. 9 THE COURT: Harry Slade? 10 MR. VICKERY: Harry Slade, right. 11 THE COURT: Number 64. He's a varsity 12 basketball coach. 13 MR. VICKERY: No, he's a loss prevention 14 officer in Question No. 3. 15 MR. SEE: Apparently he has been a basketball 16 coach. 17 What I didn't understand about this 18 questionnaire, Your Honor, was Mr. Slade indicated 19 that he was -- he is employed and doing something at 20 work and then he has to watch his daughter who has no 21 babysitter. If his work hours are the same as the 22 court hours, then he won't have too much of a problem 23 in that regard anyway. 24 THE COURT: He also says he's working on a big 25 case. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 22 1 MR. VICKERY: I was trying to figure out what 2 kind of case a loss prevention officer at the Hawaii 3 Prince Hotel Waikiki would work on. I guess, he's 4 trying to keep guests from losing their pocketbooks. 5 THE COURT: Maybe some embezzlement. 6 MR. VICKERY: Perhaps. It seems to me that a 7 22-year-old single parent has enough on his plate 8 without us asking him to serve three or four weeks on 9 a jury. 10 THE COURT: Well, as Mr. See points out, if 11 he's working a regular eight-hour day, it's not going 12 to be any different. 13 MR. VICKERY: Okay. 14 THE COURT: He may come up with a better excuse 15 tomorrow. 16 MR. VICKERY: The next I have is No. 93, James 17 Truesdell, he's number 76 on the Court's printout, and 18 he has both health and employment problems, Questions 19 38 through 40. 20 THE COURT: Let's see. What number was he of 21 yours? 22 MR. VICKERY: The questionnaire is 93, but he's 23 No. 76 on the printout. 24 MR. SEE: He indicates that even though he has 25 had a disk problem, he says on Question 38, that he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 23 1 can serve. With respect to his employment in Question 2 40, he says, "It won't be impossible for them to get 3 along without me." And then in 41, he ends up by 4 saying he's willing to serve, so it seems to me that 5 this is one we probably ought to keep. 6 THE COURT: Let's see. What is he saying here 7 in 41? "I would like to attend my" -- 8 MR. VICKERY: "Therapy treatment." 9 THE COURT: -- "therapy treatment to 10 present" -- 11 MR. VICKERY: "To treat the problems." 12 THE COURT: Oh, "to treat the problems" -- 13 MR. SEE: "I'm having with my neck." 14 MR. VICKERY: "I'm having with my neck." He 15 has a cervical disk problem according to Question No. 16 38. 17 THE COURT: "But I'm willing to serve." 18 MR. SEE: I mean, clearly if the man has a 19 physical problem that he would have a problem serving, 20 I wouldn't want him to serve either, but the fact -- 21 he keeps saying "I'm willing to serve. I'm willing to 22 do it." Maybe that's one that would be appropriate 23 for inquiry at the side bar. 24 THE COURT: All right. 25 MR. VICKERY: The next I have is No. 94, Julie PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 24 1 Ugalde, she is No. 77 on the Court's printout. She 2 just knows local counsel for both sides here and it 3 seems to me that we might head this one off at the 4 pass. 5 MR. SEE: Again, I think knowing who the 6 lawyers are in a community like this one is not an 7 automatic exclusion, but is something to be inquired 8 about. 9 THE COURT: What question is this? 10 MR. VICKERY: Fifty-seven. 11 THE COURT: Fifty-seven. 12 MR. VICKERY: This fellow is a risk manager, 13 Judge. I guess that's how he knows Mr. Burke and 14 Mr. Chang. 15 THE COURT: Apparently, he knows Mr. Chang a 16 lot better than Mr. Burke. 17 MR. VICKERY: That could work to our advantage. 18 MR. SEE: It looks like that, doesn't it? 19 THE COURT: I'm not sure which one you would 20 hold it against. 21 MR. VICKERY: I'm not either. 22 THE COURT: But I think we ought to question 23 him at side bar. 24 MR. VICKERY: Okay. And the final one is 102, 25 Gary Zane, who is Juror No. 82 on the printout. This PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 25 1 is another Lilly stockholder. Question number 36 -- 2 oh, I'm sorry. He's not, his parents are. 3 MR. SEE: He says his parents own stock, which 4 I don't think ought to be an automatic exclusion. And 5 I would also say, Your Honor -- 6 THE COURT: What question is that? 7 MR. SEE: It's No. 36. It also inquires 8 whether the potential juror owns stock in Lilly or in 9 any other pharmaceutical company, and he simply says, 10 "My parents own stocks." So we don't really know from 11 this, the way he's filled it out, if they, in fact, 12 own Lilly stock. 13 THE COURT: Maybe a competitor. 14 MR. SEE: It's been known to happen. 15 THE COURT: Well, I think we ought to bring him 16 in, too. 17 MR. VICKERY: Okay. Those are the only matters 18 that we have today, Your Honor. 19 THE COURT: So according to my count, we're 20 down to 58. Is that right? 21 MR. VICKERY: 24 from 82 is 58. Yes, that's 22 right, Your Honor. 23 THE COURT: So my inclination is to go ahead 24 and select a jury tomorrow, but start the trial on 25 Friday. I'm going to have to finish going through PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 26 1 these several hundred objections, and then we'll have 2 to take some time in court to go through them, too. 3 MR. VICKERY: Sure. 4 THE COURT: But hopefully we'll get that done 5 so that we can start on Friday. 6 MR. SEE: Will we be opening then on Friday, 7 Your Honor? 8 THE COURT: Right. 9 MR. SEE: If the Court please, I have a very 10 short matter that I'd like to present to the Court. 11 THE COURT: All right. 12 MR. SEE: Apparently, while the -- while our 13 prospective jurors were filling out the questionnaire, 14 this press release was issued by the Baum Hedlund law 15 firm, which is the firm that is working with 16 Mr. Vickery on this case, so we have a situation where 17 this press release has been issued by that firm while 18 our prospective jurors are filling out the 19 questionnaires and now have gone home tonight. 20 They say in the press release, "Fact sheet 21 available by E-mail or fax." Of course, I don't know 22 what is in that fact sheet, but I just want to let the 23 Court know I'm very disturbed by this. 24 There is some history here. The plaintiffs 25 have appeared on television and radio and so on, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 27 1 interviewed by newspapers many times themselves. 2 Mr. Downey, who was the attorney from the Baum Hedlund 3 firm has been working with Mr. Vickery on the case has 4 issued press releases at different times during the 5 progress of the case. Mr. Vickery himself was on 6 network television within the last two weeks talking 7 about a murder/suicide case, the Phil Hartman case, 8 about an antidepressant called Zoloft, which is in the 9 same family of antidepressants as Prozac. What 10 disturbs me is that -- 11 THE COURT: Where was that case? 12 MR. SEE: I don't know if he's filed it yet. I 13 suspect it will be in Los Angeles. 14 What disturbs me, Your Honor, is there is a 15 pattern of the plaintiffs and their counsel seeking 16 out press attention, and now we have a jury not even 17 selected yet, but identified, and then they're issuing 18 press releases, and I want to ask the Court in the 19 most strenuous way I can that this case ought to be 20 tried in this courtroom. And particularly, when we've 21 got jurors out, not even selected yet, and the 22 plaintiffs side are issuing press releases. That's 23 not the way that this case ought to be fairly decided 24 and my request to the Court -- 25 THE COURT: Where was this release anyway? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 28 1 MR. SEE: Sir? 2 THE COURT: It says PR news wire? 3 MR. SEE: Yes. It was -- my understanding is 4 that it was sent out on a news wire, yes. We've 5 gotten calls from the press. 6 THE COURT: The local press or the Mainland 7 press? 8 MR. SEE: The local press. And what I would 9 like to ask the Court, in view of the history of the 10 press conferences and press releases and appearances 11 in the media, so my client can get a fair trial in 12 this community, that the Court admonish the plaintiffs 13 and the plaintiffs' attorneys and anyone who is 14 working with them that we should not be having press 15 releases and press conferences when we've got a jury 16 who goes home every night and they will carry with 17 them the Court's admonition to avoid such publicity, 18 but when we have one side creating such publicity, 19 it's not right and it's not fair. 20 It would be my request to the Court that the 21 Court direct counsel for the plaintiffs and the 22 plaintiffs and those working with them simply not 23 issue press releases, not have press conferences, not 24 seek out media interviews and so on during the trial 25 of this case so that our jury decides the case on what PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 29 1 is presented in the courtroom. 2 THE COURT: Well, this certainly is going to 3 present problems with the jury selection. 4 MR. VICKERY: I'd be glad to respond, Your 5 Honor. 6 THE COURT: Yes. 7 MR. VICKERY: We're very mindful of the jury 8 selection process and have been very sensitive to it. 9 We have had a number of press inquiries ourselves 10 about this case. This is important public business in 11 the matter of legitimate public concern and one 12 that -- of course one of the concerns that my clients 13 have that caused them to endure this case this long in 14 fighting with Lilly. 15 What we've tried to do to be able to respond to 16 all of these local inquiries is to have something that 17 was very plain vanilla. It does say fact sheet 18 available, and the fact sheet that is available is 19 simply the fact sheet that Mr. See and I have agreed 20 on in the agreed jury instructions that you would read 21 to the jurors. So if by inadvertence someone listened 22 to the fact sheet or heard a newspaper or -- I mean, 23 saw a newspaper -- 24 THE COURT: Which fact sheet are you referring 25 to that I'm going to be reading to the jury? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 30 1 MR. VICKERY: There is an agreed statement -- 2 it's an agreed jury instruction, it's about a page and 3 a half that Mr. See and I both agreed on. It's sort 4 of the plain vanilla description of what this case is 5 and both sides views. 6 THE COURT: Are you referring to the 7 preliminary jury instruction? 8 MR. SEE: I believe he is, Your Honor. 9 MR. VICKERY: I believe I am. 10 MR. SEE: It is the factual statement of the 11 case. 12 THE COURT: That's not read to the panel. 13 That's read after the jury is selected. 14 MR. VICKERY: Okay. Well, that -- because it 15 was something that Mr. See had agreed to and would be 16 read, I said it wouldn't do any harm if a juror or a 17 potential juror heard that. 18 Now, obviously, the situation will be very 19 different once our jury is empaneled, because at that 20 time they'll be admonished by the Court not to look 21 for any publicity and it's a completely different 22 situation. 23 THE COURT: I thought this was the very purpose 24 that you brought everyone in for the fifty 25 questionnaire -- the fifty-question questionnaire, to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 31 1 bring them in before there was any exposure, that they 2 might learn anything about the trial, and now you've 3 issued this press release. 4 MR. VICKERY: Well, we didn't do that until 5 today, Your Honor, and that was -- 6 THE COURT: And they haven't been selected yet. 7 MR. VICKERY: Well, that's true. They haven't 8 been selected yet. What we are trying to do is on the 9 one hand, accommodate the legitimate public concern, 10 but on the other, not making the jury selection 11 process more difficult. That's the course that I 12 tried to chart and the balance that we've tried to 13 strike. So certainly I have the concern, the same 14 concern Mr. See does about the jury selection process. 15 Now, you know, to take it one step beyond that, 16 what he wants is some sort of a First Amendment gag 17 order after the jury is selected, and of course, there 18 is no basis for violating my clients' First Amendment 19 rights otherwise. The jury selection process, I 20 agree, is a legitimate concern of the Court and one 21 that we've been very sensitive to. 22 MR. SEE: If I could just say, Your Honor, I -- 23 before we had the proceeding here, I thought it was my 24 obligation to go and ask Mr. Vickery about it and to 25 make a proposal to him, and I said, won't you and your PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 32 1 clients agree that while we're picking this jury and 2 trying this case, you just won't -- you won't be doing 3 this, you won't have press conferences and interviews 4 in the media and press releases? And I have to inform 5 the Court that Mr. Vickery would not make such an 6 agreement, which is why -- I just think that in this 7 community my client is entitled to have a fair trial 8 and notwithstanding the Court's admonition every day, 9 don't read the newspapers and don't watch TV or talk 10 to anybody about this. 11 I think as a practical matter, those things 12 inevitably happen, and it is one thing to have a 13 straightforward open door in the back of the 14 courtroom, the newspaper reporters here reporting in 15 an objective way about what happened. That's one 16 thing. That's the First Amendment. That's what 17 that's all about. But it is another thing to carry on 18 a public relations campaign. That's not what this 19 trial is for. 20 The reason the door is open in the back is to 21 protect the integrity of this process, not so somebody 22 can carry on what they may, all be it, very sincerely 23 believe is a crusade or press publicity campaign. 24 That's not what it's for. I'm just very concerned 25 that that's what's happening. Because already while PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 33 1 our jury haven't even been sworn yet, here it is. The 2 first one coming out. I just think that we need to 3 put the brakes on this before it even gets started. 4 MR. VICKERY: I am more concerned, Your Honor, 5 in terms of the jury selection process that we're 6 going to run into jurors tomorrow who have seen the 7 zillion dollars worth of advertising that Lilly has 8 done with the little happy sun coming out in all kinds 9 of magazines than they are in seeing some little press 10 release that was issued today. 11 In terms of a PR campaign affecting potential 12 jurors, I can't believe Mr. See would have the hutzpah 13 to suggest to the Court that we're doing that when 14 they're running these kinds of ads in national media 15 all across the country. 16 THE COURT: Well, I'm not going to issue a gag 17 order, but I am disturbed that this press release 18 seems to be counterproductive and to undermine the 19 very purposes of that questionnaire that you agreed 20 to. 21 MR. VICKERY: It was my intent to do exactly 22 the opposite, Your Honor, and if I've not done that 23 well, then I apologize to the Court for it. I was 24 trying to do exactly the opposite. 25 THE COURT: And at this point I'm simply going PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 34 1 to caution that whatever publicity there is may end up 2 tainting the jury and we may have to excuse some 3 jurors along the way. We may have a problem with the 4 panel tomorrow as a result of this also. We're going 5 to have to ask the panel whether they've read your 6 press release now. 7 MR. VICKERY: Sure. Oh, I was hoping the Court 8 would ask them whether they have seen anything about 9 Prozac because I'll bet you -- I would bet right now 10 there would be more people on the jury panel tomorrow 11 who have seen Lilly's big sunshine ad in all these 12 magazines -- 13 THE COURT: Well, you have questions in here 14 about Prozac. I mean, obviously, Prozac is the 15 subject matter of this litigation. 16 Anything else at this time? 17 MR. SEE: That's all at this time. 18 MR. VICKERY: Nothing, Your Honor. 19 THE COURT: We'll see you at nine o'clock 20 tomorrow morning. 21 (The proceedings were adjourned at 5:03 p.m. to 22 be reconvened on March 3, 1999 at 9:00 a.m.) 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 35 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 2, 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 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU