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 trial on 16 Wednesday, March 3, 1999 at 9:30 a.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 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2 1 APPEARANCES: 2 For Plaintiffs: ANDY VICKERY, ESQ. Vickery & Waldner 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 ROY K.S. CHANG, ESQ. 9 Shim & Chang 333 Queen Street 10 Suite 900 Honolulu, Hawaii 96813 11 For Defendant: ANDREW SEE, ESQ. 12 MICHELLE R. MANGRUM, ESQ. Shook, Hardy & Bacon L.L.P. 13 One Kansas City Place 1200 Main Street 14 Kansas City, Missouri 64105 15 EDMUND BURKE, ESQ. PATRICIA ABURANO, ESQ. 16 Burke Sakai McPheeters Bordner Iwanaga & Estes 17 737 Bishop Street Suite 3100 - Mauka Tower 18 Honolulu, Hawaii 96813 19 Also Present: Catherine Itai 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 3 1 (Whereupon, the following proceedings were had 2 in open court.) 3 THE CLERK: Civil No. 95-00185ACK, Susan K. 4 Forsyth, individually and as personal representative 5 of the Estates of June M. Forsyth and William D. 6 Forsyth, and William F. Forsyth, Jr. versus Eli Lilly 7 and Company, an Indiana corporation, et al. This case 8 is called for jury selection. 9 May we have appearances, please. 10 MR. VICKERY: Good morning, Your Honor. May it 11 please the Court, my name is Andy Vickery from 12 Houston, Texas. I represent the Forsyths and we're 13 ready for trial. With me at counsel table is 14 Ms. Karen Barth from Los Angeles and Mr. Roy Chang 15 from here in Honolulu. 16 THE COURT: Good morning. 17 MR. SEE: Your Honor, I'm Andrew See. I'm here 18 for the Defendant Eli Lilly and Company. With me is 19 Ms. Pat Aburano and Mr. Edmund Burke. Also at our 20 table is Ms. Catherine Itai, who is a representative 21 of Eli Lilly and works for the company here in Hawaii 22 and will be representing the company at the trial. 23 THE COURT: Good morning. 24 Good morning, ladies and gentlemen of the 25 panel. I apologize for the delay here. We had to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 4 1 resolve some matters. 2 We meet today to select from among you a jury 3 to sit in this trial which involves a claim by the 4 Plaintiff against the Defendant, and I want to read to 5 you a brief description of the claims. 6 The parties to this case are Plaintiffs William 7 D. Forsyth, Jr. and Susan K. Forsyth, individually and 8 as personal representatives for the Estates of June M. 9 Forsyth and William D. Forsyth, Sr. and the Defendant 10 Eli Lilly and Company. The Plaintiffs claim that 11 their father, William D. Forsyth, Sr., killed their 12 mother, June M. Forsyth, and committed suicide on 13 March 4, 1993 because of his ingestion of Prozac, a 14 prescription antidepressant medication manufactured by 15 Defendant Lilly. 16 Plaintiffs claim that Defendant Lilly is liable 17 for damages because Defendant Lilly did not provide 18 adequate warnings concerning risks associated with the 19 use of Prozac to physicians, such as the physicians 20 who prescribed Prozac to William D. Forsyth, Sr. 21 Plaintiffs claim that as a direct result of these 22 inadequate warnings and his ingestion of Prozac, 23 William D. Forsyth killed his wife, June M. Forsyth, 24 and committed suicide. Plaintiffs are the surviving 25 children of June M. Forsyth and William D. Forsyth, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 5 1 Sr. 2 The Defendant Eli Lilly and Company denies the 3 Plaintiffs' claim. Defendant Lilly asserts that there 4 is no credible medical or scientific evidence to 5 support the claim that Prozac causes people to kill 6 and/or commit suicide. Defendant Lilly asserts that 7 William D. Forsyth, Sr. did not kill June M. Forsyth 8 and commit suicide because he took Prozac, but rather 9 because of his depression and other long-standing 10 mental and emotional problems, serious stressors in 11 his life, including deteriorating health and marital 12 problems, and his inability to cope with day-to-day 13 events. 14 Defendant Lilly also asserts that it provided 15 adequate warnings concerning risks associated with the 16 use of Prozac to William D. Forsyth, Sr.'s prescribing 17 physicians and that in any event, any alleged 18 inadequate warnings by Defendant Lilly did not 19 directly cause June M. Forsyth and William D. 20 Forsyth's deaths. 21 These, of course, are issues to be determined 22 by the jury that have been raised here. Now, under 23 our system of law, the attorneys for the parties are 24 entitled to exercise challenges to prospective jurors. 25 These challenges are made for certain reasons or in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 6 1 some cases, without giving any reasons at all. 2 The process of selecting a jury is called voir 3 dire, which means to speak the truth in French. In 4 the selection process, we will ask you questions about 5 yourselves so that the attorneys can intelligently 6 select a jury. Please do not feel embarrassed that 7 you are being challenged. Just be candid in your 8 answers. 9 We will first ask general questions applicable 10 to all jurors and then more specific questions. This 11 is really the only way that the parties can be assured 12 of selecting a fair and impartial jury. 13 Now I'll briefly summarize the jury selection 14 procedure. First, the clerk will randomly pick and 15 draw out 18 names from which six jurors and six 16 alternates will be qualified. Now, each of you has 17 been given a juror number, and it's important that 18 when you answer a question, that you give us your 19 number and name so that the parties can identify you. 20 After the names are drawn by the clerk, the 21 jurors will be challenged for cause. Now, challenge 22 sounds a bit intimidating, but all it means is that 23 you may be excused from serving in this trial, 24 although you may be perfectly well qualified to serve 25 in any and all other trials. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 7 1 After we have completed excusing jurors for 2 cause, the attorneys will then exercise their 3 peremptory challenges, and these are challenges that 4 they make at their own discretion without giving any 5 reasons. 6 I would like to quote from the National Law 7 Journal, a summary of the role of jurors. "Jurors are 8 the cornerstone of our system of justice. They are 9 our peers summoned to sit in judgment, to do justice, 10 to speak as the conscience of our community. They 11 trace our roots back to the Magna Carta and the rich 12 heritage of the English judicial system. They are 13 charged with the public trust. 14 "They are called on to weigh the evidence, to 15 assess the credibility of witnesses, and to ferret out 16 the truth. They are asked to resolve the most complex 17 of scientific, medical, and financial issues on which 18 even experts in the field cannot agree. They also 19 decide the most emotional and controversial issues of 20 our day. 21 "In the final analysis, jurors are the arbiter 22 of trust and fairness in our society. They are the 23 cornerstone of our system of justice. They are our 24 peers summoned to sit in judgment, and they often are 25 called on for service well beyond the call of duty." PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 8 1 In effect, you as jurors, are the judges of the 2 facts of the case, but in judging the facts, you must 3 apply the law which the Court instructs. 4 As a cross-section of our community, you 5 represent many different cultures, educations, 6 religions, employments, and the like, and you each 7 have various opinions and biases, but you mustn't ever 8 not let such opinions and biases to interfere with 9 your reaching a fair and impartial verdict. 10 Your obligation to serve as jurors is one of 11 the few duties that the United States imposes upon you 12 as citizens. Serving on a jury should be an 13 interesting and meaningful experience, and one of the 14 most significant contributions that you could make to 15 your community. 16 This trial is expected to last approximately 17 three to four weeks. Each day we will start at 18 9:00 a.m. and go until 4:00. We'll take a mid-morning 19 break and then stop for lunch from 12:00 to 1:00, and 20 then we'll go from 1:00 until 4:00, with a 21 mid-afternoon break, and we will be meeting on 22 Tuesdays through Fridays because the Court has other 23 motions and matters to hear on Mondays. 24 You may eat breakfast and lunch in the Federal 25 Building, which is right across the way here. There's PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 9 1 a restaurant or a cafeteria on the fifth floor, which 2 has fairly reasonable prices and the food is fairly 3 good, and Restaurant Row and other restaurants are in 4 the vicinity also. 5 Have any of you served before as a juror? And 6 then I'm going to ask you to tell us whether that was 7 in federal or state court, whether it was a civil 8 matter or a criminal matter, and if it was a civil 9 matter, what type of case it was. 10 So if you would line up behind the microphones, 11 please, and let us know who has served on a jury 12 previously. 13 Yes, sir. 14 JUROR 76: Juror 76, James Truesdell. I served 15 on a jury on the state level. I believe it was a 16 criminal court, but it was for a DUI case. 17 THE COURT: And was the defendant found -- 18 please line up behind both mics so we can facilitate 19 it that way. 20 Was the defendant found guilty or innocent? 21 JUROR 76: Guilty, Your Honor. 22 THE COURT: And do you feel you can be a fair 23 and impartial juror in this trial? 24 JUROR 76: I would like to know more about the 25 case. I have some -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 10 1 THE COURT: All right. We will call you up 2 later. 3 Yes, ma'am. 4 JUROR 14: Number 14, Kelly Endo. I served in 5 the state court. 6 THE COURT: Could you speak a little closer to 7 the mic, please. 8 JUROR 14: I served in the state court and I 9 believe it was a criminal case. It was in possession 10 of marijuana. 11 THE COURT: And what was the result? 12 JUROR 14: The person was found guilty. 13 THE COURT: And you feel you could be a fair 14 and impartial juror in this trial? 15 JUROR 14: Yes. 16 THE COURT: Thank you. Yes, sir. 17 JUROR 03: Juror Number 3, Thomas Behnke. I 18 served on a state court jury in 1989 in a criminal 19 trial, Class C felony . The defendant was found 20 guilty on two or three charges. 21 THE COURT: And do you feel you can be fair to 22 both sides in this trial? 23 JUROR 03: I'm afraid I cannot. 24 THE COURT: We'll call you up later. Thank 25 you. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 11 1 Yes, sir. 2 JUROR 40: Juror Number 40. 3 THE COURT: Forty? 4 JUROR 40: Yes, 40. I served on a jury in the 5 state court in a case where a naval officer was 6 accused of attempted kidnapping. 7 THE COURT: And what was the result? 8 JUROR 40: The verdict was not guilty. 9 THE COURT: And you feel that you can be a fair 10 and impartial juror in this trial? 11 JUROR 40: I believe so. 12 THE COURT: Thank you. Yes, sir. 13 JUROR 47: Juror Number 47, Harry Mizushima. I 14 served both on civil and criminal court on the state 15 level. The civil case was a lawsuit against the state 16 for a prisoner hanging himself in the cell. 17 THE COURT: We seem to have a number of those. 18 JUROR 47: And the criminal case was last year 19 where -- for shoplifting from a store. 20 THE COURT: And was the defendant found guilty 21 or not guilty? 22 JUROR 47: Not guilty. 23 THE COURT: And what was the result of that 24 civil case? 25 JUROR 47: It was found that the State was not PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 12 1 responsible. 2 THE COURT: And you feel you can be fair to 3 both sides in this trial? 4 JUROR 47: Yes, sir. 5 THE COURT: Thank you. 6 Yes, ma'am. 7 JUROR 20: Number 20, Donna Grain, and I served 8 on a jury in the Territorial Court. We were not a 9 state yet, in 1953 I believe it was. It was a 10 criminal case, sex under 16, and we did find the 11 defendant guilty. 12 THE COURT: And do you feel you can be a fair 13 and impartial juror in this trial? 14 JUROR 20: Yes, I do. 15 THE COURT: Yes, ma'am. 16 JUROR 81: Number 81, Betty Yokoi. I served in 17 California, a civil case, a malpractic case between an 18 orthopedic surgeon and the patient was claiming he 19 didn't do a good job, but it wasn't -- the money 20 wasn't awarded to the plaintiff. 21 THE COURT: The defendant was found not liable? 22 JUROR 81: Yeah, not liable. 23 THE COURT: And do you feel you can be fair to 24 both sides in this trial? 25 JUROR 81: I don't think so. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 13 1 THE COURT: You don't think so? All right. 2 We'll call you up. 3 Yes, sir. 4 JUROR 82: Number 82, Gary Zane. I served on 5 two criminal trials in state court, one for bribery, 6 which the defendant was found innocent; and one for, I 7 guess it was, traffic, which was found guilty. 8 THE COURT: And do you feel you can be a fair 9 and impartial juror? 10 JUROR 82: Yes, sir. 11 THE COURT: Thank you. Yes, sir. 12 JUROR 60: Your Honor, my number is 60. My 13 name is Nolan Remmers. I served on the jury on a 14 civil case in the state level. It was a lawsuit 15 between two partners, and also included some insurance 16 companies, and the result was we were a hung jury. It 17 was a mistrial. 18 THE COURT: And do you feel you can be a fair 19 and impartial juror in this trial? 20 JUROR 60: Yes, Your Honor. 21 THE COURT: Yes, sir. 22 JUROR 61: Juror 61, Rogelio Sabido. I served 23 in 1993 on a criminal case in the state court. It was 24 a DUI case, but it was dismissed. 25 THE COURT: And do you feel you can be fair to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 14 1 both sides in this case? 2 JUROR 61: Yes, sir. 3 THE COURT: Thank you. 4 Yes, ma'am. 5 JUROR 29: Juror Number 29, Joyce Imai. I 6 served on the state level. It was a lawsuit against a 7 car accident and the plaintiff was paid a sum. 8 THE COURT: And do you feel you can be a fair 9 and impartial juror in this trial? 10 JUROR 29: I will try. 11 THE COURT: Pardon me? 12 JUROR 29: I will try. 13 THE COURT: Thank you. Yes, ma'am. 14 JUROR 62: Juror 62, Michele Saito. I served 15 last year in the state court. It was a criminal case, 16 domestic violence. We found the defendant guilty. 17 THE COURT: What was the defendant charged 18 with? 19 JUROR 62: Domestic violence. 20 THE COURT: And do you feel you can be a fair 21 and impartial juror in this trial? 22 JUROR 62: Yes. 23 THE COURT: Thank you. Yes, sir. 24 JUROR 67: Juror 67, Wayne Suzuki. 25 THE COURT: Sixty-seven? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 15 1 JUROR 67: Juror 67. I served on the state 2 level, both civil and criminal. I was an alternate on 3 a civil case. 4 THE COURT: What kind of a case? 5 JUROR 67: Civil. 6 THE COURT: What was the nature of it though? 7 JUROR 67: It was a DUI. I was an alternate. 8 THE COURT: And what was the civil case, was it 9 a contract case, an accident, or what? 10 JUROR 67: An accident. 11 THE COURT: And what happened there? 12 JUROR 67: I don't know. I was excused. 13 THE COURT: Okay. Do you feel you can be fair 14 to both sides in this trial? 15 JUROR 67: Yes, sir. 16 THE COURT: Okay. Thank you. 17 For those of you who served on juries in 18 criminal cases, I wish to point out the burden of 19 proof in a civil case is different. In a civil case 20 the burden of proof requires that you establish your 21 claim by a preponderance of the evidence, which is 22 simply that over 50 percent of the evidence favors 23 your side. It's been likened to the scales of justice 24 tipping in your favor. 25 On the other hand, in a criminal case, the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 16 1 burden of proof requires proof beyond a reasonable 2 doubt. That's a much stricter burden of proof. 3 Is there anyone who feels that he or she cannot 4 follow the burden of proof in a civil case of 5 establishing their case by the preponderance of the 6 evidence? 7 (No response.) 8 THE COURT: Has anyone served as a grand juror? 9 (No response.) 10 THE COURT: You should understand that the 11 function of a grand jury is to investigate and review 12 evidence to determine by using a lesser standard of 13 proof of probable cause, whether a crime was 14 committed, and if so, whether a particular person 15 committed the crime. 16 Does any juror know another prospective juror 17 here today? If you would stand and come up to the 18 mics, please. 19 JUROR 09: I'm Juror Number 9. My name is 20 Laurie Cheu. I know Charlie. We used to work many 21 years ago at the same company. 22 THE COURT: And what number are you, sir? 23 JUROR 15: I'm Juror Number 15. 24 THE COURT: 1-5. And if you were both on the 25 jury, would you each vote your own individual judgment PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 17 1 and not feel you had to vote together? 2 JUROR 15: Of course, I would. 3 JUROR 09: I would, too. 4 THE COURT: Thank you. 5 JUROR 15: I also know Toni Pedro. 6 JUROR 55: We're just an acquaintance. 7 THE COURT: If you would stand and give us your 8 number, too, please.? 9 JUROR 55: Juror 55. 10 THE COURT: And again, would you each vote your 11 own individual judgement if you were both on the jury? 12 JUROR 55: Yes. 13 JUROR 15: Yes. 14 THE COURT: Thank you. Yes, ma'am. 15 JUROR 17: I'm Juror Number 57, Carolyn -- I'm 16 sorry, 17, Carolyn Fuertes. I know Nino Lutao. He's 17 a nephew. 18 THE COURT: And what's your number, sir? 19 JUROR 42: Number 42, sir. 20 THE COURT: And if you were both on the jury, 21 would you each vote your own individual determination? 22 JUROR 17: Yes. 23 JUROR 42: Yes. 24 THE COURT: Thank you. 25 JUROR 60: Your Honor, Juror Number 60, Nolan PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 18 1 Remmers. I know Julio Tomas. 2 THE COURT: And what's your number, sir? 3 JUROR 74: 74. 4 THE COURT: 7-4? 5 JUROR 74: (Juror nods head.) 6 THE COURT: And if you were both on the jury, 7 would you vote your own individual determination and 8 not feel that you would have to vote together? 9 JUROR 74: Yes. 10 JUROR 60: Yes, sir. 11 THE COURT: Thank you. Now has anyone been a 12 witness in a civil or criminal trial? If you would 13 come up to the mics, please. 14 We have a lot of witnesses here. Yes, ma'am. 15 JUROR 77: Juror 77, Julie Ugalde. I've been a 16 witness on two occasions, one in a civil case on 17 behalf of a driver who was involved in an accident, 18 and the second one I was a witness on behalf of the 19 company in a bad faith lawsuit. 20 THE COURT: And do you feel you could be a fair 21 and impartial juror in this trial? 22 JUROR 77: Yes, sir, I could. 23 THE COURT: Yes, sir. 24 JUROR 51: Juror 51, Lawrence Okuda. I am 25 employed with a major insurance company and I have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 19 1 been called many times as a witness representing my 2 company. I deal with automobile claims. 3 THE COURT: And do you feel you could be a fair 4 and impartial juror in this trial? 5 JUROR 51: Yes, Your Honor. 6 THE COURT: Thank you. Yes, sir. 7 JUROR 15: I'm Juror Number 15. I was an 8 expert witness in a fraud case under UCMJ, and the 9 defendant was found guilty. 10 THE COURT: What's your expertise? 11 JUROR 15: Auditing and accounting. 12 THE COURT: I can't hear you. 13 JUROR 15: Auditing and accounting. 14 THE COURT: And do you feel you can be a fair 15 and impartial juror in this trial? 16 JUROR 15: Yes, sir. 17 THE COURT: Thank you. Yes, ma'am. 18 JUROR 68: Juror Number 68, Amy Takiguchi. I 19 was a witness for a co-worker whose husband had 20 threatened her, threatened to kill her. 21 THE COURT: And do you feel you can be fair to 22 both sides in this trial? 23 JUROR 68: Yes. 24 THE COURT: Thank you. Yes, ma'am. 25 JUROR 31: Juror Number 31, Katherine Kane. It PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 20 1 was a juvenile case involving my son who was injured 2 by another juvenile. 3 THE COURT: And do you feel you can be a fair 4 and impartial juror? 5 JUROR 31: Possibly. 6 THE COURT: Pardon me? 7 JUROR 31: Possibly. I'm not sure. 8 THE COURT: Thank you. Yes, sir. 9 JUROR 03: Juror Number 3, Thomas Behnke. I 10 was called for a deposition by the plaintiff's 11 attorney in the recent King Trenler versus State of 12 Hawaii, Department of Transportation, and I also 13 appeared as a witness in a civil case, Wasa Electric 14 versus Molokai Ready Mix. 15 THE COURT: What was that last one? 16 JUROR 03: Wasa Electric. I believe they had a 17 claim against a company called Molokai Ready Mix. 18 THE COURT: Molokai what? 19 JUROR 03: Ready Mix. It involved a concrete 20 truck. 21 THE COURT: And do you feel you can be a fair 22 and impartial juror in this trial? 23 JUROR 03: As I said before, I'm afraid I 24 cannot. 25 THE COURT: Thank you. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 21 1 Has anyone been a party to a lawsuit, a 2 plaintiff or a defendant in a lawsuit? And if so, 3 please describe the nature of the lawsuit and what the 4 result of it was. 5 JUROR 59: I'm Number 59, Victoria Rectenwald. 6 I'm involved in a lawsuit against a major university 7 in Texas for discrimination against women in 8 oceanography and it's on appeal. 9 THE COURT: It's a discrimination case? 10 JUROR 59: Um-hum. 11 THE COURT: What's the basis of the 12 discrimination? 13 JUROR 59: Against women in sea-going positions 14 in oceanography. 15 THE COURT: And that suit is pending now? 16 JUROR 59: Um-hum. 17 THE COURT: And do you feel you can be a fair 18 and impartial juror in this trial? 19 JUROR 59: Yes. 20 THE COURT: Thank you. Yes, sir. 21 JUROR 51: I'm Juror 51, Lawrence Okuda. I 22 have a personal injury lawsuit that's pending right 23 now. 24 THE COURT: And again, do you feel that you can 25 be a fair and impartial juror? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 22 1 JUROR 51: Yes, Your Honor. 2 THE COURT: Thank you. Yes, sir. 3 JUROR 08: I'm Juror Number 8. I'm a 4 co-defendant on a construction defect and the case 5 settled out of court. 6 THE COURT: The case settled out of court? 7 JUROR 08: Out of court. 8 THE COURT: And do you feel you can be a fair 9 and impartial juror? 10 JUROR 08: Yes, I believe so. 11 THE COURT: Thank you. Yes, ma'am. 12 JUROR 17: I'm Number 17, Carolyn Fuertes. I'm 13 not sure if this applies, but I represent a dental 14 office as a plaintiff for small claims. 15 THE COURT: In what? 16 JUROR 17: Small claims court, collections. 17 THE COURT: Oh. And do you feel you can be 18 fair to both sides in this trial? 19 JUROR 17: Yes. 20 THE COURT: Thank you. Yes, sir. 21 JUROR 33: Juror 33. I have a lawsuit on me 22 for dropping one can on one person, but it's out of 23 court. 24 THE COURT: What was the claim? 25 JUROR 33: Punitive damage. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 23 1 THE COURT: And do you feel you can be a fair 2 and impartial juror in this case? 3 JUROR 33: Yeah, I could. 4 THE COURT: Thank you. Anybody else? 5 (No response.) 6 THE COURT: Has anyone had any legal training 7 or is anyone married to an attorney? 8 Yes. Um-hum. 9 JUROR O1: Juror Number One, Eden Aken. In 10 1988 I got my paralegal certificate from UH Hilo. 11 THE COURT: Paralegal? 12 JUROR O1: Yes. 13 THE COURT: And you're practicing as a 14 paralegal now? 15 JUROR O1: No. 16 THE COURT: Pardon me? 17 JUROR O1: No, sir. 18 THE COURT: What type of employment are you 19 involved in now? 20 JUROR O1: Currently was a medical receptionist 21 for internal medicine doctors. The paralegal course 22 was just a six-week certificate course. 23 THE COURT: And do you feel you can be a fair 24 and impartial juror in this trial? 25 JUROR O1: Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 24 1 THE COURT: Thank you. Yes. 2 JUROR 10: I'm Juror Number 10, Darlene Ching. 3 I was married to an attorney and then I have been 4 working in law for the last 20 years. Right now I'm a 5 paralegal. I work for a collection attorney. 6 THE COURT: And what sort of practice does that 7 attorney have? 8 JUROR 10: Mostly collection. We represent 9 different clients and, collect debts. 10 THE COURT: And do you feel you can be fair to 11 both sides in this trial? 12 JUROR 10: Maybe. I don't know. It's kind of 13 difficult to say. 14 THE COURT: Yes, ma'am. 15 JUROR 09: I'm Laurie Cheu, Number 9. I'm 16 currently employed as a paralegal for Sterling & 17 Tucker. 18 THE COURT: For who? 19 JUROR 09: Sterling & Tucker. We practice 20 estate planning. 21 THE COURT: And do you feel you can be fair to 22 both sides? 23 JUROR 09: I believe I can. 24 THE COURT: Thank you. Yes, ma'am. 25 JUROR 31: Juror Number 31, Katherine Kane. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 25 1 I'm a legal clerk with the prosecuting attorney. 2 THE COURT: I'm sorry? 3 JUROR 31: I'm a legal clerk with the 4 prosecuting attorney. 5 THE COURT: For the City? 6 JUROR 31: Yes. 7 THE COURT: And I already asked you the 8 question about whether you could be a fair and 9 impartial juror? 10 JUROR 31: Yes. 11 THE COURT: All right. I'm going to ask 12 counsel to come to side bar. 13 (Whereupon, the following proceedings were had 14 at side bar.) 15 THE COURT: I'm surprised we have a number of 16 people who question whether they can be fair and 17 impartial on the questionnaire. We better bring up 18 Number 76 first. 19 THE CLERK: Juror Number 76. Please come to 20 the side bar. 21 THE COURT: I asked you whether you felt you 22 could be a fair and impartial juror and you seemed to 23 have some doubt. 24 JUROR 76: My only reservation is that my 25 feeling for persons responsibility toward himself in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 26 1 matters of this case. What I'm understanding is that 2 the Plaintiff is trying to find the Defendant guilty 3 for their deaths -- for the persons deaths. 4 Now, my feeling and my beliefs -- 5 MR. SEE: Try to keep your voice down. 6 JUROR 76: My beliefs are such that a person is 7 more responsible than somebody else for their life, 8 and if -- I don't believe medication can necessarily, 9 unless circumstances that I'm unfamiliar with, in this 10 case, would cause a person to do something like that. 11 That's why I said I'm not sure, Your Honor. 12 THE COURT: It's the position of the 13 Plaintiffs, that Mr. Forsyth had been taking Prozac 14 and it caused him to, I guess, to -- whether you want 15 to call it irrationally or consumed his thinking 16 process, we don't know. So I guess my -- Counsel, 17 maybe you can describe it better than I. 18 MR. VICKERY: Mr. Truesdell, is it your belief 19 that people should take responsibility for themselves 20 that you would have a difficult time weighing evidence 21 that indicates that there's a drug that caused them to 22 behave in a different way? 23 JUROR 76: Pretty much so, yes. It's -- I get 24 infuriated when I hear about a lawsuit when people are 25 trying to place blame on something else or somebody PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 27 1 else for their own actions. 2 MR. VICKERY: So would it be fair to say that 3 since I'm the one trying to do that on behalf of the 4 Forsyths, that I start a little bit behind the eight 5 ball in terms of Mr. See in your mind? 6 MR. SEE: If I may, Your Honor. Mr. Truesdell, 7 you indicated initially that unless there was 8 something that you were not familiar with or evidence 9 that you haven't heard of, there's going to be 10 evidence presented in this case, in this courtroom, 11 and I think the fundamental question before us is are 12 you -- would you be a person who would be able to 13 listen to that evidence and then make your mind up 14 based upon that? 15 JUROR 76: I could, but I have a bias now. 16 THE COURT: All right. The position, I thought 17 Mr. Vickery was going to explain this, it is their 18 position that having taken Prozac, it caused him to 19 lose the ability to think rationally and to make him 20 very violent and act out and kill his wife and kill 21 himself. 22 JUROR 76: I am sympathetic for the person. 23 MR. SEE: The question is, though, if you were 24 presented with the evidence, could you -- 25 JUROR 76: I could. Let me just say, when I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 28 1 see something like this, my initial reaction is it is 2 not whatever he took. It's not that at all, but if 3 evidence is presented to me that changes my mind, then 4 I may have a different opinion. 5 MR. SEE: And the real question is, are you 6 willing to listen to the evidence and make your 7 decision in this case based upon -- 8 JUROR 76: Yes, I am. 9 MR. SEE: -- based upon the evidence? 10 THE COURT: You're willing to keep an open 11 mind? 12 JUROR 76: I am willing to keep an open mind. 13 THE COURT: Any other questions? 14 MR. VICKERY: There was a question from 15 yesterday about health problems that he had. You want 16 to do that now while he's here? 17 THE COURT: Yes. 18 MR. VICKERY: In Question Number 38, you 19 mentioned you have a slipped disk or something. 20 JUROR 76: I have a bulging disk. I was just 21 diagnosed on Friday. I was starting treatment today. 22 THE COURT: Who's your doctor? 23 JUROR 76: Dr. Terry Smith. 24 THE COURT: You indicated you were willing to 25 serve? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 29 1 JUROR 76: Yes, because the physical therapist 2 is willing to meet me at five o'clock in Aiea. 3 Recesses, as I understood the Court to say, are at 4 four o'clock, so that should give me enough time to 5 get to the therapist. I've had a few major back 6 surgeries, so the pain is okay. 7 THE COURT: Any other questions? 8 MR. VICKERY: No, sir. 9 MR. SEE: No, sir. 10 JUROR 76: Thank you. 11 THE COURT: Any problems with Number 76? 12 MR. SEE: No problem. 13 MR. VICKERY: I move to strike him for cause. 14 He said he has a bias, and even though he would try to 15 lay it aside, he said we start behind the eight ball 16 with him, and I'm entitled to jurors where we start 17 evenly with them. 18 THE COURT: He said he could keep an open mind 19 if your evidence convinces him otherwise. 20 MR. VICKERY: I understand that, but I'm 21 entitled to unbiased jurors. To start behind someone 22 puts me at a disadvantage, so I would move to strike 23 him. 24 MR. SEE: I would oppose that. He clearly said 25 he could listen to the evidence and consider it and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 30 1 make his decision upon that. 2 THE COURT: I agree with Mr. See. 3 Number 3. 4 THE CLERK: Juror Number 3. 5 THE COURT: Good morning. You indicated you 6 might have a problem in being fair and impartial? 7 JUROR 03: Well, having heard the charges, in a 8 nutshell, I'm inclined to be with the Defendant. 9 THE COURT: Pardon me? 10 JUROR 03: I'm inclined to agree with the 11 Defendant. 12 THE COURT: Why? 13 JUROR 03: Well, my father is a physician. 14 I've grown up around medical literature and such, and 15 also have a scientific background, and I have a 16 bachelors of science. I'm just extremely skeptical 17 of -- that a substance, such as Prozac, could be the 18 single cause of such an act occurring out of the blue. 19 Regarding this case, I do remember reading something 20 about it in the news several years ago about this 21 occurrence. 22 THE COURT: You're from Haiku? 23 JUROR 03: Yes. If this is the one with the 24 couple in Lahaina. 25 THE COURT: You seem to have your mind made up? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 31 1 JUROR 03: Well, let's say, I'm skeptical. 2 Also, I don't know if this is the right or prime time 3 to ask it, but my position in the company I'm with 4 requires that I be on site on Molokai and it has a 5 deadline in June, and to be pulled out of that for 6 three weeks and having my paperwork load piling up, 7 I'd find myself trying to keep on top of work. 8 THE COURT: You didn't mention that in your 9 questionnaire. 10 JUROR 03: I mentioned it to the clerk, and she 11 said I would have to bring that up with you today. 12 THE COURT: Counsel have any questions? 13 MR. VICKERY: None. 14 MR. SEE: I guess I would ask one, sir. There 15 will be evidence, scientific evidence produced in this 16 case, Plaintiffs will produce evidence in the 17 furtherance of Plaintiffs' case, and the defense will 18 produce evidence and the real question is whether you 19 can evaluate that evidence and decide the case based 20 upon what's decided here -- presented here in the 21 courtroom. That's the real question we're trying to 22 get at. How do you feel about that? 23 JUROR 03: I find that the nature of psychology 24 isn't exact and sometimes people do things that you 25 cannot -- no matter how much evidence you can produce, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 32 1 you cannot completely explain why people do things. 2 MR. SEE: But the question is -- 3 JUROR 03: Or also my background is not 4 necessarily chemistry and biology, but if it is 5 presented in a way that's not cooking the data, for 6 instance, if it is statistically correct and somebody 7 else or another independent party can vouch that this 8 research is set up correctly and is not slanted to one 9 direction or another. 10 MR. SEE: Well, as a juror, you are free to 11 believe or not to believe the evidence that's 12 presented in the case. The legal question is -- and 13 there may be evidence that you believe and there may 14 be evidence that you choose not to believe, but the 15 question is, will you be able to base the decision 16 about this claim relying on the evidence, will you 17 listen to it and will you consider it? Will you give 18 each party a fair shot based upon the evidence? 19 That's the question. That's the question. 20 JUROR 03: I will listen to the evidence. As I 21 said, I tend to remain skeptical on such claims such 22 as the one the Plaintiff is making, but I will listen 23 to the evidence. I will not write it all off. 24 THE COURT: Thank you. 25 Well? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 33 1 MR. VICKERY: Plaintiffs move to strike him, 2 Your Honor. 3 MR. SEE: I believe that's probably 4 appropriate, Your Honor. 5 THE COURT: I agree. Three is stricken. 6 Was it 81? 7 THE CLERK: Um-hum, yes. 8 Juror Number 81. 9 THE COURT: Yes, ma'am. You indicated that you 10 would have a problem with being a fair and impartial 11 juror? 12 JUROR 81: I feel that I am -- suicide was a 13 problem prior to taking Prozac. They might have been 14 having problems way before that. 15 THE COURT: Why do you think that? 16 JUROR 81: Because I know some people that have 17 taken Prozac and it has helped them, and I feel the 18 person -- the couple probably had problems way back 19 and that might have been an agent to the suicide and 20 that Prozac didn't cause it. 21 THE COURT: Well, I think if there was a 22 substantial factor, are counsel -- 23 MR. SEE: Substantial factor. 24 MR. VICKERY: Substantial factor is the test. 25 JUROR 81: What is the substantial factor, as PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 34 1 to what? 2 MR. SEE: Well, the test is whether, according 3 to the Plaintiffs' claim, whether taking a drug was a 4 substantial factor in causing the killing and the 5 suicide. 6 JUROR 81: It was an agent to that, but prior 7 to that, he must have had problems way before. Even 8 if he hadn't taken it, he might have murdered his wife 9 and killed himself even prior to taking the 10 medication. That's how I felt. 11 THE COURT: Well, again, you said it might have 12 caused a suicide before. 13 JUROR 81: Right. 14 THE COURT: But the Plaintiffs are claiming the 15 Prozac was an agent that caused him to commit suicide. 16 The test will be whether Prozac was a substantial 17 factor in causing him to commit suicide. 18 JUROR 81: Deep down I felt that way before, 19 that there must have been something else to cause his 20 depression, and maybe the doctors see that there are 21 so many cases where patients didn't look sick mentally 22 and boom, all of a sudden something happens. It could 23 have been a family crisis. Could be anything. Could 24 be change of life. You never know. That's how I 25 felt. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 35 1 THE COURT: Counsel have any other questions? 2 MR. VICKERY: There was a work-related question 3 from the questionnaire on this, Your Honor. She has a 4 new job on Question Number 40. 5 THE COURT: I don't have that down here. 6 JUROR 81: I just got a new job description and 7 I'm in the process of learning it. 8 THE COURT: Are you saying this is difficult 9 for you to do? 10 JUROR 81: This is a whole new ball game as far 11 as the job description. I've never been in this field 12 before, so this is something that I have to do and 13 they're short -- I don't know if we can talk about 14 work related, but they are shorthanded and I know 15 sitting here is going to make my stress level go 16 higher because I'm worried about the job. 17 THE COURT: When did you start your new job? 18 JUROR 81: Just three weeks ago. So sitting 19 here will just make me worry. 20 THE COURT: Any other questions? 21 MR. VICKERY: No, Your Honor. 22 MR. SEE: Maybe I could just ask one. Ma'am, 23 during the trial, the Plaintiffs will put on evidence 24 to support their claim and then Lilly will have an 25 opportunity to put on evidence about that subject, and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 36 1 the real question before us is, can you sit in as a 2 juror and listen to the evidence put on by both sides 3 in a fair and unbiased way, to consider that evidence 4 and then come to your decision based upon the evidence 5 that is presented in the courtroom? Is that something 6 you could do? 7 JUROR 81: I don't think so. It is my opinion 8 that there must have been something prior to that. 9 THE COURT: Thank you. 10 Any problems striking that one? 11 MR. SEE: No problems. 12 MR. VICKERY: None at all. 13 THE COURT: Okay. Eighty-one is stricken. 14 Number 10. 15 THE CLERK: Juror Number 10. 16 MR. SEE: I had 31 also. 17 MR. VICKERY: Thirty-one and twenty-nine. 18 THE COURT: Thirty-one and what? 19 MR. VICKERY: Ms. Barth handed me 29. 20 THE COURT: Yes, ma'am. You indicated that you 21 might have a problem being a fair and impartial juror? 22 JUROR 10: Yeah, a little bit. I have a good 23 friend who has a daughter who had a serious mental 24 problem. 25 THE COURT: Daughter had what? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 37 1 JUROR 10: A real serious mental problem. And 2 I haven't seen that it caused her to be violent in any 3 way. In a way, it kind of saved her life. And I 4 sometimes wonder if we put too much blame on medicine. 5 THE COURT: The Plaintiffs aren't claiming that 6 all people who have taken Prozac have committed 7 suicide, obviously. 8 JUROR 10: Well, that's true, because she's 9 done well on it. 10 THE COURT: Both sides will be putting on 11 scientific evidence and you have some legal 12 background, right? 13 JUROR 10: Right. 14 THE COURT: The Plaintiffs' contention is that 15 Prozac made Mr. Forsyth act irrationally and violently 16 while taking the medication. If they put on 17 scientific evidence that is persuasive of that, would 18 you -- 19 JUROR 10: I could certainly listen, sure. 20 MR. VICKERY: Would you have an open mind? 21 JUROR 10: I have a concern about the whole 22 thing. I often sometimes feel that we put too much 23 blame on medicines doing violent things. You hear 24 about it a lot lately. I think it is a cop-out. I 25 don't know if it's people who are evil or what. It PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 38 1 bothers me. 2 THE COURT: But you feel you can keep an open 3 mind? 4 JUROR 10: I would certainly try to. 5 THE COURT: Any questions from counsel? 6 MR. VICKERY: The only one I had is from the 7 questionnaire yesterday. She said, "I can't meet my 8 financial obligations on $40 a day." Are you going to 9 lose your paycheck if you have to serve? 10 JUROR 10: I won't have a paycheck unless I go 11 after the trial and work on the weekends. 12 MR. VICKERY: And if you were here all day and 13 then working at night, I guess, that would take away 14 your attention from the trial? 15 JUROR 10: It might, but I know we have an 16 obligation as citizens, right. 17 THE COURT: Are you asking to be excused 18 because of your financial situation? 19 JUROR 10: Probably. It would be good. It 20 would be helpful to me. I don't make a lot as it is, 21 and I do -- 22 MR. BURKE: You will get paid as a juror. 23 JUROR 10: Yeah, I will get paid as a juror. 24 It won't meet my paycheck, and I'm the only person 25 that does take care of my job, so I haven't been able PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 39 1 to train anyone to take over for me. I will have to 2 work after the trial and on the weekends in order to 3 keep up and in order to see that I have enough money 4 to pay the mortgage. 5 THE COURT: Any other questions? 6 MR. VICKERY: No, Your Honor. 7 THE COURT: Mr. See? 8 MR. SEE: I really don't, Your Honor. If you 9 are really in a tough situation, do you want to be 10 excused because of the financial situation or are you 11 willing to serve? That's what he's really try to ask 12 you. 13 JUROR 10: It is hard for me to say I won't 14 serve, but it will be hard, but even though it is hard 15 for me, I will still do that. 16 THE COURT: We appreciate that. 17 JUROR 10: In other words, I will work out the 18 situation. I've had a lot of tough things in life. I 19 guess I can solve this problem, too. 20 THE COURT: But you would rather be excused? 21 JUROR 10: I would. 22 THE COURT: Thank you. 23 Well, we need more citizens like that. I think 24 we ought to excuse her though. 25 MR. SEE: I think we should excuse her. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 40 1 MR. VICKERY: I agree, Your Honor. 2 THE COURT: Okay. Excuse Number 10. 3 Number 31. 4 THE CLERK: Juror Number 31. 5 THE COURT: Yes, ma'am. You indicated that you 6 might have some problems being fair and impartial? 7 JUROR 31: Yeah. I've had reactions to drugs 8 on a couple of occasions. 9 THE COURT: Like what? 10 JUROR 31: The first one was Sulfo and 11 penicillin, and I have -- 12 THE COURT: That started back in World War II. 13 JUROR 31: It wasn't that long. Excuse me. 14 THE COURT: I had problems back in World War 15 II. 16 JUROR 31: I wasn't there. Also, I have taken 17 an antidepressant and an antiseizure medicine because 18 I suffer from migraines so they give me it in lower 19 doses to try to control it or whatever. 20 THE COURT: What are you taking again? 21 JUROR 31: The doctor prescribed a low dose of 22 an antidepressant, an antiseizure medicine. I took an 23 antidepressant for about 30 days and an antiseizure 24 medicine for one. One changed my personality 25 drastically. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 41 1 THE COURT: Which one? 2 JUROR 31: I can't remember. I took Epicort, I 3 know for sure, but I can't remember what the other one 4 was. I know it wasn't Prozac. And one altered my 5 personality where it just kind of mellowed me out. I 6 neither laughed nor cried. It was just nothing. And 7 the other one made me very, very ill. 8 And I don't -- I feel that there's not enough 9 adequate -- I carry a pill book when I go to the 10 doctor for medicine, to look it up, because I don't 11 think the doctor or pharmaceutical is adequate for me 12 anyway. 13 THE COURT: You don't think you could be fair? 14 JUROR 31: I don't think so. I think it would 15 be hard for me because of things I experienced with 16 drugs and things on the labels, and maybe the doctor 17 didn't tell me or, you know, I just have had strange 18 reactions to them. You know, people have different 19 reactions to different drugs. 20 THE COURT: Now, Eli Lilly will be putting on 21 evidence, scientific evidence, and their position 22 would be that Prozac doesn't cause any kind of 23 reaction or any suicidal tendencies. 24 JUROR 31: Um-hum. 25 THE COURT: If that's -- if that evidence is of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 42 1 a convincing nature to you, would you have an open 2 mind to that -- 3 JUROR 31: Probably so. 4 THE COURT: -- or do you think you can't be 5 fair to them? 6 JUROR 31: I probably would have an open mind, 7 but it is in me because I know that drugs do change 8 personalities. I've seen it in myself, for one thing, 9 from the one drug I took, and to the point where 10 someone came up to me and asked me if something was 11 wrong with me because it just totally leveled me out 12 where I seemed like I had no personality. I did not 13 show any extreme. You know, there was no extreme one 14 way or the other. It was just a real level, so I'm 15 not sure. I can't say for sure. Honestly, I can't 16 say for sure. 17 THE COURT: Counsel, any questions? 18 MR. VICKERY: Just this one, that if you were 19 entitled to serve and allowed to serve and the judge 20 told you to listen to all the evidence and base the 21 verdict on the evidence, would you do that? 22 JUROR 31: I think I could. 23 MR. VICKERY: Okay. Thank you. 24 MR. SEE: The fundamental question is if you 25 were put in a jury in this case, do both parties start PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 43 1 from the same place or do you think one is just a 2 little bit ahead of the other in your own mind? 3 JUROR 31: Probably a little bit ahead of the 4 other. 5 MR. SEE: Do you think it might color the 6 evidence when it comes in? 7 JUROR 31: I'm not sure. 8 MR. SEE: You could not tell us for sure? 9 JUROR 31: I could not tell you for sure. 10 MR. SEE: We appreciate your candor. 11 THE COURT: What's your position on 31? 12 MR. SEE: I move to strike for cause. 13 THE COURT: Now, you just persuaded me that we 14 should strike the other one, too, then, Mr. Truesdell, 15 Number 76. 16 MR. VICKERY: I agree with the Court. 17 MR. SEE: As I recall, Mr. Truesdell, he said 18 he would keep an open mind. 19 THE COURT: You asked whether he would start 20 with a bias or not. That's the very same thing he 21 asked, the same question that Mr. Vickery asked. 22 MR. SEE: Well, I was just looking at my note. 23 He said, "I could listen to the evidence and make a 24 decision based on that." 25 "Are you willing to keep an open mind?" PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 44 1 "I could do that." 2 THE COURT: That's what she said, too, but both 3 of them said that they wouldn't start at the same 4 level and both of them said they would have an open 5 mind. 6 Are they both stricken? I think that would be 7 the safer route. 8 MR. SEE: That will be fine, Your Honor. 9 THE COURT: Okay. Number 76 stricken, and 10 we'll also strike Number 31. 11 Are we down to 53? 12 THE CLERK: Yeah. Correct. 13 THE COURT: I think we've covered everyone who 14 said they would have some kind of bias. Do you have 15 any problems with the ones we brought up yesterday? 16 MR. SEE: We covered them all. 17 MR. VICKERY: Ms. Barth handed me Number 29, 18 and she was asked if she could be fair and she said, 19 "I will try." 20 MR. SEE: We were also going to bring her up 21 because she cares for her mother, I think. 22 THE COURT: Okay. We might as well bring her 23 up now. 24 THE CLERK: Juror Number 29. 25 THE COURT: Ma'am, I think you indicated on PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 45 1 your questionnaire yesterday that you care for your 2 mother or something? 3 JUROR 29: Yes, I do. 4 THE COURT: Is this trial going to pose a 5 problem with that? 6 JUROR 29: Well, I already rescheduled her 7 doctors' appointments twice, and then I have another 8 one scheduled for the end of the month. And she was 9 ill last month, so I worry. 10 THE COURT: Would you be able to serve as a 11 juror in this trial? 12 JUROR 29: If it is for three or four weeks, it 13 bothers me. 14 THE COURT: Counsel, do you want to ask any 15 questions? 16 MR. SEE: I have no questions, Your Honor. 17 MR. VICKERY: No questions. 18 THE COURT: Thank you. 19 What do you want to do with 29? 20 MR. SEE: I have no problem letting her go. 21 MR. VICKERY: Me neither, Judge. 22 THE COURT: Okay. Twenty-nine is excused. 23 Bring up 41. 24 THE CLERK: Juror Number 41. 25 THE COURT: Yes, ma'am. I think you indicated PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 46 1 on your questionnaire that you filled out yesterday 2 that you thought you weren't sure, but you thought 3 maybe your mother had taken Prozac? 4 JUROR 41: Yeah, a couple years ago. 5 THE COURT: Are you sure or -- 6 JUROR 41: I'm not sure. She doesn't live 7 here. She lives on the Mainland. 8 THE COURT: So at this point do you have any 9 feeling one way or the other? 10 JUROR 41: Well, I -- 11 THE COURT: Well, you don't know whether or not 12 she -- 13 JUROR 41: I don't know any more. 14 THE COURT: You don't know whether or not she 15 was on Prozac? 16 JUROR 41: Right. Right. 17 MR. SEE: No questions, Your Honor. 18 MR. VICKERY: That was the only thing from her 19 questionnaire, Judge. 20 THE COURT: Any problem with 41? 21 MR. VICKERY: I don't see any bias there to 22 excuse her. When we have ample jurors, if it is a 23 discretionary cut there, I would say cut her free just 24 to avoid her of having any chance because there are 25 plenty of people. I wouldn't challenge for cause, but PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 47 1 I would like the Court to excuse her under 2 discretionary, to cut her free because we have plenty 3 of jurors. 4 MR. SEE: It is my view that there is nothing 5 here for a challenge to cause and if Mr. Vickery wants 6 to strike her as a peremptory, that's fine, but she 7 doesn't know that the mother took the drug. 8 THE COURT: Are we going to call 46 up, the man 9 on a trip or something? 10 MR. VICKERY: Let me get my list, Your Honor. 11 THE CLERK: Judge, I think we excused him 12 yesterday. 13 THE COURT: You're right. 14 How about 52, Oshiro? 15 THE CLERK: Number 52 is here. 16 THE COURT: What about 52? Do you want to 17 bring 52 up? 18 MR. VICKERY: Ms. Barth is getting my list, 19 Your Honor. 20 MR. SEE: I don't have any reason to bring him 21 up, I don't think so. 22 THE COURT: Well, she was one that you brought 23 up yesterday. 24 MR. SEE: I think it was Mr. Vickery who 25 brought her up. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 48 1 MR. VICKERY: Yes, we did, Your Honor. It's a 2 work-related question. I have to get the 3 questionnaire. I'm sorry, Judge. 4 THE COURT: I have all of mine here. 5 MR. VICKERY: Fifty-two, this is the gentleman 6 who supervises 25 offices. I think we may want to 7 talk to him this morning. Maybe you did not -- he's 8 Number 52. He wrote in response to his questionnaire 9 that it would be difficult for his job because he was 10 a supervisor. "I'm the only supervisor that 11 supervises 25 offices." That's why he said a three or 12 four-week trial would be difficult. 13 MR. SEE: They said 25 officers not offices. 14 He worked for the State Highway Department. 15 THE CLERK: Juror Number 52. 5-2. 16 THE COURT: Next one is 64, 77, and 82. 17 Mr. Oshiro, did you ask to be excused or are 18 you going to be able to serve? 19 JUROR 52: It is really demanding on my job. 20 If it was one week, that's fine, but three to four 21 weeks, it would be very difficult because I'm the only 22 supervisor over there right now. 23 THE COURT: Counsel have any questions? 24 MR. VICKERY: No. 25 MR. SEE: Mr. Oshiro, is there someone there PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 49 1 who can sort of take over as a deputy supervisor on a 2 temporary basis? 3 JUROR 52: No, because my other supervisor or 4 manager is with legislation right now. 5 THE COURT: Thank you. 6 MR. SEE: Thank you, sir. 7 THE COURT: Any problem excusing 52? 8 MR. SEE: Well, Your Honor, Mr. Oshiro works 9 for the State, and I think we've had several people 10 who said, yeah, it will be difficult on the job. I 11 guess, I would like to have the Court keep him. 12 THE COURT: Why don't we keep him for now and 13 if we have enough jurors at the end, let him go. 14 MR. SEE: Very good. 15 THE COURT: Sixty-four. 16 THE CLERK: Juror Number 64. 17 THE COURT: Are you able to serve on a jury or 18 is this going to be a hardship to you? 19 JUROR 64: It would be hard kind of. Grave 20 shift, it might be hard to stay up. 21 MR. SEE: You work at night then? 22 JUROR 64: Yeah, grave shift. 23 MR. SEE: So your problem is caring for your 24 daughter during the day? 25 JUROR 64: Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 50 1 MR. SEE: I see. 2 THE COURT: Any questions? Any questions, 3 Counsel? 4 MR. VICKERY: No, Your Honor. 5 MR. SEE: No, Your Honor. 6 THE COURT: Any problems excusing 64? 7 MR. SEE: No problem, Your Honor. 8 MR. VICKERY: None at all. 9 THE COURT: Why don't we keep him to the end 10 and see if we have enough. 11 Seventy-seven. 12 THE CLERK: Juror Number 77. 13 THE COURT: Yes, ma'am. Did you indicate that 14 you were going to have a difficult time serving? 15 JUROR 77: No, sir. 16 MR. VICKERY: That wasn't it at all, Your 17 Honor. We wanted to ask her to side bar because she 18 knows both Mr. Burke and Mr. Chang through her work. 19 JUROR 77: Actually, I did mention to, I 20 think -- can't think of her name. I made a mistake on 21 my form. I had mistaken Mr. Chang for Roy Hughes when 22 I was answering the questions in regards to doing 23 cases with insurance companies. 24 I do know Mr. Chang only through business on 25 some letters. I don't think we've actually had any PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 51 1 business together or Mr. Burke or -- the names are 2 familiar to me because of the line of work I've had. 3 THE COURT: You know Mr. Burke also? 4 JUROR 77: Only by name. Only through 5 business. 6 THE COURT: Would your knowing them cause you 7 to favor either side? 8 JUROR 77: No, sir, it would not. 9 THE COURT: Do you think you could be fair to 10 both sides? 11 JUROR 77: Yes, sir. 12 THE COURT: Any questions? 13 MR. VICKERY: You want me to ask it about her 14 work, she handles claims and adjusts claims for her 15 job, and I would be interested in knowing if that 16 would impact the case? 17 THE COURT: Handling claims? 18 MR. VICKERY: Right. She handles claims for 19 the State of Hawaii. 20 JUROR 77: It would not. They are usually 21 $10,000 and less and not in litigation. 22 THE COURT: Any other questions? 23 MR. SEE: No, Your Honor. 24 THE COURT: Thank you. 25 Number 82. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 52 1 THE CLERK: Juror Number 82. 2 THE COURT: Any problems with her? 3 MR. VICKERY: No, Your Honor. 4 MR. SEE: None. 5 THE COURT: You said you answered the question 6 yesterday to the effect that your parents own some 7 stock? 8 JUROR 82: Yes. 9 THE COURT: They own stock in what company? 10 JUROR 82: America. 11 THE COURT: America. You don't know -- they 12 don't own any Eli Lilly? 13 JUROR 82: I think they did own Eli Lilly 14 before. 15 THE COURT: But not now? 16 JUROR 82: Not now. 17 THE COURT: Any other questions? 18 MR. SEE: No, Your Honor. 19 MR. VICKERY: No, Your Honor. 20 THE COURT: Thank you. 21 Number 7. 22 THE CLERK: Juror Number 7. 23 THE COURT: Any problems with him? 24 MR. VICKERY: No, Your Honor. 25 MR. SEE: No, Your Honor. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 53 1 THE COURT: I think after this we should take a 2 mid-morning break. 3 MR. VICKERY: Okay. 4 THE COURT: Yes, ma'am. What was the issue 5 with her? 6 MR. VICKERY: Are you on Prozac? 7 JUROR 07: Um-hum. I wanted to correct that. 8 I counted back and it was only four years. I had put 9 two, but I didn't remember yesterday it is actually 10 four years. I had put two down on the questionnaire. 11 THE COURT: You've been on Prozac? 12 JUROR 07: Yeah. 13 MR. VICKERY: I guess it goes without saying, 14 you've had a good experience, since you've been on it 15 for four years? 16 JUROR 07: Yes, it changed my life. I don't 17 think I would have the job I have or husband I have 18 now. 19 MR. VICKERY: Because of that. And you 20 understand my clients are saying that it caused their 21 father to kill their mother -- 22 JUROR 07: Right, I heard that. 23 MR. VICKERY: -- and then himself? Would you 24 be able to lay aside your own positive experience? 25 JUROR 07: I think I could because I haven't PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 54 1 heard any evidence. If I heard evidence, I probably 2 could. It works for me. It doesn't mean that it 3 works for everybody. My doctor told me it would help 4 me. It doesn't mean their doctor told them that. 5 That's why I didn't mention it except in the 6 declaration. I don't believe anything any more unless 7 I see it or somebody tells me. Things happen, you 8 know. I don't know. I don't know. I think I could 9 be fair that's why I didn't go up their earlier. 10 MR. VICKERY: No other questions. 11 MR. SEE: No questions, Your Honor. 12 THE COURT: Thank you. 13 MR. SEE: Thank you. 14 THE COURT: Any problems with Number 7? 15 MR. SEE: None. 16 MR. VICKERY: Well, that presents an 17 interesting question. She said -- 18 THE COURT: It's an interesting question. It 19 doesn't sound like cause. 20 MR. VICKERY: I think you're right. 21 THE COURT: Okay. I think we've covered 22 everyone now. 23 MR. SEE: I just want to look real quick here. 24 MR. VICKERY: I had two others. One here. Let 25 me just look. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 55 1 Your Honor, I have two other jurors. One who 2 has a job problem and one has extremely strong 3 attitudes about verdicts, and I don't know if you want 4 to bring either of them up now. They are both matters 5 that have to be handled at side bar instead of in 6 front of the others. 7 MR. SEE: I have three in that category as 8 well. 9 THE COURT: Pardon me? 10 MR. SEE: They have strong opinions. 11 THE COURT: I thought we went through all these 12 yesterday. You didn't give me those names. 13 MR. VICKERY: The only ones I went through 14 yesterday are ones that were apparent from the face of 15 the questionnaire that there was a basis for challenge 16 of cause. There were some in the questionnaire that 17 gives rise for further questioning and until we know 18 answers to that -- 19 THE COURT: Let's bring them up here after the 20 break. 21 (Whereupon, the following proceedings were had 22 in open court.) 23 THE COURT: Okay. We have been going for quite 24 a while. Let's take a break for 15 minutes. Please 25 be back at ten after eleven. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 56 1 THE CLERK: All rise. Court is in recess. 2 (Whereupon, a recess was taken at 10:55 a.m.) 3 THE COURT: At this time, the Court is going to 4 excuse the following jurors and please report to Room 5 C267. That's where you were yesterday. Room C267. 6 Number 3, Mr. Behnke; Number 4, Bennett; Number 5, 7 Burdick; Number 6, Cabanero; Number 10, Ching; Number 8 11, Davis; Number 12, Deluna; Number 16, Felix; Number 9 19, Gilroy; Number 26, Hillison; Number 29, Imai; 10 Number 31, Kane; Number 34, Kawahara; Number 35, 11 Kawelo; Number 36, Keliinui; Number 38, King; Number 12 39, Leong; Number 46, Miyasato; Number 48, Nagai; 13 Number 49, Ng; Number 53, Oshiro; Number 56, Powell; 14 Number 66, Supapo; Number 71, Testa; Number 72, 15 Thomas; Number 76, Truesdell; Number 78, Yamaguchi; 16 Number 80, Yano; Number 81, Yokoi. You may leave now. 17 I know some of those people were excused yesterday. 18 You may leave now, and please report to Room C267. 19 MR. VICKERY: Your Honor, there's a problem I 20 see I need to tell you about. There are -- 21 THE COURT: Before they leave? 22 MR. VICKERY: Yes, sir. 23 THE COURT: Just a minute, please. Please come 24 back. 25 MR. VICKERY: Your Honor, you said -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 57 1 THE COURT: Well, let's come up to side bar. 2 (Whereupon, the following proceedings were had 3 at side bar.) 4 MR. VICKERY: There were two Mr. Oshiros. The 5 Court just excused Number 53, that you did yesterday, 6 and Number 52 was the man that was here this morning 7 and you said that you would excuse him at the end, and 8 I was -- let me see. That was my mistake. 9 THE COURT: So there is no -- 10 MR. VICKERY: You excused 53 yesterday. 11 (Whereupon, the following proceedings were had 12 in open court.) 13 THE COURT: There was no mistake, so you may 14 all leave. Thank you. 15 I want to ask whether any of you have heard or 16 whether you know anything about this case other than 17 what you read in the questionnaire yesterday and what 18 you heard this morning in court? Any of you know 19 anything about the case? Just give me your juror 20 number. 21 JUROR 79: Juror Number 79. 22 THE COURT: That's all I want is your number at 23 this point. Thank you. That's all I want at this 24 point. We'll call you up. 25 JUROR 09: Juror Number 9. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 58 1 THE COURT: Nine. 2 JUROR 82: Number 82. 3 THE COURT: 82. 4 JUROR 14: 14. 5 THE COURT: I'm sorry? 6 JUROR 14: 14. 7 THE COURT: 14. 8 Anybody else know or hear anything about the 9 case? 10 JUROR 08: Number 6. 11 THE COURT: Six, thank you. 12 JUROR 08: I'm sorry, Number 8. 13 THE COURT: What's your name? 14 JUROR 08: Chandra. 15 THE COURT: Okay. That sounds good. 16 Anyone else? 17 JUROR 44: I believe I'm 42, Mendes. 44, 18 sorry. 19 THE COURT: 44, Kathleen Mendes? 20 JUROR 44: Correct. 21 THE COURT: Thank you. I think we better meet 22 at side bar again. 23 (Whereupon, the following proceedings were had 24 at side bar.) 25 THE CLERK: Juror Number 79. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 59 1 THE COURT: Yes, sir. What do you know about 2 the case? 3 JUROR 79: Actually, I don't know about the 4 case, but earlier when you asked if I knew any jurors, 5 you didn't ask if I knew any of the attorneys. 6 THE COURT: Pardon me? 7 JUROR 79: I know someone who's on the defense 8 side. 9 THE COURT: I'm getting to that question. I 10 haven't asked that yet. Who do you know? 11 JUROR 79: Catherine Itai. 12 MR. SEE: She's not an attorney, Your Honor. 13 She's a company representative. 14 JUROR 79: I just wanted to mention it to you. 15 THE COURT: How long have you known her? 16 JUROR 79: We were classmates in elementary and 17 high school. 18 THE COURT: And when did you graduate from high 19 school? 20 JUROR 79: 1980. 21 THE COURT: Have you seen her since then? 22 JUROR 79: Yes. 23 THE COURT: Regularly? 24 JUROR 79: No, bumped into each other. 25 THE COURT: Would the fact that she is an PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 60 1 assistant for the defense -- is that right? 2 MR. BURKE: She's a Lilly representative for 3 trial. 4 THE COURT: Pardon me? 5 MR. BURKE: She's the Lilly representative at 6 trial. 7 THE COURT: Would the fact that you know her 8 cause you to take sides with either side? 9 JUROR 79: It may. 10 THE COURT: Why would that be? 11 JUROR 79: Well, I think it would make me feel 12 uneasy if I had to decide against her. I guess, on a 13 personal basis, I think in the back of my mind. 14 THE COURT: It's a pretty big company. 15 JUROR 79: I guess I've known her for a while. 16 It might make a difference in my decision or not. 17 THE COURT: Would you rather not serve as a 18 juror? 19 JUROR 79: Probably. 20 THE COURT: Counsel have any questions? 21 MR. VICKERY: No, Your Honor. 22 MR. SEE: No questions, Your Honor. 23 THE COURT: Thank you. 24 What do you want to do with him? 25 MR. SEE: I don't have any problem letting him PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 61 1 go. 2 MR. VICKERY: Me neither. 3 THE COURT: Well, let's hold him until the end. 4 Number 9. 5 THE CLERK: Juror Number 9. 6 JUROR 09: I'm not sure if it is a pertinent 7 fact, I read the news release, but it is the 8 information that you provided earlier today. The same 9 information. 10 THE COURT: You read the Star Bulletin last 11 night? 12 JUROR 09: Yeah, but I wasn't sure. 13 THE COURT: Does counsel have any questions? 14 MR. VICKERY: None, Your Honor. 15 MR. SEE: None, Your Honor. 16 THE COURT: Thank you. 17 Eighty-two. 18 THE CLERK: Juror Number 82. 19 THE COURT: Any problems with Number 9? 20 MR. SEE: None. 21 MR. VICKERY: No. 22 THE COURT: Yes, sir. 23 JUROR 82: It was on the news yesterday on 24 KITV. 25 THE COURT: Did you see anything different than PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 62 1 what I read to you in court? 2 JUROR 82: Basically what you said. 3 THE COURT: Same thing? 4 JUROR 82: Yeah. 5 THE COURT: Any questions? 6 MR. VICKERY: None, Your Honor. 7 MR. SEE: No. 8 THE COURT: Number 14. 9 Any problem with 82? 10 MR. SEE: No. Based on that, no. 11 MR. VICKERY: No, Your Honor. 12 THE COURT: Yes, ma'am. You said you heard 13 something? 14 JUROR 14: This morning on the radio. 15 THE COURT: Pardon me? 16 JUROR 14: There was something on the radio 17 this morning. 18 THE COURT: Was it any different than what I 19 read to you in court? 20 JUROR 14: I think they said something about 21 Maui. They made a comment about people from Maui or 22 something like that. I don't exactly remember. 23 THE COURT: I think the Plaintiffs are from 24 Maui. Other than that, anything else? 25 JUROR 14: No, nothing specifically. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 63 1 THE COURT: Counsel have any questions? 2 MR. VICKERY: No, Your Honor. 3 MR. SEE: I don't, Your Honor. 4 THE COURT: Number 8. 5 THE CLERK: Juror Number 8. 6 THE COURT: Any problems with 14? 7 MR. SEE: None. 8 MR. VICKERY: No, Your Honor. 9 THE COURT: Yes, sir. What do you know about 10 the case? 11 JUROR 08: Last night in the Star Bulletin 12 there was a small article. It was the same thing that 13 you said this morning. That's all. 14 THE COURT: Any questions on that? 15 MR. VICKERY: I have a question from his 16 questionnaire, Your Honor, if you want to do it while 17 we're here? 18 THE COURT: Mr. See, do you have any questions? 19 MR. SEE: I did not on the article, Your Honor. 20 MR. VICKERY: Mr. Chandra, in your 21 questionnaire you said you thought juries awarded too 22 much money. 23 JUROR 08: Yeah. 24 MR. VICKERY: And then you also said -- that 25 may have been your only comment, and I wanted to ask PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 64 1 you about that feeling. How strong is that feeling 2 and what's that feeling based on? 3 JUROR 08: Just some new companies go bankrupt 4 like that. A new company like -- I don't know, like 5 the companies go bankrupt because of the trial. 6 MR. VICKERY: Is that something that would 7 affect your ability to listen to evidence in this 8 case? 9 JUROR 08: No, it would not. It was for more 10 money. 11 MR. VICKERY: Do you commence the case with 12 preconceived notions of what is reasonable in money? 13 Is there some ceiling or artificial or arbitrary 14 ceiling in your mind? 15 JUROR 08: Yes, I do think so because some 16 people cannot make that much money, the amount of 17 money all their life, simple people, and that presents 18 a problem. I don't know how to tell you it easy. 19 MR. VICKERY: And does that extend to the 20 concept of punitive damages as well, would you have a 21 hard time awarding damages to punish a corporation who 22 has done wrong? 23 JUROR 08: If they done wrong, should be 24 related percentage, should be a reasonable amount. 25 Like me, you know, I am having a hard so far in my PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 65 1 life and if they award me, you know, I think it is 2 because I sometimes down there. I don't think -- I 3 mean, I would not want millions in my life, less than. 4 MR. VICKERY: Is the bottom line that you would 5 base a monetary award on your own pre-existing 6 feelings rather than the evidence, is that sort of the 7 bottom line of it all? 8 JUROR 08: The important thing is I don't know 9 how to measure it. Like if he take care of his life 10 and without this, being involved in some misfortune, 11 like that. If it was a reasonable amount, I guess. 12 MR. VICKERY: Thank you for sharing that with 13 us. 14 THE COURT: I'm not sure I understood. You 15 wouldn't award damages according to what you feel is 16 justified based on the evidence you hear? 17 JUROR 08: Yeah, I would have a hard time with 18 that just based upon the evidence. 19 THE COURT: What are you going to award it on 20 besides evidence? 21 JUROR 08: Pardon me? 22 THE COURT: What would you look at besides the 23 evidence? 24 JUROR 08: I would try to see how much the 25 parties sustained damages and if somebody is hurting PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 66 1 or some party is suffering, how much money he would 2 need to continue his life after being hurt. 3 THE COURT: Are you saying that you would base 4 your award on damages on the evidence you hear, is 5 that what you're saying? 6 JUROR 08: Just on the evidence? 7 THE COURT: Yeah. 8 JUROR 08: I cannot say too much. I don't 9 know. Where it is excessive, I think it is excessive. 10 THE COURT: Well, what's excessive? 11 JUROR 08: Excessive is like for me to 12 actually -- there's one thing on that, company went 13 bankrupt, otherwise good corporation, successful, and 14 they felt that it was liability and award normal ten 15 million. Well, I never need ten million dollars, and 16 even if I needed it, sometimes they would award 50 17 million dollars, and I don't need that. 18 MR. SEE: May I ask one, Your Honor? 19 Mr. Chandra, during the trial of this case the 20 Plaintiff would put on evidence of damages and 21 evidence of how much the damages should be. 22 JUROR 08: Um-hum. 23 MR. SEE: And the real question is, can you sit 24 and listen to that evidence -- 25 JUROR 08: Oh, yeah. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 67 1 MR. SEE: -- and base your decision upon how 2 much the Plaintiff should be awarded if they prove 3 their case based upon the evidence that is shown to 4 you in the trial? 5 JUROR 08: If they can prove damages is severe 6 trauma, they sustained too much trauma. If I lose my 7 arm and leg, of course, they can do that. That, of 8 course. 9 MR. SEE: So if the Plaintiff is able to prove 10 with evidence about what the amount of damages ought 11 to be, would you be able to consider that and award 12 them fair and full damages? 13 JUROR 08: Of course. I have no problem with 14 that, yeah. 15 MR. VICKERY: Well, if I may follow-up on that. 16 There's going to be a loss of love and affection 17 claim, how much that is. In other words, nobody is 18 going to say loss of love and affection should be X 19 dollars per month. It is something that the jury is 20 going to have to decide based on their own experience 21 and how they weigh that evidence. 22 And I think what I'm hearing you say is you 23 would have a hard time doing that because of your 24 feelings because people get too much money in lawsuits 25 and that there is some amount of money that you just PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 68 1 couldn't award regardless because they couldn't make 2 that much? Am I hearing that wrong? 3 JUROR 08: When it is for love and affection, I 4 don't know. If it is presented, I don't know how to 5 represent it. I mean, a loss of love and affection 6 probably a lot of money, but if it is presented 7 convincing to me, of course, I could. I don't know. 8 For me, these two things are very important, love and 9 affection. 10 MR. VICKERY: How about money just to punish 11 people? You said you wouldn't bankrupt them. Would 12 you award money to punish them if you thought they did 13 wrong? 14 JUROR 08: Punish a company because they did 15 something wrong? 16 MR. VICKERY: Yes, sir. 17 JUROR 08: Yeah, that would be hard for me to 18 just punish a company, but again, you know. 19 THE COURT: We have what we call punitive 20 damages, and if the party does something that is 21 outrageous, then there will an instruction. Do you 22 feel that if the party did something outrageous, along 23 those lines, then you can award damages to punish 24 them? We call them exemplary damages for doing 25 something that was outrageous. Could you -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 69 1 JUROR 08: No limit on that, it is just any 2 number? 3 THE COURT: Yeah. It could be low, it could be 4 high, however you feel outrageous it was. 5 JUROR 08: Yeah, that would be hard. If it is 6 reasonable. If it is a reasonable amount. 7 THE COURT: Yeah, it would be based on the 8 evidence. 9 JUROR 08: Yeah. 10 THE COURT: Do you think you could do that? 11 JUROR 08: If it is convincing evidence, then, 12 of course, it would be hard in my mind. If it is 13 convincing, then -- the evidence, if I can be 14 convinced, yeah. 15 THE COURT: Thank you. 16 MR. SEE: Thank you, sir. 17 THE COURT: Any problem with Number 8? 18 MR. VICKERY: I move to strike Number 8. I 19 think he has said, not merely in his words, but in his 20 demeanor, that he would have a very difficult time 21 awarding damages. 22 THE COURT: What do you mean in his demeanor? 23 MR. VICKERY: All I'm trying to put on the 24 record is that the Court has the best opportunity to 25 observe the man's demeanor, but on his demeanor as he PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 70 1 looked you in your eyes and said it is my judgment to 2 make, I didn't get the feeling that that man could lay 3 aside the intangible elements of damages or punitive 4 damages, but that he would base it on the pre-existing 5 bias and he has some artificial ceiling and I think 6 those are things which disqualify him. 7 MR. SEE: I didn't hear that, Your Honor. 8 THE COURT: I didn't hear that either. 9 MR. SEE: He said love and affection he valued 10 very highly, and he seemed to be a very forthcoming 11 and candid and honest man. 12 THE COURT: I didn't see anything in his 13 demeanor that would -- said he wouldn't be able to 14 award damages. You specifically asked him would you 15 be able to award damages based on the evidence and he 16 said he could. I'm not going to strike him for cause. 17 MR. VICKERY: Okay. 18 THE COURT: Juror Number 44. 19 THE CLERK: Juror Number 44. 20 THE COURT: You said -- what did you hear? 21 JUROR 44: Actually, I saw something on TV and 22 on the news, but I actually came forward -- I probably 23 should have come forward earlier. I was involved in a 24 lawsuit. 25 THE COURT: Pardon me? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 71 1 JUROR 44: I'd forgotten about a class-action 2 suit. I was involved in a lawsuit. 3 THE COURT: Would that affect your being a fair 4 and impartial juror? 5 JUROR 44: I'm not really sure. 6 THE COURT: Pardon me? 7 JUROR 44: I'm not really sure I could. 8 THE COURT: Do you feel you could not be fair? 9 JUROR 44: I would certainly try to be. 10 THE COURT: Why or who do you have a concern 11 about? 12 JUROR 44: Probably the pharmaceutical company. 13 THE COURT: Why? 14 JUROR 44: Because of the class-action suit I 15 was involved with. 16 THE COURT: Do you feel all pharmaceutical 17 companies are bad or -- 18 JUROR 44: No, I don't think they are bad, 19 but -- 20 THE COURT: You filled out the questionnaire -- 21 JUROR 44: But it doesn't ask anything about 22 that. Personally, you know, I'm angered, so I would 23 try to be fair. I feel like I'm fair. 24 THE COURT: Pardon me? 25 JUROR 44: I am a fair person. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 72 1 THE COURT: Do you think you could keep an open 2 mind -- 3 JUROR 44: Yes. 4 THE COURT: -- and base your decision on what 5 the evidence is, what the evidence is in the trial? 6 JUROR 44: Yes, sir. 7 THE COURT: I want you to be candid and I 8 appreciate you coming up. 9 Counsel, any questions? 10 MR. VICKERY: None, Your Honor. 11 MR. SEE: Ma'am, the real question is, and both 12 of the parties along with the Court do appreciate your 13 candor and understand that these are difficult 14 questions sometimes, but what we're really after is 15 does each side start off at the same place or because 16 of your own experience and your own involvement in the 17 litigation, would you think maybe you would be biased 18 a little bit against the drug company starting out? 19 JUROR 44: No, not really. I don't think so. 20 MR. SEE: Okay. I wonder if I could ask you 21 one more question. In your questionnaire you 22 indicated you believe in natural treatment for 23 illness. 24 JUROR 44: I do. 25 MR. SEE: Does that cause you to not believe in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 73 1 the use of prescription drugs or treating -- 2 JUROR 44: No, that's my own personal opinion 3 because a lot of people would need the drugs, I'm 4 sure, because they don't know how to use any other 5 method. I have friends and family that have used 6 prescription drugs and I support their decision in 7 doing that. 8 MR. SEE: I was asking about your own personal 9 use. You don't use prescription drugs yourself? 10 JUROR 44: No. 11 MR. SEE: This case involves the use of a 12 prescription drug. You've chosen not to use them, and 13 I was asking why is that? 14 JUROR 44: I think they are harmful. There are 15 so much to be learned about. You know, I just feel, 16 you know, lots of times people are guinea pigs. 17 MR. SEE: Now, having those views and your own 18 personal views, do you think those might color the way 19 you look at the evidence, particularly the evidence of 20 the pharmaceutical company? 21 JUROR 44: Because I also feel that people make 22 their own choices, no. No. 23 MR. SEE: We're trying to get at the choice to 24 take a drug, someone else would take or not take. 25 JUROR 44: Yeah. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 74 1 MR. SEE: Because you think that drugs are 2 harmful, might that color the way you would look at 3 the drug that was issued in this case? 4 JUROR 44: Because I think they are harmful? I 5 think they are also beneficial for a lot of people. 6 I'm sure I would use them if I were in a situation 7 where I wasn't getting anywhere with my natural stuff. 8 So I think I could definitely enter into this case 9 with a unbiased opinion. 10 MR. SEE: Okay. Now, you are still involved in 11 the class action with Dow. 12 JUROR 44: I think it is about wrapped up. 13 MR. SEE: And how did that come out as far as 14 you were concerned? The result, were you satisfied 15 with it? Are you not satisfied with it? 16 JUROR 44: I'm not really satisfied with it. 17 No. 18 MR. SEE: Has your experience in that 19 litigation caused you to think or look at, in general, 20 pharmaceutical companies in a negative way? 21 JUROR 44: No. I just feel I personally wasn't 22 compensated to the degree I probably should have been. 23 MR. SEE: You indicated in your questionnaire 24 that perhaps you thought your nephew had taken Prozac. 25 JUROR 44: Yeah, I'm not sure about that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 75 1 MR. SEE: Is that still the case, you're not 2 sure or not? 3 JUROR 44: Yeah, I'm not sure, but I've heard 4 him mention Prozac before. He knows about it. 5 MR. SEE: What has that experience caused you 6 to think about Prozac as you stand here today? 7 JUROR 44: He hasn't had any bad experience 8 with it. It's helped him, if he did take Prozac. 9 Whatever he was taking, it did. 10 MR. SEE: I understand. 11 JUROR 44: And he definitely benefited -- 12 THE COURT: Okay. 13 JUROR 44: -- from whatever antidepressant he 14 was taking. 15 MR. SEE: All right. Thank you very much, 16 ma'am. 17 THE COURT: Any problems with 32? 18 MR. SEE: Well, we move to strike that 19 witness -- that juror, Your Honor. She said several 20 things as questioning went on, one of which was she 21 was not sure she could be fair and impartial. At one 22 time she said she would not be fair to a 23 pharmaceutical company. Your Honor, I think the 24 subject matter in this litigation is an emotional 25 question for her because of present involvement in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 76 1 litigation, and because of that, I do believe that 2 considering all of her responses, plus what I 3 interpreted, anyway, to be a somewhat emotional 4 circumstance about the issue that this lady would not 5 be in the position to give a true, fair hearing to my 6 client. 7 THE COURT: Mr. Vickery. 8 MR. VICKERY: I don't think her answers were 9 any different from Number 8, Mr. Chandra, that we just 10 moved to strike, and the Court denied our motion. She 11 said essentially the same thing he did. She has some 12 pre-existing feelings and assured the Court and 13 counsel that she would base it on the evidence. 14 MR. SEE: The difference would be that she said 15 drugs are harmful. 16 THE COURT: But she also said they are 17 beneficial to people. 18 MR. SEE: She did. 19 THE COURT: And I got the complete picture that 20 she was very candid. She's not satisfied with the 21 class action results, but she feels that she could 22 keep an open mind. She doesn't believe that her 23 personal thoughts would color the evidence as it comes 24 in. She was not even sure that her nephew took Prozac 25 and had bad experiences. So I'm not going to strike PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 77 1 her for cause. On the other hand, if you want to 2 strike both her and Number 8, we can do that. 3 MR. VICKERY: I would agree to that. 4 MR. SEE: I just don't think the two jurors are 5 like -- hold on. 6 I wouldn't want to be in the position of horse 7 trading. 8 THE COURT: Well, you each have an additional 9 peremptory challenge. You don't want to do it? 10 MR. SEE: No, sir. 11 THE COURT: Okay. Okay. Thank you. 12 Definitely said she could be fair and keep an open 13 mind. 14 Okay. Let's proceed. I'm going to be asking 15 you to introduce yourselves and the like. 16 MR. SEE: Your Honor, if I could ask a point of 17 procedure based on the questionnaires, there are a 18 couple of jurors who I believe need to have inquiry 19 about their feeling on Prozac. Would we be taking 20 those up after the 18 get seated? 21 THE COURT: No, we take them up before. You 22 have more about Prozac? 23 MR. SEE: Yes, sir. 24 THE COURT: I thought we went through those 25 yesterday. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 78 1 MR. SEE: Well, again, they fall in the 2 category of jurors who were -- where inquiry is 3 probably necessary. 4 THE COURT: All right. We better do it now. 5 MR. SEE: I guess there are two in that 6 category. 7 THE COURT: All right. 8 MR. SEE: One is 58 and 68. 9 THE COURT: Pardon me? 10 MR. SEE: Fifty-eight and sixty-eight. 11 THE COURT: Let's bring up 58. 12 THE CLERK: Juror Number 58. 5-8. 13 THE COURT: Mr. See wanted to ask you a 14 question. 15 MR. SEE: Yes. You indicated in Question 52 of 16 your questionnaire that you had heard that Prozac was 17 a drug that people get addicted to. Could you tell us 18 where you heard that and what you think about that? 19 JUROR 58: It is like a class of drugs that are 20 easily prescribed for other things like Ibuprofen. 21 THE COURT: I'm sorry, I can't hear. 22 JUROR 58: It seems like to me it is a class of 23 drugs that are easily prescribed to the general 24 population. I don't know. It is just kind of my 25 attitude of drugs in general, that some drugs are just PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 79 1 freely distributed. Ibuprofen is one of them. 2 THE COURT: This is one prescribed through a 3 physician. 4 JUROR 58: I don't know. That's just the way 5 it is in my head. 6 MR. SEE: In Question 59 of the questionnaire, 7 you've indicated here that your view of medicine 8 should be avoided at all costs. 9 JUROR 58: Yes. 10 MR. SEE: That the only medicine you need is in 11 the food you eat and possibly some herbs. Is that 12 your viewpoint? 13 JUROR 58: Yes. 14 MR. SEE: This case is about Prozac, a 15 prescription drug. Is it your view that medicine 16 should be avoided at all cost, color or affect the way 17 you would be able to listen to the evidence in the 18 case? 19 JUROR 58: Probably not. 20 MR. SEE: You're saying that medicine should be 21 avoided at all cost. Do you feel that medicines are 22 harmful or bad in your view? 23 JUROR 58: I think they are for some people. 24 They'e attempted to help everybody. I think they 25 cover up symptoms and then by using medicines, you are PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 80 1 hiding the symptoms as opposed to treating the 2 illnesses. 3 MR. SEE: And the real question we have is 4 based upon your belief, that way about how you believe 5 about prescription drugs, do you think that might 6 affect your ability to serve as a juror in this case 7 and listen to the evidence as it comes in? 8 JUROR 58: No, I don't think so. I think it is 9 an interplay between patient and the doctor and 10 advertising and everything that people are made -- 11 people are like forced on this information from 12 newspapers and stuff, and that's how they interact 13 with society by going to the doctor and dealing with 14 their illnesses in that respect. 15 MR. SEE: And so has that caused you to have a 16 negative opinion about prescription drugs and 17 pharmaceutical companies? 18 JUROR 58: For myself, I have a negative 19 opinion about drugs, taking drugs, but I guess they 20 serve a purpose in society. 21 MR. SEE: And is that because you personally 22 believe that drugs are harmful? 23 JUROR 58: I personally believe that you 24 shouldn't use them, I mean, but there does seem to be 25 a place for them in society, yeah. I don't believe PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 81 1 that you should avoid them at all cost and try to find 2 an alternative, you know, alternative solutions to 3 your problems. Just because the doctor says, you 4 know, you should take this drug because I think that's 5 best for you, I mean, I think you need to reach deeper 6 down to find out what's wrong with you, the problems 7 you have, and not just take drugs because I don't 8 think -- all drugs are -- you cannot know for sure 9 what the quality impacts are of the drugs that you 10 take. 11 THE COURT: Thank you. 12 MR. SEE: I move to strike Mr. Pringle for 13 cause. 14 THE COURT: Why? 15 MR. SEE: Because he is clearly prejudicial 16 against the pharmaceutical company. He believes they 17 are harmful. He believes they should be avoided at 18 all costs. He believes they cover up symptoms, don't 19 cure you, but they cover up what's wrong with you. 20 THE COURT: Mr. Vickery. 21 MR. VICKERY: Heard no evidence at all that 22 would disqualify him from serving. He didn't even ask 23 him could he have a problem of laying aside those 24 feelings and rendering a decision based upon the 25 evidence. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 82 1 THE COURT: He actually asked him twice and he 2 answered both times that it would not affect his 3 viewing of the evidence, he could be a fair juror and 4 it would have no negative opinion, so I'm not going to 5 strike him for cause. 6 Number 68. 7 THE CLERK: Juror Number 68. 8 THE COURT: Yes, ma'am. I think Mr. See would 9 like to ask you a question. Is it Mrs. Takiguchi? 10 JUROR 68: Ms. Takiguchi. 11 MR. SEE: Ms. Takiguchi, in your questionnaire 12 you indicated that you had personal experience with 13 Prozac. 14 JUROR 68: No, not personal. 15 MR. SEE: Not taken it yourself, that you 16 observed other patients taking Prozac because you 17 indicated that, in your view, Prozac causes mood 18 swings. 19 JUROR 68: That I had heard. 20 MR. SEE: Causes mood swings, you heard that? 21 Where did you hear that? 22 JUROR 68: On the news. 23 THE COURT: I can't hear her. 24 JUROR 68: I'm sorry, on the news. It wasn't 25 personal. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 83 1 MR. SEE: And hearing that on the news, does 2 that give you the idea that Prozac might cause harm? 3 JUROR 68: Yeah, I would have to look in the 4 PDR. 5 THE COURT: In the what? 6 JUROR 68: In the PDR. In the Physicians Desk 7 Reference. 8 MR. SEE: Specifically, what you term caused 9 mood swings, meaning you could go off the deep end and 10 make irrational judgments? 11 JUROR 68: That's what you hear in the news. 12 MR. SEE: The question is, having heard that in 13 the news, does that color the way you feel about 14 Prozac? 15 JUROR 68: A little, but I'm open, you know 16 what I mean? 17 MR. SEE: Okay. Let me ask it this way: In 18 this case, both parties ought to start off even. Now 19 having heard that Prozac can cause mood swings and 20 could cause you to go off the deep end, would you 21 start out as a juror already thinking that and think 22 negatively about Prozac? 23 JUROR 68: I would still be open to listening 24 to all the evidence. 25 MR. SEE: I understand, and I appreciate that. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 84 1 THE COURT: Would you base your decision on the 2 evidence that came in? 3 JUROR 68: Right. 4 THE COURT: And not anything you heard on the 5 news? 6 JUROR 68: Right. 7 THE COURT: You would have an open mind? 8 JUROR 68: Right. 9 THE COURT: Thank you. Any other questions? 10 MR. SEE: No. 11 MR. VICKERY: No. 12 THE COURT: Any problems with 68? 13 MR. SEE: Well, again, I understand that the 14 witness said or the potential juror said that she 15 would have an open mind, but I did ask would it color 16 the view about Prozac, what you think about Prozac as 17 the trial started? And my recollection is she 18 answered in the affirmative to that, so I would move 19 to strike the juror for cause. 20 THE COURT: Well, I'm not going to strike her. 21 She said she would have an open mind and start off 22 even, and she would base her decisions solely on the 23 evidence as it comes in. 24 Now, did you have any others? 25 MR. VICKERY: Yes, I did, Your Honor. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 85 1 THE COURT: How many? I didn't realize that. 2 Go ahead. 3 MR. VICKERY: There's a man with a job 4 consideration, Number 15, Charlie Fair. He's 5 currently between jobs and starting dates cannot be 6 certain. He's unemployed and interviewing for a job. 7 I don't know if you want to talk to him about that. I 8 didn't know if you wanted to talk to him about that. 9 I don't know if that would create a hardship for him 10 or not. 11 THE COURT: Did he ask to be excused? 12 MR. VICKERY: There is no -- currently he's 13 between jobs interviewing and a starting date cannot 14 be certain. 15 THE COURT: Bring him up. 16 THE CLERK: Juror Number 15. 15. 17 THE COURT: I think in the questionnaire you 18 answered that you were between jobs or something? 19 JUROR 15: Yes, sir. 20 THE COURT: Is this going to be a financial 21 hardship if you serve on the jury? 22 JUROR 15: I had several interviews. I had one 23 this morning. 24 THE COURT: What? 25 JUROR 15: They want to ask when I can give PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 86 1 them a date and this is kind of keeping it in limbo, 2 and if it was a week period, it wouldn't be a problem, 3 but right now, we're not sure how long it's going to 4 last. 5 THE COURT: It's going to be three weeks or 6 more, three or four weeks. 7 JUROR 15: That could be difficult. 8 THE COURT: Counsel have any questions? 9 MR. SEE: Do you currently have a job for which 10 you're being paid? What's the situation on that? 11 JUROR 15: I've talked to three prospective 12 employees and right now I can't say. Tomorrow, next 13 week. 14 MR. SEE: Well, in a matter of four weeks from 15 now we'll be finished, but you really just need to 16 tell us what the real circumstance is, if it's going 17 to cause you a real hardship or if you are able to 18 serve? 19 THE COURT: We have jury pay. 20 JUROR 15: Yeah, but not much. 21 THE COURT: That's as much as a Federal judge 22 gets paid. 23 JUROR 15: It would cause some hardship, you 24 know, but I suppose I could bear it. 25 THE COURT: Thank you. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 87 1 MR. SEE: Thank you, sir. 2 THE COURT: What do you want to do with Number 3 15? 4 MR. VICKERY: I'll keep him. He said he would 5 serve. He will bear it. I'm willing to keep him 6 unless you are just inclined to cut him loose. 7 THE COURT: How about we keep him to the end 8 and then cut him, excuse me. 9 MR. SEE: I guess so, if he's willing to serve. 10 THE COURT: Anyone else? 11 MR. VICKERY: A man has a problem with his 12 memory. There's a question with that problem. 13 THE COURT: I've got the same problems. 14 MR. VICKERY: I wouldn't touch that with a 15 10-foot pole. 16 MR. SEE: Mr. Kim, he's 37, and he has a memory 17 problem. 18 THE COURT: Number 37? 19 MR. SEE: Yes. 20 THE COURT: Let's call him up. 21 THE CLERK: Juror Number 37. 22 THE COURT: You said you had a problem with 23 your memory. 24 JUROR 37: Well, if this case is going to last 25 three to four weeks, what you tell me the first week PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 88 1 I'll probably forget what I heard. 2 THE COURT: How old are you? 3 JUROR 37: Sixty-eight. 4 THE COURT: And what kind of memory problems do 5 you have? 6 JUROR 37: Well, like I just told you, if you 7 tell me something this month and a couple months 8 later, I don't know. I can't remember those things. 9 THE COURT: Are you retired now? 10 JUROR 37: Yes. 11 THE COURT: Counsel have any questions? 12 MR. VICKERY: No, Your Honor. 13 MR. SEE: None. 14 THE COURT: Thank you. 15 What's your pleasure? 16 MR. VICKERY: I go first so whatever I say, 17 it's bad for me, Judge. I guess I would ask him to be 18 excused. 19 MR. BURKE: You don't let them keep notes, I 20 guess. 21 THE COURT: Yeah, I do. 22 MR. VICKERY: Then keep him. That's fine. I 23 don't feel strongly about it. 24 MR. SEE: I don't feel strongly about it. 25 THE COURT: Okay. Anyone else? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 89 1 MR. VICKERY: We have 55 and 60. Fifty-five is 2 on Paxil. 3 THE COURT: Huh? 4 MR. VICKERY: She -- I think it's a her. She's 5 on Paxil, which is another drug like Prozac. 6 THE COURT: And what do you want to ask her? 7 MR. VICKERY: Same thing that we asked Number 8 7, whether her own experience on that class of drug is 9 something that she could lay aside and base the 10 verdict on the evidence. I would be happy to have the 11 Court ask her that. I don't have to ask her that. 12 THE COURT: Okay. 13 THE CLERK: Number 55. 14 THE COURT: You answered a question yesterday 15 in the questionnaire about the fact that you're taking 16 an antidepressant, Paxil. 17 JUROR 55: Right. 18 THE COURT: How long have you been on it? 19 JUROR 55: About six to eight months. 20 THE COURT: And do you think you could be a 21 fair and impartial juror even though you're taking 22 that? 23 JUROR 55: Yeah. 24 THE COURT: You could keep an open mind and it 25 won't influence your judgment -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 90 1 JUROR 55: No. 2 THE COURT: -- one way or the other? 3 JUROR 55: No. 4 THE COURT: Counsel have any questions? 5 MR. SEE: No, Your Honor. 6 MR. VICKERY: No. 7 THE COURT: Thank you. I forget the other one. 8 MR. VICKERY: Don't even bother. 9 THE COURT: Have we covered them all? 10 MR. VICKERY: Mr. See had a student. 11 MR. SEE: We missed Number 24 who said he was 12 employed part time, but when you go through the 13 questionnaire, he's clearly a student. 14 THE COURT: Let's bring him up, Number 24. 15 THE CLERK: Juror Number 24. 16 THE COURT: Are you a student, sir? 17 JUROR 24: Yes, I am. 18 THE COURT: Are you playing hooky? 19 JUROR 24: Unfortunately. 20 THE COURT: Where are you a student? 21 JUROR 24: Leeward. 22 THE COURT: Which? 23 JUROR 24: Leeward Community College. 24 THE COURT: You are a full-time student? 25 JUROR 24: Yes, I am. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 91 1 THE COURT: You go during the daytime? 2 JUROR 24: Yes. 3 THE COURT: Do you want to go, be excused? 4 JUROR 24: If I can, I would like to because 5 the trial is kind of long. 6 THE COURT: Any questions? 7 MR. VICKERY: No questions. 8 MR. SEE: No questions. 9 THE COURT: Any problems with excusing 24? 10 MR. VICKERY: No problems. 11 MR. SEE: No problems. 12 THE COURT: Okay. Twenty-four is excused. 13 Are we down to 51? 14 THE CLERK: Let's see. Correct. 15 THE COURT: Any other questions? 16 MR. VICKERY: No, sir. 17 THE COURT: Mr. See. 18 MR. SEE: I don't believe so. 19 THE COURT: Okay. 20 (Whereupon, the following proceedings were had 21 in open court.) 22 THE COURT: The Court is now going to ask the 23 counsel to introduce themselves and clients. 24 MR. VICKERY: Thank you, Your Honor. May it 25 please the Court, Aloha, ladies and gentlemen. My PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 92 1 name is Andy Vickery and I'm a lawyer from Houston, 2 Texas with a law firm called Vickery & Waldner. 3 I want to introduce my clients to you. Would 4 y'all stand up, please. This is Susan Forsyth and 5 Bill forsyth, Jr. Thanks. Have a seat. At counsel 6 table with me is Ms. Karen Barth from Baum Hedlund in 7 Los Angeles and Mr. Roy Chang from Shim & Chang here 8 in Honolulu. 9 Let me introduce the other folks who are with 10 us today. This is Mr. George Murgatroyd also from the 11 Baum Hedlund firm in Los Angeles. This distinguished 12 looking gentleman over there is Mr. Hewing. 13 Mr. Hewing is a lawyer who works with me in Houston, 14 and these two hard working ladies, if you all will 15 stand up. The blonde lady on the far side is Cindy 16 Paul and she is a paralegal with the Baum Hedlund firm 17 in Los Angeles, and Rhonda Hawkins is the other lady, 18 and she's been my paralegal for about 16 years now in 19 Houston, Texas. Thank you, Your Honor. 20 THE COURT: Thank you. Mr. See. 21 MR. SEE: Yes, sir. Thank you. Good afternoon 22 now. My name is Andy See. I am a lawyer from the law 23 firm of Shook Hardy & Bacon in Kansas City, Missouri. 24 I'm here for Eli Lilly and Company. With me here are 25 Patricia Aburano and Edmund Burke of the Burke Sakai PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 93 1 firm here in Honolulu and will be representing Eli 2 Lilly during the trial of the case. Mr. John Gillad 3 is also here helping us today. And seated down at the 4 end, last but not least, is Ms. Katherine Itai. 5 Ms. Itai is with Eli Lilly and Company here with us 6 and there will be a day or two when she can't be 7 present, but she's here on behalf of the company. 8 THE COURT: Now, I'd like to know whether any 9 of the prospective jurors know any of the people who 10 were just introduced? 11 (No response.) 12 THE COURT: And I should ask whether any of you 13 know myself, I am Alan Kay? 14 (No response.) 15 THE COURT: The Court will now ask counsel to 16 read off the list of their potential witnesses, who 17 they may be calling during the course of the trial. 18 Mr. Vickery. 19 MR. VICKERY: Thank you, Your Honor. This list 20 is comprehensive from both sides and they are in 21 alphabetical order. Don Aus, Mark Barrett, 22 Dr. Charles Beasley, Ann Blanchard, Dr. Robert Bost, 23 Dr. Robert Bourguignon, Dr. Thomas Brady, Dorothy 24 Bricker, James T. Burns, David Capelouto, Jack 25 Carpenter, Roberta Comstock, Gary Dickson, Bill PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 94 1 Dornblaser, Chauncey Dunn, Dr. Byron A. Eliashof, 2 Dr. Edwin Johnstone, Karen Forsyth, also known as Kim 3 Forsyth, that's Bill's wife, Susan K. Forsyth, William 4 David Forsyth, Junior, Bill, Judith Hawkes, 5 Dr. Richard Hawley, Dr. David Healy, Dr. Kathleen 6 Iannitello, Detective Dennis Kim from Maui, William 7 Klein, Amy Lee, Tom Lilledahl, Dr. Ron Maris, a 8 Dr. Daryl Matthews, Deborah Micalek, Dr. Robert 9 Moffat, Anita Mortel, Dr. Randolph Neal, Sky Nelson, 10 Rick Poole, Judge John Potter, Dr. Victor Reus, 11 Dr. Riggs Roberts, Ricky Ryan, Mary Sayler, Dr. Ron 12 Shlensky, Dr. Barry Silverman, Dorothy Smith, Dr. Paul 13 Stark, Celestine Starr, Kim Stovall, Dr. Kenneth 14 Tardiff, Dr. Leigh Thompson, Dr. Gary Tollefson, and 15 Dr. Joachim Wernicke. 16 THE COURT: And those were the witnesses for 17 both parties? 18 MR. VICKERY: They are from both parties, Your 19 Honor, and it is the comprehensive list of people that 20 might be called at trial by one or the other. 21 THE COURT: Do any of the prospective jurors 22 know any of those witnesses? If you would rise and 23 just let us know -- give us your number and which 24 witness you know. 25 JUROR 50: Janice Obara, 50. Say the person I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 95 1 know? Randolph Neal. He's a psychiatrist. 2 THE COURT: I'm sorry, which witness? 3 JUROR 50: Dr. Randolph Neal. 4 THE COURT: Thank you. Anybody else? 5 (No response.) 6 THE COURT: I've described the claims earlier 7 to you. Does anyone have such a strong feeling about 8 the nature of the case that might cause you to be 9 prejudiced for or against the Defendant or Plaintiff? 10 (No response.) 11 THE COURT: Have any of you had an experience 12 in your life which you think might influence you one 13 way or the other in connection with this case? 14 (No response.) 15 THE COURT: Do any of you have a religious or 16 philosophical or other type of belief that makes you 17 feel that you cannot be a fair and impartial juror in 18 this case? 19 (No response.) 20 THE COURT: Is there anyone who cannot accept 21 the law as I give it to you and disregard any idea you 22 have about what the law should be or ought to be? 23 (No response.) 24 THE COURT: Is there any reason why any one of 25 you could not sit as a fair and impartial juror in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 96 1 this trial? 2 (No response.) 3 THE COURT: Are any of you a member of the 4 Kumalani Chapel on Maui? 5 (No response.) 6 THE COURT: Has anyone had a dispute or a 7 problem with a manufacturer of a product? 8 (No response.) 9 THE COURT: Does anyone have any views or 10 opinions about the United States Food and Drug 11 Administration? 12 (No response.) 13 THE COURT: Have any of you ever used any Eli 14 Lilly and Company products? If you'd rise and give us 15 your number and name, please. 16 JUROR 07: Susan Carberry, Juror Number 7. 17 JUROR 50: Janice Obara, 50. 18 JUROR 15: Charlie Fair, 15. 19 THE COURT: Do each of you recognize that under 20 our system of justice the fact that a company has been 21 sued does not mean that the person suing is 22 necessarily entitled to recover? And is there anyone 23 who does not understand that the burden of proof in 24 this case is on the Plaintiffs; that is, the 25 Plaintiffs must first prove their claim by a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 97 1 preponderance of the evidence in order to recover? 2 (No response.) 3 THE COURT: Does anyone not recognize that 4 under our system of justice a Defendant, like Eli 5 Lilly and Company, has a right to defend itself 6 against lawsuits that it believes are unfair or 7 unjustified? 8 (No response.) 9 THE COURT: Is there any member of the jury 10 panel who is a member of a tort reform group? 11 (No response.) 12 THE COURT: Bill and Susan Forsyth are going to 13 be asking you at the end of this case to award 14 reasonable damages for the loss of their father and 15 mother. Included in those losses under Hawaii law are 16 the loss of society, loss of companionship, loss of 17 comfort, loss of attention, or advice or counsel or 18 parental care and guidance that occurred as a result 19 of their parents deaths. The law permits recovery for 20 these intangible elements of damage and gives you the 21 discretion to determine the amount. 22 Is there anyone here who cannot follow this law 23 and who cannot award money damages for intangible 24 items such as these? 25 (No response.) PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 98 1 THE COURT: The law allows full monetary 2 compensation, no more and no less. Is there anyone on 3 the jury panel who has some artificial floor or 4 ceiling in their mind about damages? 5 (No response.) 6 THE COURT: Can anyone not award full 7 reasonable damages if you find the Defendant liable 8 under the law? 9 (No response.) 10 THE COURT: The Court will meet with counsel at 11 side bar. 12 (Whereupon, the following proceedings were had 13 at side bar.) 14 THE COURT: I guess first we better pull up 15 Number 50. 16 THE CLERK: Juror Number 50, please come to the 17 side bar. 18 THE COURT: Yes, ma'am. I think you mentioned 19 that you -- 20 JUROR 50: My husband was treated by Randolph 21 Neal. My husband was treated for anxiety about 20 22 years ago by Dr. Neal. 23 THE COURT: Randolph Neal? 24 JUROR 50: Yes. 25 THE COURT: Treated for what? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 99 1 JUROR 50: Anxiety and stress. It was because 2 of the birth of our son. 3 MR. VICKERY: That's stressful. 4 JUROR 50: He couldn't drive me to the hospital 5 or drive me home. I had to drive. 6 THE COURT: Had any grandchildren yet? 7 JUROR 50: My son is just 20 years old and we 8 did see him for family counseling when my son was 9 five. He had a fall in the playground and we thought 10 his dizziness might be attributed to something else, 11 but we found out that he had a middle ear infection 12 and that's why. And Dr. Neal said there was nothing 13 wrong with him. He was fine. And about three months 14 ago, I saw Dr. Neal for some stress-related problems, 15 but no medication. 16 THE COURT: For yourself? 17 JUROR 50: Yes, I saw him for two visits and 18 that's it. 19 THE COURT: Pardon me? 20 JUROR 50: I saw him for about two or three 21 visits and that was it. Maybe about eight months ago. 22 THE COURT: Now, did you tend -- because of the 23 stress relationship, would you tend to give his 24 testimony more weight than that of other witnesses? 25 JUROR 50: No. I'm a nurse. It would just PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 100 1 depend on what the evidence is presented. I would 2 determine on that, and as far as the products of Eli 3 Lilly, I give out a variety of medications for 4 different drug companies, so that's my exposure to 5 that. 6 THE COURT: Counsel any questions? 7 MR. VICKERY: I don't. 8 MR. SEE: Based upon you giving medications 9 made by Eli Lilly in your profession, is there 10 anything about that experience that causes you to be 11 biased for or against Lilly? 12 JUROR 50: No. 13 MR. SEE: Okay. 14 JUROR 50: I wouldn't be able to tell you the 15 brand names that are associated with the different 16 companies. There are so many that we use. 17 THE COURT: Any questions? 18 MR. VICKERY: No, Your Honor. 19 THE COURT: Thank you. 20 MR. SEE: Thank you. 21 THE COURT: Any problems with Number 50? 22 MR. SEE: None. 23 MR. VICKERY: No, sir. 24 THE COURT: All right. Number 7. 25 THE CLERK: Juror Number 7. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 101 1 THE COURT: I think we've already asked you -- 2 JUROR 07: I know. 3 THE COURT: You've been using Prozac? 4 JUROR 07: I have an open mind to any evidence. 5 THE COURT: Any questions? 6 MR. SEE: No. 7 MR. VICKERY: No. 8 THE COURT: Thank you. 9 Number 15. 10 THE CLERK: Number 15. 15. 11 THE COURT: Yes, sir. I think you said you 12 knew somebody on the witness list? 13 JUROR 15: Yes. In 1984 I was doing a physical 14 when I had a mitral valve prolapse and they thought 15 that I had -- I needed this drug, I forget the name of 16 it, but it was by Eli Lilly, but after six months use, 17 they felt that I didn't need a use for it. It was 18 discontinued for my use anyway. 19 THE COURT: What was it? 20 THE WITNESS: Mitral valve prolapse, which is 21 basically a heart murmur. 22 THE COURT: Any questions by counsel? 23 MR. VICKERY: No, sir. 24 MR. SEE: Would anything about the use of that 25 particular product cause you to be biased for or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 102 1 against Eli Lilly? 2 JUROR 15: No. Actually, what they decided, 3 because I didn't have all the normal symptoms, there 4 was no need for it. 5 MR. SEE: Thank you very much. 6 THE COURT: Thank you. 7 Any problems with 15? 8 MR. SEE: None. 9 MR. VICKERY: No, sir. 10 THE COURT: Any other questions you want to ask 11 on this? 12 MR. SEE: Your Honor, I would like to have one 13 and really it's a follow up among the Court's 14 questions to the panelists, which is would you be able 15 to return damages, fair damages in the event that 16 their case was proven, I would request that the Court 17 ask if you found that the Plaintiffs -- 18 THE COURT: Pardon me? 19 MR. SEE: If the jury finds if there is 20 evidence that the Plaintiffs are damaged, but that Eli 21 Lilly and Company is not responsible for that damage, 22 would you be able to come back and return a verdict 23 for Lilly and basically send the Plaintiffs away empty 24 handed? 25 THE COURT: If the jury finds that the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 103 1 Plaintiffs had been damaged, but the Defendant Lilly 2 is not responsible for that damage, would you be able 3 to return a verdict in favor of Defendants? 4 MR. SEE: Yes. 5 THE COURT: Any problem with that? 6 MR. VICKERY: Yes, and I'll tell you the 7 problem. In the verdict form submitted by both 8 counsel, all the damage findings are predicated on the 9 finding of liability, so they will never answer -- the 10 eventuality he wants you to ask about, will never 11 happen. They won't be called upon to answer about a 12 damage question. 13 THE COURT: Are you able to find that the 14 Defendants are not liable? 15 MR. SEE: This really goes to the sympathy 16 question, that these two people have been damaged and 17 you set aside your sympathy and the evidence shows 18 that Lilly is not responsible, can you return a 19 defense verdict? 20 THE COURT: Well, what I'm proposing, if the 21 jury finds that the Plaintiffs are damaged, but the 22 Defendants are not responsible for that damage, would 23 you be able to find the Defendants not liable? 24 MR. VICKERY: I have no problem with that. 25 MR. SEE: That's fine. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 104 1 THE COURT: So that is all the questions that 2 the Court is going to ask. Either counsel wish to 3 conduct any limited voir dire? 4 MR. VICKERY: No, sir. 5 MR. BURKE: What time would you put on that? 6 THE COURT: Thirty seconds. First thing I 7 asked you, what do you want to ask them that the Court 8 hasn't already asked. 9 MR. SEE: Yeah. 10 THE COURT: I'm sure they want lunch. 11 MR. SEE: Are you going to tell them that there 12 may be objections to evidence and lawyers do make 13 objections. 14 THE COURT: That's part of the preliminary jury 15 instructions. That's covered in that. 16 MR. SEE: Another one would be trying to get a 17 fair jury. If each juror was my client, would they 18 want themselves to serve on the jury and pass judgment 19 on my client. 20 MR. VICKERY: Well, the problem with that is 21 even in a final argument, that's inappropriate because 22 it's the golden rule marking, you can't ask the juror 23 to put themselves in the shoes of either party. 24 That's an objection. 25 THE COURT: I don't think that was the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 105 1 question. What the question was -- 2 MR. VICKERY: I thought he said would each 3 juror, if they put themselves in the position of 4 Lilly -- 5 MR. SEE: No. No, they all know what their own 6 state of mind is. 7 THE COURT: If you were the party to this 8 lawsuit, would you be satisfied with someone like 9 yourself serving on the jury? 10 MR. VICKERY: Sure. 11 THE COURT: Is that your question? 12 MR. SEE: It is. 13 MR. VICKERY: No problem. 14 THE COURT: So with that, I take it neither of 15 you want to ask any -- conduct any limited voir dire? 16 MR. VICKERY: No, Your Honor. 17 THE COURT: Okay. And then I'm going to 18 dismiss 52, 64, and 15. 19 MR. VICKERY: All right. 20 THE COURT: And then we'll go into the 21 selection of the panel and instructions. Actually, I 22 think we may be running short on time. You wanted 23 some time, too. Mr. See wanted some time. 24 MR. SEE: Five or ten minutes. 25 THE CLERK: Ask them if they want to go to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 106 1 lunch and come back or if they want to go through? 2 THE COURT: Ask who? 3 THE CLERK: The jury. 4 THE COURT: What if half say yes and half say 5 no? 6 MR. VICKERY: I've got an idea. Why don't we 7 widdle them down to 18 and everybody can go but those 8 18 and give us the lunch hour to confer and he has 9 time to talk to his folks. 10 THE COURT: Why don't we do that? 11 MR. SEE: That sounds reasonable. Eighteen. 12 THE CLERK: Sixteen in the box and two outside, 13 so they're going to know where they're sitting. I'm 14 going to tell them which seats because we're going to 15 write their names down, so we'll know. 16 THE COURT: Also, they promise they are not 17 going into additional causes if we release them, yeah. 18 MR. VICKERY: Fine. 19 MR. SEE: We're through with cause. 20 THE COURT: Each one is going to give their own 21 personal information, I think, because you had the 50 22 question questionnaire, you've got that already. 23 MR. SEE: I think so. 24 MR. VICKERY: Yes. 25 MR. SEE: I don't think they -- there will be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 107 1 cause challenges because of that. 2 THE COURT: Okay. I'll hold you to that. We 3 had 28 and 30 this morning and we didn't ever agree 4 yesterday on 28 and 30. 5 THE CLERK: 28 and 30. 6 THE COURT: They never showed up today. I 7 thought everybody showed up. 8 THE CLERK: Not the ones excused yesterday. 9 They were excused yesterday so we don't bother with 10 them. 11 (Whereupon, the following proceedings were had 12 in open court.) 13 THE COURT: Okay. Two more questions. If the 14 jury finds that the Plaintiffs have been damaged, but 15 that Defendant Lilly is not responsible for that 16 damage, is there anyone -- would you be able to find 17 the Defendant not liable? Let me ask that again. 18 If the jury finds that the Plaintiffs have been 19 damaged, but that Defendant Lilly is not responsible 20 for that damage, is there anyone who would not be able 21 to find the Defendant not liable? 22 (No response.) 23 THE COURT: If you were a party to this 24 lawsuit, would you be satisfied with someone like 25 yourself serving on the jury? Is there anyone who PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 108 1 would not be satisfied with someone like yourself 2 serving on the jury? I'll ask that question again. 3 If you were a party to this lawsuit, is there 4 anyone who would not be satisfied with someone like 5 yourself serving on the jury? 6 (No response.) 7 THE COURT: Okay. At this time I'm going to 8 dismiss the following jurors: Number 15, Mr. Fair, 9 number 52, Mr. Oshiro, and number 64, Mr. Slade. You 10 may leave now and please report to Room 267. Room 11 C267. 12 And at this time, the Court is going to ask the 13 courtroom deputy to seat the required number of 14 jurors. 15 The Court is also going to excuse Number 79, 16 Mr. Yamamoto. Counsel in agreement with that? 17 MR. VICKERY: Yes, we are, Your Honor. 18 MR. SEE: Yes, Your Honor. 19 THE COURT: The Court will now direct the 20 courtroom deputy to seat the number of jurors. 21 THE CLERK: Yes, Your Honor. Juror Number One 22 Eden Aken. Ms. Aken, please take the first seat on 23 the top. Number 37, Andrew Kim. Number 32, Clarence 24 Kaohi. Number 27, Daniel Hong. Number 55, Toni 25 Pedro. Number 75, Kimberly Torres. Number 33, Melvin PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 109 1 Kato. Number 73, Wendell Toma. Number 45, Olita 2 Merseberg. Number 20, Donna Grain. Number 51, 3 Lawrence Okuda. Number 13, Derek Duncan. Number 7, 4 Susan Carberry. Number 70, Marvin Teruya. Number 2, 5 Robert Asari. Number 44, Kathleen Mendes. Number 43, 6 Glynn Mayeshiro. 7 No. No, not your clients -- right in the back 8 of your client. Mr. Oshiro, you need to sit in the 9 first seat in the middle aisle. And number 77, Julie 10 Ugalde. 11 Your Honor, 18 names were just drawn. 12 THE COURT: All right. It's 12:30 now, so I 13 think we better break for lunch and I'm going to 14 excuse all those of you who are not within the 18 that 15 have been selected. The 16 and the 2 that were just 16 sitting up there in the front, the rest of you are 17 excused. Please report to Room 267. 18 THE CLERK: All rise for the jury. You may 19 leave that. Thank you. 20 (Whereupon, the jury panel left the courtroom.) 21 THE COURT: Please be seated. I think we 22 better break for lunch and come back because we still 23 have to go through the peremptory challenges, so 24 please be back at 1:30. We'll start again at 1:30. 25 Again, there is the Federal cafeteria in the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 110 1 adjoining building and a number of other restaurants 2 in the vicinity. So please be back at 1:30. 3 THE CLERK: Court stands in recess. 4 (Whereupon, a lunch recess was taken at 5 12:38 p.m.) 6 THE COURT: The Court will pass the jury for 7 cause. Counsel in agreement with that? 8 MR. VICKERY: Yes, we are, Your Honor. 9 MR. SEE: Yes, Your Honor. 10 THE COURT: And we now will have the peremptory 11 challenges by the attorneys. This will be without 12 giving any reasons at all for their challenges, simply 13 at their own discretion, and this will take about 10 14 or 15 minutes. 15 I'll meet with counsel for a minute at side 16 bar. 17 (Whereupon, the following proceedings were had 18 at side bar.) 19 THE COURT: Ordinarily at this time we go 20 through this personal data questions, but I think with 21 your 50 questions in the questionnaire, you already 22 asked virtually all of these questions. 23 MR. SEE: I think so, too, Judge. 24 THE COURT: So we'll omit this. 25 MR. VICKERY: The information has been covered PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 111 1 clearly. The only thing is we haven't heard some of 2 them say anything. That would be the only thing. I 3 haven't heard them say anything. We don't have any 4 idea -- we really don't have any idea about them at 5 all because they haven't spoken, but the information 6 has been covered. 7 THE COURT: So if the information has been 8 covered, I don't see any reason to go through it 9 again. 10 MR. VICKERY: The only reason would be to get a 11 feel for the juror's personality as they speak. 12 THE COURT: Many of them you have seen at side 13 bar. 14 MR. SEE: Many of them, yes, sir. 15 THE COURT: And they answered questions at the 16 mic. Do you have any questions if we omit the 17 personal data questions? 18 MR. SEE: Can I just take a look at it, Your 19 Honor? 20 I think it would be helpful if the jurors -- if 21 we were permitted to see the jurors speak in a very 22 brief way. 23 THE COURT: All right. 24 (Whereupon, the following proceedings were had 25 in open court.) PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 112 1 THE COURT: You each have been given one of 2 these personal data sheets with eight questions. What 3 we would like is each one of you to stand and tell us 4 your number and name and then if you would answer each 5 of the eight questions. So we'll start with number 6 one, Ms. Aken. 7 JUROR 01: Eden Aken. I live in Pearl City and 8 I'm single. No children. My former occupation was a 9 medical receptionist. 10 THE COURT: Does that answer all the questions? 11 JUROR 01: I live with my best friend for ten 12 years and she drives for HandyVan. 13 THE COURT: Okay. Thank you. Number 37, 14 Mr. Kim. 15 JUROR 37: My name is Andrew Kim. I live in 16 Mililani Mauka. I've been a resident of the State for 17 69 years. I'm married. I've retired from dairy. I 18 worked for 30 years. My wife's name is Theresa and 19 she's a homemaker. I have three children, a daughter 20 and two sons. My daughter is a financial planner and 21 my son is a wholesale mortgager. And my youngest son 22 is a dentist. I retired eight years ago and my 23 children all live on their own. That's it. 24 THE COURT: Thank you. Number 32, Mr. Kaohi. 25 JUROR 32: My name is Clarence Kaohi. I live PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 113 1 on the Island of Kauai in Eleele. I've been a 2 resident of the State for 66 years. I'm married and 3 have three children, two boys and one girl. The boy 4 works for Young Brothers in Kauai, my daughter is a 5 children's teacher in Oregon, and the youngest one is 6 hired by Public Relations. My wife's name is Lillian. 7 I've been retired for four years. My wife has been 8 retired for four years. 9 THE COURT: Okay. Thank you. Number 27, 10 Mr. Hong. 11 JUROR 27: My name is Daniel Hong. I'm from 12 Kona on the Big Island. I've been a life-long 13 resident of this State, and I'm married. Right now 14 I'm retired. My wife's name is Chasuko (phonetically) 15 and she's a homemaker or retired or whichever way. 16 And we have two sons. They're in their forties, and 17 the oldest son is an auto technician and my number two 18 son is a chef in one of the hotels. Prior to my 19 retirement, I was doing food manufacturing consulting 20 work. There's no one that lives with us except my 21 wife and I. 22 THE COURT: Number 55, Ms. Pedro. 23 JUROR 55: My name is Toni Pedro. I was born 24 and raised in Kailua over here on this island, and I'm 25 single. No children. Live alone. And I'm a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 114 1 marketing assistant and a claims clerk for 2 insurance -- an insurance agency. 3 THE COURT: Thank you. Number 75, Ms. Torres. 4 JUROR 75: My name is Kim Torres. I was born 5 here. I'm single. I teach preschool. I have two 6 children. I have a son who's four and another son, 7 he's 22 months. And I live with my boyfriend. His 8 name is William Funn. He's a communication 9 technician. 10 THE COURT: Thank you. Number 33, Mr. Kato. 11 JUROR 33: My name is Melvin Kato. I am a 12 resident of Honolulu, and occupation is City and 13 County Refuge for 28 years. And not married. I live 14 with my brother Stanley. He's a Hawaiian Telephone 15 Company employee. 16 THE COURT: Thank you. Number 73, Mr. Toma. 17 JUROR 73: My name is Wendell Toma. I live on 18 the Big Island in Pahoa. I am single, and I work for 19 a carrier. I've been there for about six years. I'm 20 single. I don't have any children. And I have a 21 nephew that lives with me and his name is Brian Kaobu. 22 THE COURT: Thank you. Number 45, 23 Mrs. Merseberg. 24 JUROR 45: My name is Oleta Merseberg. I live 25 in Aiea. I've been a resident for 58 years. I'm PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 115 1 married. My husband's name is Valentine. I'm retired 2 now as of April of last year. I worked for the Navy 3 before that as a management foreman. Let's see. I 4 have three daughters, 33, 30, and 27, and all of them 5 are housewives. That's it. 6 THE COURT: Thank you. Number 20, Mrs. Grain. 7 JUROR 20: Yes. My name is Donna Lee Grain, 8 and I'm a resident of lower Manoa, Moiliili. I've 9 been a resident for about 65 years. My marital status 10 is widow. My occupation, I'm now retired, but I did 11 work for Dole Pineapple Company for 15 years and after 12 they closed their cannery, I went to work as a 13 caregiver for almost eight years. I have two 14 daughters, one -- the youngest one is 40 this year and 15 she works as an analyst for Land 'O Lakes in their 16 feed division. The older one is 47 and she was 17 director of sea pack consorting for Pacific Arts and 18 Cultures and then fundraisers for Salvation Army. And 19 then I've been retiring since Dole went out of 20 business here and I'm now, for almost the last year, 21 been living with my son -- son-in-law and my daughter 22 in lower Manoa. I've had some foot surgery and I have 23 stairs to climb, so I've been staying with them. It's 24 easier to get up the stairs. Thank you. 25 THE COURT: Thank you. Number 51, Mr. Okuda. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 116 1 JUROR 51: My name is Lawrence Okuda. I live 2 in Kaneohe on this island. I've been a resident of 3 this State for 58 years. I'm married. And my 4 occupation has been in the automobile repair and 5 insurance business for 42 years. Presently, I'm with 6 State Farm Insurance for 25 years as an auto damage 7 estimator, and presently right now I'm training all 8 the estimators for State Farm on this island and 9 outside islands. I'm married. My wife's name is 10 Caroline and she's retired. I have two children, 11 Colette is my oldest, she's 33 years old, and she's 12 the assistant manager for the Gucci store in Ala 13 Moana. My son is going to be 26 years old this year 14 and he's attending the John Burns School of Medicine 15 at the University of Hawaii. And I have no friend or 16 relative living with me presently. 17 THE COURT: Thank you. Number 13, Mr. Duncan. 18 JUROR 13: My name is Derek Duncan. I'm a 19 resident of Mililani, Honolulu. I've lived on this 20 island all my life. I'm 37 years old, married. My 21 occupation is a bus driver. I work for OTS. My 22 wife's name is Diana Duncan. She works for Servco 23 Hawaii. I have two boys, 13 and 8. 24 THE COURT: Thank you. Number 7, 25 Mrs. Carberry. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 117 1 JUROR 07: My name is Susan Carberry. I'm 2 number seven. I live in Kailua on this island. I've 3 been a resident for 46 years. I'm married. I'm a 4 publications specialist at Kamehameha schools. I've 5 been there for eight years. My husband is Fred 6 Carberry and he's an engineering student at University 7 of Hawaii. I have two daughters on the Mainland. My 8 22-year-old is a marketing specialist with Boston 9 Children in Denver, Colorado, and my 24-year-old is a 10 preschool teacher in Scottsdale. And we have no 11 friends or relatives living with us. 12 THE COURT: Thank you. Number 70, Mr. Teruya. 13 JUROR 70: My name is Marvin Teruya. I've 14 lived here for 40 years. I'm married. Occupation is 15 golf course superintendent for the past ten years. My 16 wife's name is Sherry, and she's a travel agent. I 17 have one six-year-old son. And I have no one else 18 living with us. 19 THE COURT: Thank you. Number 2, Mr. Asari. 20 JUROR 02: My name is Robert Asari. I was born 21 and raised in Hawaii for 70 years. I'm married. My 22 wife is also retired. I have two sons and a daughter, 23 42, 41, and 39 years old. I was previously employed 24 by a construction company for 12 years as an estimator 25 coordinator. And my wife and I are both living alone PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 118 1 in a big house. 2 THE COURT: Okay. Number 44, Ms. Mendes. 3 JUROR 44: I'm Kathleen Mendes. I've lived on 4 Molokai for 25 years, in Hawaii for 31 years. 5 Hoolehua is the town I live in. I'm married. I'm a 6 farmer. I have one child, 28. She's a student at the 7 University of Hawaii. My husband is an engineer with 8 the fire department, Hawaii County, and we live alone, 9 just us two. I think that's everything. 10 THE COURT: Thank you. Number 43, 11 Mr. Mayeshiro. 12 JUROR 43: My name is Glynn Mayeshiro. I've 13 lived in Pearl City my whole life. I'm single. I do 14 graphics for an engineering and architecture firm for 15 the past 12 years. And no kids. 16 THE COURT: Thank you. No. 77, Ms. Julie 17 Ugalde. 18 JUROR 77: My name is Julie Ugalde. I live in 19 Makakilo, Hawaii. I've lived here 28 years. I am 20 married. He works at The Honolulu Fire Department. 21 He's a batallion chief for the Leeward Coast. I have 22 two children, age 28. She's a registered nurse in 23 Michigan. She does hospice care. I have a daughter 24 23 who is a leasing agent for Marcus & Associates. I 25 don't have any other relatives living with me other PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 119 1 than my husband. 2 THE COURT: Thank you. I'll meet with counsel 3 again at side bar. 4 (Whereupon, the following proceedings were had 5 at side bar.) 6 THE COURT: Any other questions or challenges 7 for cause? 8 MR. SEE: No, Your Honor. 9 MR. VICKERY: No, Your Honor. 10 THE COURT: I'll pass the jury for cause and 11 we'll go ahead with peremptory challenges. 12 MR. SEE: Very good. 13 (Whereupon, the following proceedings were had 14 in open court.) 15 THE COURT: Counsel will make their peremptory 16 challenges now and that will take 10 or 15 minutes. 17 The Court will meet with Counsel at side bar. 18 (Whereupon, the following proceedings were had 19 at side bar.) 20 THE COURT: The Court will now ask counsel 21 whether they have any objection to the jury as 22 selected or as to the proceedings? 23 MR. VICKERY: The Plaintiffs have none, Your 24 Honor. 25 MR. SEE: No objection, Your Honor. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 120 1 THE COURT: Very well. 2 (Whereupon, the following proceedings were had 3 in open court.) 4 THE COURT: The Court will now read off the 5 list of jurors as selected. First will be number one, 6 Ms. Aken. Second will be Number 37, Mr. Kim. Third 7 juror will be Number 27, Mr. Hong. You need to move 8 over one. 9 Fourth juror will be Number 75, Ms. Torres, 10 fifth will be Number 33, Mr. Kato, six will be Number 11 73, Mr. Toma, seven will be Number 45, Mrs. Merseberg, 12 eight will be Number 20, Ms. Grain, number nine will 13 be Number 70, Mr. Teruya, 10 will be Number 2, 14 Mr. Asari, 11 will be Number 43, Mr. Mayeshiro, and 15 number 12 will be Number 77, Ms. Ugalde. You come on 16 up. 17 Nine is number 70, Mr. Teruya, and ten is 18 Number 2, Mr. Asari. 19 At this time, I'm going to excuse the rest of 20 you. Thank you very much for coming and please report 21 to Room C267. 22 The Court will now ask the deputy clerk to 23 administer the oath to the jury. 24 THE CLERK: Will the jury panel please rise and 25 raise your right hand? You and each of you do PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 121 1 solemnly swear that you will well and truly try this 2 cause wherein Susan K. Forsyth, et al., is Plaintiffs 3 and Eli Lilly and Company, Defendant, and a true 4 verdict render according to the law and the evidence, 5 so help you God. 6 THE JURY: I do. 7 THE CLERK: Thank you. Please be seated. 8 THE COURT: Okay. We're going to have some 9 other matters to take up tomorrow, so we're going to 10 start the trial on Friday at nine o'clock, and as I 11 mentioned to you, we will not have trial on Mondays 12 because the Court has other matters to hear on 13 Mondays. So the trial will go from Tuesday to Friday 14 each week. 15 But I do caution you not to discuss the case 16 with anyone, including your fellow jurors and members 17 of your family, and specifically do not read anything 18 in the newspapers or watch anything on TV or listen to 19 anything on the radio that may involve this case. 20 That's absolutely essential to the integrity of this 21 trial and to ensure that both parties have a fair 22 trial, so please do not read or listen or view 23 anything in the media that may involve this trial. I 24 will give you more preliminary jury instructions on 25 Friday morning. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 122 1 So at this point, I'm going to excuse you. 2 Again, we'll start at 9:00 a.m. this Friday, 3 March 5th. Have a nice day and we'll see you Friday 4 morning. 5 THE CLERK: All rise for the jury. 6 (Whereupon, the jury left the courtroom.) 7 THE CLERK: Please be seated. 8 THE COURT: First on the -- Lilly has filed a 9 motion for reconsideration of my order requiring Lilly 10 to produce Dr. Beasley, and I'm reading the memorandum 11 of both parties. I find that case law prevails over 12 common sense, and case law clearly provides that the 13 Court does not have power to order Lilly to bring 14 Dr. Beasley to this trial, notwithstanding the fact 15 that -- especially since he's not either an officer or 16 a director of Lilly. Secondly, on the objections to 17 the hundreds of exhibits, I'm still going through 18 those. 19 I'd like to meet with you at 1:30 tomorrow to 20 go over them finally. And I did want to have clear on 21 the record that the only ones that you -- that are 22 being contested are the ones that have been marked in 23 yellow; is that correct? 24 MR. SEE: That's correct, Your Honor. Based 25 upon what Your Honor asked us to do, we highlighted, I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 123 1 believe with Mr. Vickery's concurrence, the ones that 2 both sides would present to the Court that are up for 3 argument. 4 THE COURT: How is that going to be clear on 5 the record? Have you filed with the Court the ones 6 that have been highlighted in yellow? 7 MR. SEE: We have provided that to the Court. 8 THE COURT: I know you have provided us with 9 them. 10 MR. SEE: Yes. 11 THE COURT: But have they been filed? 12 MR. SEE: I think not. I think they've simply 13 been delivered. 14 THE COURT: I think you're going to have to 15 file a set with the Court so it's clear that if this 16 goes up on appeal, as to what the Court was asked to 17 review. 18 MR. SEE: We will do that, Your Honor. 19 THE COURT: Because there are others where you 20 have objections that have not been highlighted in 21 yellow. 22 MR. SEE: That's correct. 23 THE COURT: And those you're not asking the 24 Court to review? 25 MR. SEE: A good number of those, Your Honor, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 124 1 are objections that, while we may still feel are well 2 taken, they were covered by in-limine rulings, and 3 therefore, as we interpret it, they were ruled upon 4 and should not be brought up again. I mean, that's 5 why there were put on the exhibit list, so we're not 6 bringing them up again. 7 THE COURT: Well, I think practically all of 8 them were ruled on in the motions in limine, but 9 anyway, I understand that, but I do want you to file 10 the highlighted ones. 11 Also, my clerk informs me that you have not 12 filed a more complete set of preliminary jury 13 instructions, notwithstanding your representations 14 this morning. 15 MR. SEE: My memory is I delivered a set -- not 16 a complete set, but the ones that were fill in the 17 blanks, to your law clerk. If my memory is wrong, a 18 new complete set will be on file this afternoon and I 19 apologize. 20 THE COURT: I would like those brought to 21 chambers, too, because otherwise it may be a day or 22 two before I receive them. 23 MR. SEE: Yes, sir. 24 THE COURT: And I will need them. Anything 25 else? Pardon me? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 125 1 MR. SEE: I'm just going to clarify, a complete 2 set of all the preliminary instructions? 3 THE COURT: Right. 4 MR. SEE: Very well. 5 THE COURT: Initially, you did not have all of 6 the Ninth Circuit modeled jury instructions included. 7 MR. SEE: That's correct, Your Honor, and now 8 we do, and we'll get those to the Court's law clerk. 9 THE COURT: I take it basically that there's 10 only one modeled Ninth Circuit jury instruction that 11 requires any modification and you've provided me with 12 that, and, in fact, I read it this morning, I believe, 13 so I won't be reading it again, but the others I can 14 just simply read right out of the manual, if you're in 15 agreement that all of them should be given. 16 MR. SEE: We are. 17 MR. VICKERY: Yes, we are, Your Honor. 18 THE COURT: So we don't need another set then. 19 I'll just read them out of the manual. 20 Anything else we should take up at this time? 21 MR. SEE: Nothing, Your Honor. 22 MR. VICKERY: Nothing at this time, Your Honor. 23 THE COURT: Okay. We'll see you at 1:30 24 tomorrow afternoon. 25 THE CLERK: All rise. Court now stands in PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 126 1 recess. 2 (Whereupon, the proceedings were adjourned at 3 2:30 p.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 127 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 3, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: June 20, 1999. 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