2547 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 ) Pages 2,547 - 2,609 of the Estates of June M. ) 6 Forsyth and William D. ) Forsyth, and WILLIAM F. ) 7 FORSYTH, JR., ) ) 8 Plaintiffs, ) ) 9 vs. ) ) 10 ELI LILLY AND COMPANY, ) an Indiana corporation, ) 11 et al., ) ) 12 Defendants. ) __________________________) 13 14 TRANSCRIPT OF PROCEEDINGS 15 The above-entitled matter came on for hearing on 16 Monday, March 29, 1999 at 10:20 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 2548 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 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2549 1 THE CLERK: Civil No. 95-00185 ACK, Susan K. 2 Forsyth, et al. versus Eli Lilly and Company, et al. 3 MR. VICKERY: Good morning, Your Honor. Andy 4 Vickery, Karen Barth, and Roy Chang, all for the 5 Forsyths. 6 THE COURT: Good morning. 7 MR. SEE: Good morning, Your Honor. Andy See 8 and Michelle Mangrum for Eli Lilly and Company. 9 THE COURT: Good morning. Well, the Court's 10 been flooded with additional papers here. I haven't 11 had time to read through all of them, so we'll have to 12 meet again this afternoon. 13 We have, as I count, four matters to take up. 14 One is the jury instructions, which we will do now. 15 Second will be Lilly's motion to strike plaintiffs' 16 exhibits. I do want Lilly to consider whether it 17 really wants to pursue this motion and jeopardize a 18 potential verdict in its favor. 19 Third is defendant's motion for judgment as a 20 matter of law, and fourth is defendant's motion to 21 exclude from final argument certain matters which I 22 haven't read about. 23 Let's proceed with the jury instructions, and 24 first the Court will address plaintiffs' combined 25 comments. As far as Jury Instruction No. 215, the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2550 1 plaintiffs' request for deletion of Subparagraph D, 2 the Court's inclined to grant that, even though Lilly 3 had -- I mean, plaintiffs' had previously agreed to 4 it. The Court notes that in the -- that it's taken 5 from BAJI, California Jury Instructions 9.00.7, and 6 the comment to that instruction states, "It is to be 7 given on a California case that held that strict 8 liability for failure to warn could only apply if the 9 defendant knew or should have known of the particular 10 risk involved with the product manufactured, and that 11 state-of-the-art evidence was admissible on the 12 issue." 13 Hawaii Supreme Court, Johnson vs. 14 Raybestos-Manhattan held that in a strict products 15 liability action, state-of-the-art evidence is not 16 admissible for the purpose of the -- of establishing 17 whether the seller knew or reasonably should have 18 known of the dangerousness of his or her product. The 19 Hawaii Supreme Court did not explicitly rule on 20 whether this applies to a failure to warn strict 21 liability cause of action. The Ninth Circuit 22 subsequently determined that Hawaii court's would 23 apply this same rule in that context. 24 According to the Ninth Circuit, Hawaii law 25 mandates that, quote, Evidence as to the possible PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2551 1 extent of a defendant's knowledge concerning the 2 dangerousness of its own products is not admissible in 3 either consumer expectations or failure to warn cases. 4 Citing from In Re: Hawaii Federal Asbestos Cases. 5 Of course, plaintiffs still bear the burden of 6 proving that Prozac is dangerously defective, Prozac 7 causes akathisia, and that the Defendant Lilly failed 8 to warn of this risk. 9 And as to Jury Instruction 43 -- 10 MR. SEE: Your Honor, would you like me to -- 11 would you give me an opportunity to speak to that or 12 would you like me to wait to the end? 13 THE COURT: Go ahead. 14 MR. SEE: Your Honor, with respect to the law 15 both in Hawaii and California there is a special rule 16 for prescription drugs, and the special rule is set 17 out in Comment K to that Restatement Section 402A. 18 And it's specifically adopted by the Hawaii Supreme 19 Court in Larsen vs. Pacesetter at Page 1285. 20 Now, the Restatement Section 402A, which was 21 adopted by the Hawaii Supreme Court, which I have a 22 copy of and would be pleased to hand up to the Court, 23 the parties have stipulated that that applies to 24 Prozac because Prozac is a product, as a prescription 25 drug, that is uncapable of being made absolutely safe. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2552 1 So in other words, it is unavoidably unsafe, and with 2 respect to that kind of product, as specified in 3 Comment K, there is a special rule that if the 4 manufacturer provides adequate warning, and that is 5 specified in Comment J of the Restatement, of what 6 that ought to be, if a manufacturer provides adequate 7 warning of this risk or danger, then the product is 8 not defective. Special rule for prescription drugs. 9 Now, that rule is set out in Comment J, and 10 it's the classic language that a lot of Courts use. 11 It says the warning has to be given, and it's not the 12 subjective, what the manufacturer knew. It's not 13 that. That's negligence. It is a different standard. 14 It is an objective standard. It says, if he, the 15 manufacturer, has knowledge that's new, or by the 16 application of reasonable developed human skill and 17 foresight should have knowledge of the presence of the 18 danger. And I submit, Your Honor, that is exactly 19 what this Paragraph B in the instruction we're talking 20 about says. 21 And it is the law of the Carlin case in 22 California and, in fact, I've litigated these cases, I 23 don't know in how many states, and in every state in 24 which Comment K provides the law for this special rule 25 for prescription drugs, the standard is, if you give PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2553 1 an adequate warning of this inherent danger that's in 2 the drug, then the drug's not defective. And the 3 standard is what you knew or should have known in 4 light of the best developed scientific knowledge 5 existed at the time, and that is embodied in the 6 Court's instruction. It's embodied in the Restatement 7 of Torts. Literally it is in every case that I have 8 ever seen that talks about this special rule for 9 prescription dugs. It is the accepted standard. 10 In a case in which the defect is claimed to be 11 that you didn't have an adequate warning, that's the 12 standard. So I would just say, Your Honor, that that 13 same standard that is applicable, that comes directly 14 out of the Restatement, adopted by the Hawaii Supreme 15 Court in Larsen, that needs to be the instruction in 16 this case. 17 THE COURT: You say you have Larsen there? I 18 know I've looked at it in the past, but I guess we 19 keep going around and around so many times in this 20 case that I've lost track of it. 21 MR. SEE: I do have a copy of Larsen here, Your 22 Honor. And in the Larsen case, what was different 23 about it is the Court determined that Comment K did 24 not apply to that product. Where here, not only has 25 the evidence established it, but the parties have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2554 1 stipulated that Comment K does apply to the product. 2 THE COURT: You mean, have stipulated that it 3 was unavoidably unsafe? 4 MR. SEE: As specified in Restatement 402A, 5 Comment K. That's what the stipulation is. I can 6 just read it. It says, "We stipulate that Prozac is 7 a, quote, unavoidably unsafe, close quote, product as 8 that term is used in Comment K of Section 402A of the 9 Restatement 2nd of Torts." 10 So we, essentially, stipulated that that was 11 the law that applies to this product in this case, and 12 that law is, that if the warning is adequate, the 13 product's not defective and the test for adequacy of 14 warning, as set out right in the restatement, and in 15 every case -- I would hazard to say, I don't think 16 there are any that say any different -- that the 17 standard is, it's not subjective, it's not did you 18 know, it's by the developed scientific research and 19 all the knowledge available at the time, could you 20 have known? And that's what you have to warn about. 21 So I think the instruction in Paragraph B sets 22 forth that standard exactly, and that's the one that 23 ought to apply in this case. 24 THE COURT: Thank you. Mr. Vickery. 25 MR. VICKERY: Your Honor, Mr. See, with all do PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2555 1 respect, is mixing apples and oranges. There's a 2 reason why J comes before K in the alphabet and a 3 reason why Comment J comes before Comment K in the 4 Restatement, and it's simply this: If you think of 5 the separate theories of liability in products 6 liability law, there's a failure to warn theory. 7 Regardless of whether there's a design defect, 8 regardless of whether there's an implied warranty, 9 there's simply failure to warn. 10 In a marketing defect failure to warn case, 11 ordinarily under Comment J, you have to prove exactly 12 what Mr. See just said, and Section B would be 13 appropriate. However, that is altered in this case by 14 the stipulation that Prozac is unavoidably unsafe. 15 The unavoidably unsafe stipulation has nothing to do 16 with the traditional failure to warn theory. 17 What it has to do with is over here, the 18 implied warranty theory, and I'm glad he handed up 19 Larsen to you because they've contended that theory is 20 not viable under Hawaii law and if it hadn't been, the 21 plaintiffs in Larsen lose because their claim was 22 barred by statute of limitations with everything 23 except warranty, but whether it's implied warranty or 24 design defect theory, what Comment K says, and it does 25 apply to pharmaceuticals is, well, if a drug is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2556 1 unavoidably unsafe and if the manufacturer admits 2 that, and if the manufacturer gives a decent warning, 3 then they are not liable under the law. They're not 4 liable under the design defect theory. They're not 5 liable under the implied warranty theory, and so it is 6 the stipulation of the manufacturers that their drug 7 is unavoidably unsafe that moots this 215 Subparagraph 8 B. 9 The Court hit the analysis right on the head. 10 I'm, in fact, embarrassed you found this Ninth Circuit 11 case I didn't find, following up on the Johnson vs. 12 Raybestos, but in light of that stipulation, the focus 13 is not on what Lilly knew. They've admitted they knew 14 it was unavoidably unsafe. The focus is on what the 15 doctors did not know. 16 MR. SEE: Your Honor, if I may, may I hand a 17 copy of Section 402A up for the Court? I have 18 highlighted the last sentence in Comment K, which is 19 what the parties have stipulated applies to this case. 20 And if the Court will notice, that highlighted part 21 says, it talks about whether the seller of, like a 22 prescription drug, that has got some danger to it that 23 you can't get rid of, whether you're going to be 24 liable or not. 25 It says, "The seller of such products" -- again PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2557 1 with the qualification that they're properly prepared 2 and marketed -- "and proper warning is given, is not 3 to be held as strict liability for unfortunate 4 consequences attending their use merely because he has 5 undertaken to supply the public with an apparently 6 useful and desirable product," and here's the point, 7 "attended with a known, but apparently unreasonable 8 risk." That's the law. It's a law, with due respect 9 to Mr. Vickery, the cases -- Raybestos case that he's 10 citing are product liability cases that are not 11 covered by the special rule for prescription drugs in 12 Comment K. And the Hawaii Supreme Court has adopted 13 Comment K, and the parties have stipulated that 14 Comment K applies, and it is clear that the warning is 15 talking about a known but apparently reasonable risk. 16 That's what has to be warned about. 17 I might just add, the cases that talk about 18 this under logic, it is impossible with a prescription 19 drug, that society says, yes, this product has some 20 risk, but we're willing to accept that risk because 21 the product can do so much good, but you have to have 22 an appropriate warning. If you have one, then you 23 won't be liable. 24 It is impossible to warn of that which science 25 cannot know, and therefore, by logic the standard is, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2558 1 it's not just what you knew, it's what you knew or 2 what by the application of all the science that you're 3 held to know about, the best highest science in the 4 world, exactly what your instruction says, that you 5 have to warn of every risk that was revealed by that 6 science. And that's exactly what the instruction in 7 Paragraph B says. 8 MR. VICKERY: It is tempting to go last, but I 9 think the Court has analyzed the issue properly 10 already, Your Honor. 11 THE COURT: All right. I'll have to review 12 that further. 13 403, plaintiffs are willing to drop if the 14 Court drops Subparagraph B that we just discussed. 15 403? Well, I guess we'll have to wait on that one, 16 too. 17 Why is it that you want to drop that one, 18 Mr. Vickery? 19 MR. VICKERY: Well, it's Mr. See that wants to 20 drop it, Your Honor, and I've just agreed that if the 21 Court drops the previous paragraph about their 22 knowledge, that this is probably superfluous and I 23 agreed to take it out. 24 MR. SEE: And the reason that we suggested that 25 it be dropped, Your Honor, is because if you look, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2559 1 it's marketing defect, and number one, we submit 2 there's no such thing under Hawaii law as a marketing 3 defect. But if you look at the standard of what the 4 jury is being asked to consider, it's exactly the same 5 as the earlier instruction; that is, 215 because it 6 said our duty is to warn and instruct the prescribing 7 physician as to risks that were known or knowable in 8 light of the generally recognized and prevailing best 9 scientific and medical knowledge at the time. In 10 essence, it's the same standard and it just seemed 11 repetitive. 12 I believe it absolutely correctly submits the 13 law. There's no question about that, but it was 14 simply repetitive of 215. 15 THE COURT: The Court is inclined to agree with 16 that, but I will have to review the others. 17 MR. SEE: Yes, sir. If I could offer the Court 18 just one more reference. Mr. Vickery has cited the 19 case of Ontai vs. Straub Clinic, which is the Hawaii 20 Supreme Court in 1983, and the very quote that he 21 cites says, "The Courts have frequently ruled that a 22 manufacturer must give appropriate warning of any 23 known dangers." Again, they're talking about the same 24 standard. 25 THE COURT: Now, on No. 57, the presumption of PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2560 1 heeding the instruction, the Court has not finished 2 reading all of these references to the Hawaii Rules of 3 Evidence 301 F. 2nd. But it does appear that the 4 Thomas case cited by Lilly is distinguishable. In 5 Thomas the Court based its ruling on two grounds, 6 number one, that the Fifth Circuit concluded that 7 Mississippi courts would not recognize 402A Comment J 8 presumption. Secondly, the Fifth Circuit 9 distinguished between an unavoidable risk warning 10 which evidently involves the risk that a consumer 11 cannot avoid if he chooses to use the product, and a 12 preventable risk warning which involves risks that can 13 be avoided by using the product in a certain manner. 14 Although, the Thomas case seems to use their 15 examples in reverse order, in this case we have 16 concluded that Hawaii court's would apply 402A Comment 17 J presumption; whereas, the Thomas court concluded 18 that Mississippi would not apply the presumption, and 19 secondly, the warning distinctions discussed in the 20 Thomas case are not as readily applicable to the 21 instant case. Thomas involved the rare occurrence of 22 seizures when a patient took the drug Acutane; 23 however, here there is no indication that this rare, 24 but allegedly real risk -- with respect to Acutane, 25 there's no indication that this rare, but allegedly PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2561 1 real risk could have been avoided if the drug was 2 used. Conversely, Prozac is alleged to have caused 3 akathisia, but there have been suggestions that the 4 drug could safely be used, such as by giving a 5 concomitant sedative, keeping the patient hospitalized 6 or under close observation, warning family members, et 7 cetera. And the Court also cites the Garside vs. Osco 8 Drug case. 9 Again, I haven't finished reading all of the 10 commentary to the Hawaii rules of evidence. Mr. See. 11 MR. SEE: Your Honor, our real point about 12 this, whether a heeding presumption exists is number 13 one, heeding presumptions in states that adopt them, 14 are adopted because there's an absence of evidence. 15 That there's a reason to do it, a need to do it. 16 In this case we have already had testimony from 17 both of the prescribing physicians in the case. We 18 know exactly what they would or would not have done 19 based upon the questions put to them on the stand. So 20 we have all of the evidence that there is, that there 21 ever could be on that issue. 22 THE COURT: Well, I'm not that persuaded by the 23 evidence, that it was as conclusive as you would 24 assert. 25 MR. SEE: No, I don't suggest that the jury can PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2562 1 only decide one way on the evidence. I suggest that 2 perhaps a jury issue is created, but the point is with 3 respect to the instruction -- 4 THE COURT: It's for the jury to determine 5 whether the presumptions been rebutted. 6 MR. SEE: I believe that the simple nature of 7 the testimony -- if more testimony could have been 8 adduced, it would have been. The simple nature that 9 we have all of the testimony that the plaintiffs could 10 adduce from the very people who made the decision 11 means, number one, that there's no need for a 12 presumption, and if there is a presumption, it 13 vanishes. There's nothing to presume because we know 14 everything we're ever going to know about that issue 15 because each of those decisionmakers has spoken and 16 could have been asked anything and everything that the 17 plaintiff desired to put before them. 18 THE COURT: Thank you. Mr. Vickery. 19 MR. VICKERY: Your Honor, I would only say that 20 I think that once the Court looks at Rules 301 to 304 21 in the Hawaii Rules of Evidence, and particularly to 22 the official commentary to those rules, that the issue 23 will be absolutely crystal clear in your mind. Under 24 Rule 303 they adopt what's called the fair view or 25 bursting bubble view that Mr. See espouses. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2563 1 THE COURT: Well, what they do is they lay 2 out -- apparently, lay out a lot of different rules. 3 MR. VICKERY: Right. 4 THE COURT: Without every time saying which 5 ones they adopt. 6 MR. VICKERY: Well, what they give us, Your 7 Honor, is a way to decide which one they adopt, and 8 it's true that both of the rules, 303 and 304, have 9 non-exhaustive or non-comprehensive lists of the type 10 of presumptions that fall into either the bursting 11 bubble or the shifting of the burden of proof 12 category, but the litmus test, if you will, for which 13 one the Comment J heeding presumption falls in or any 14 other one that's not listed in the rules, the litmus 15 test is is the presumption something that's done to 16 foster an overriding social policy. 17 In fact, the official comment to Rule 302 says 18 is the presumption done to give a boost, if you will, 19 to the plaintiff in the case and it's very, very clear 20 from all of the Hawaii Supreme Court cases from Stuart 21 up through Leong vs. Sears and Roebuck, which I cite, 22 that the policies undergirding Hawaii's strict 23 products liability law, are to, indeed, to relieve the 24 plaintiff of traditional burden. 25 So I'm confident when you look at the comments, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2564 1 you'll conclude that if faced with this issue, a 2 Hawaii State Court would find the Comment J heeding 3 presumption to be a Rule 304 shifting of the burden of 4 proof. 5 THE COURT: It would be easier for the Court, 6 Mr. Vickery, if when you cite a case for a 7 proposition, you give the page number of the case. 8 That's pretty fundamental law school. 9 MR. VICKERY: I know it is, Your Honor, and we 10 typically do that. The reason we didn't do it in 11 Leong, is the whole case -- it's not that long of a 12 case, and the whole case talks about the underlying 13 social policies, and so we typically try to do that 14 and take the Court right to that page. And 15 specifically, Ms. Barth and I talked about that last 16 night and I said, why don't we give a jump site to it 17 and she said, look, the whole case discusses it, and 18 that's the reason we didn't give a page cite. 19 THE COURT: Well, again, the Court hasn't read 20 and studied the commentaries to the Hawaii Rules of 21 Evidence 301 through 304 in this particular -- with 22 respect to this particular issue, so I'm going to have 23 to hold on that, too. 24 Now, we have two negligent instructions, 612 25 and 713. There are negligence claims that were pled. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2565 1 It would seem to the Court that really both of them 2 should be given, and that perhaps 114 should be 3 modified, that's the first special instruction, by 4 adding a sentence or modifying the first paragraph to 5 read, plaintiff -- "Plaintiffs assert claims of strict 6 liability and breach of implied warranty. The 7 essential elements of these claims, which are based 8 upon an alleged defect and failure to warn, are:" And 9 that would be the first paragraph. 10 MR. VICKERY: Plaintiffs would agree to that 11 change, Your Honor. 12 MR. SEE: The problem I have about that, Your 13 Honor, is this: It gives the jury, these lay people, 14 terms that they don't know what they mean and are not 15 defined. 16 THE COURT: I thought your concern about 612 17 and 713 was that they might be confused with 114? 18 MR. SEE: My only thought about it is the same 19 thought that I had basically for Instruction 43, that, 20 essentially, I don't think -- I think it correctly 21 submits the law, but I also think it's repetitious. I 22 have no problem with it being given. I don't think 23 it's harmful. I think it absolutely correctly states 24 the law. 25 My problem with the Court's suggested PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2566 1 modification of Instruction 114 is it puts the term 2 strict liability before the jury. They have no idea 3 what that means. It's not defined. So I would submit 4 that it is inherently a legal term, that it should not 5 be submitted to a jury. Just like the term breach of 6 implied warranty. Again, another term that's not 7 defined. The jury has no idea what that means either. 8 It simply permits argument about what strict liability 9 means. Does that mean liability all the time, the 10 plaintiff always wins, the defendant always loses. 11 So I would respectfully request that the Court 12 not modify 114 in that way. I think 114 was set out 13 in a way to define those terms that needed definition 14 and avoid legal jargon which would let the jury 15 speculate. 16 THE COURT: All right. The Court agrees with 17 you and the Court will give 114 as-is, and 612 and 713 18 as-is. 19 Now, 816 the Court tends to agree with 20 Mr. Vickery as to adding a sentence or maybe more than 21 one cause of an injury at the end of that instruction. 22 MR. SEE: If the Court wanted to give just the 23 sentence -- what was the one sentence? There may be 24 more than one cause of an injury? 25 THE COURT: Yes. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2567 1 MR. SEE: If the Court were inclined to make a 2 modification, that's the modification that I would 3 submit is the most appropriate. 4 THE COURT: Okay. That's the modification the 5 Court will make. 6 And then 1019, the first request for 7 Mr. Vickery is to delete it and the alternative 8 request is to make changes by deleting the word 9 proximate. 10 MR. SEE: If it would make it easier, Your 11 Honor, I would agree to delete the word proximate. 12 THE COURT: And that's what the Court felt and 13 also adding the word foreseeable. Of course, this is 14 the paragraph -- I mean, this is another one that you 15 both agreed to before, as I recall. 16 MR. SEE: Could I speak to that last part, Your 17 Honor? 18 THE COURT: Which last part? 19 MR. SEE: The part you said by adding 20 foreseeable in again. 21 THE COURT: Unforeseeable. 22 MR. SEE: Oh, unforeseeable, sorry. Yes. 23 Adding unforeseeable again. Instruction 1019 has two 24 parts, one is a definition part. That's the first 25 paragraph, and it already has the term unforeseeable PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2568 1 in it in the definition. 2 THE COURT: I'm sorry, what are you referring 3 to now? 4 MR. SEE: The first paragraph of Instruction 5 1019. It is -- that is the part that defines what an 6 intervening and superseding cause is, and in the 7 fourth line it already contains the term 8 unforeseeable, so that term is in the definition. The 9 second paragraph is simply the operative paragraph. 10 THE COURT: Right. Well, as far as the -- I 11 agree with you on the first paragraph. The second 12 paragraph I find totally confusing. I don't know how 13 either of you expect a jury to make any sense out of 14 that. 15 MR. VICKERY: Why don't we just delete the 16 second paragraph in its entirety then, Your Honor. 17 MR. SEE: There's no operative part of the 18 instruction then. 19 THE COURT: Pardon me? 20 MR. SEE: That takes the operative part of the 21 instruction away if you just delete it. 22 THE COURT: Well, you set out the law for the 23 jury to follow in the first paragraph, and you argue 24 the second paragraph as to where it applies. 25 MR. VICKERY: Exactly. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2569 1 THE COURT: But the way this reads -- also, I 2 would think you would want to assert that not only was 3 William Forsyth the superseding cause, but prescribing 4 doctors were a superseding cause. 5 MR. SEE: That would not be my argument. 6 THE COURT: But I find the second paragraph 7 as-is very confusing. 8 MR. SEE: Well, if the word proximate is 9 deleted, as I think the Court said it was going to 10 do -- 11 THE COURT: The way I have the paragraph -- the 12 first paragraph reading now is, "An intervening and 13 superseding cause is one that interrupts or breaks the 14 sequence of events between a defendant's act and a 15 plaintiff's injury. A party acting independently in a 16 manner unforeseeable to the defendant will break the 17 causal connection between defendant's act and 18 plaintiff's injury if that party's act is the sole 19 cause of the injury." 20 Is that paragraph acceptable to both sides? 21 MR. VICKERY: Yes, it is, Your Honor. I think 22 that's perfect and it's clear, and particularly if you 23 delete the second part, he can argue his case without 24 it in any way being jeopardized and it doesn't confuse 25 the jury. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2570 1 MR. SEE: The reading of the first paragraph is 2 agreeable. But I think the second paragraph needs to 3 be on there. 4 Your Honor, maybe I can make a suggestion that 5 might make the thing read a little bit easier. If you 6 take the intervening and superseding cause part and 7 insert it right between William Forsyth, Sr. and acts, 8 so that it reads, "If you find that William D. 9 Forsyth, Sr.'s intervening and superseding acts of 10 killing June Forsyth and committing suicide were the 11 sole causes of plaintiffs' injury, then you should 12 return a verdict for Lilly." That takes a little of 13 the verbiage out. 14 MR. VICKERY: It throws the Court squarely on 15 Lilly's side and instructing them that William 16 Forsyth's acts were intervening and superseding. 17 THE COURT: It does seem to say that. Also, it 18 seems to say that William Forsyth's act of committing 19 suicide was a superseding cause. I don't see how the 20 jury is going to understand that in relation to -- 21 MR. SEE: Well, Your Honor, with respect, with 22 respect to Mr. Forsyth's death, that is, in essence, 23 the point. That if he, because of his illness, made a 24 determination, notwithstanding the fact that it was 25 clouded and colored and caused by his illness, to take PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2571 1 his own life, then -- and that was the sole cause of 2 his death by suicide, then, in fact, his act wasn't a 3 superseding cause and an intervening cause. 4 THE COURT: But I would think a juror reading 5 this would say, well, now, if Prozac caused 6 Mr. Forsyth to commit suicide and kill his wife, is 7 that an intervening and superseding act? It just 8 seems very confused. 9 Why don't you work on that over the lunch hour 10 and see if you can come up with something that might 11 be agreeable. 12 MR. SEE: All right. We'll try that. 13 THE COURT: Now, next on the -- 1120, the FDA 14 instruction. The Court's inclined to adopt Lilly's 15 request -- both Lilly's requests on that. 16 MR. VICKERY: I'd like to talk you out of 17 adopting their second request about violating Hawaii 18 law, Your Honor. The first one I don't think is earth 19 shaking. The second one is. 20 THE COURT: Well, what if they do violate 21 Hawaii law, the question is whether they caused the 22 deaths, isn't it? 23 MR. VICKERY: Well, it is, but my concern, 24 obviously in litigating with Lilly, is that they 25 always try to, sort of, in my verbiage, hide behind PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2572 1 the FDA, and I think that it's important that the jury 2 understand that Hawaii law governs wrongful death 3 cases in Hawaii and not FDA regulations and not FDA 4 law and not the folks in Washington. So that's the 5 reason I opposed the second one strenuously and the 6 first one just opposed it, because the second one is 7 really important to me. 8 MR. SEE: In the last paragraph of this 9 instruction it, essentially, tells the jury just that. 10 They may take it into account. It's not 11 determinative, which I believe is the law. 12 THE COURT: That's the way the Court is going 13 to go on 1120. 14 So that concludes all of the plaintiffs 15 combined -- 16 MR. VICKERY: Your Honor, Mr. Chang has an 17 excellent idea if you want to back up for one second 18 to 1019. We might be able to resolve it here in a 19 couple of minutes. 20 THE COURT: All right. 21 MR. VICKERY: What he suggests is that the 22 second paragraph be modified to read as follows: If 23 you find that William D. Forsyth's acts were totally 24 unrelated to taking the drug Prozac, then they would 25 be intervening and superseding causes. Because that's PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2573 1 what a sole cause is, it's something that's unrelated 2 to the defendant's drug. 3 THE COURT: Well, maybe you've made a start, 4 anyway. So maybe Mr. See can start off by saying if 5 you find that William D. Forsyth's acts were 6 intervening and superseding acts, and then follow on 7 from there. See if you can up with something that's 8 tolerable to everybody. 9 Now, on Lilly's requested modifications -- 10 MR. SEE: I could be wrong, Judge, but I think 11 we've dealt with them. 12 THE COURT: I think most of them, yeah. And 13 the Court is inclined to delete 43 as being repetitive 14 and redundant. 15 MR. SEE: Other than that, I think we've 16 already talked about all the ones that we raised, Your 17 Honor. 18 THE COURT: I think you're right. It's eleven 19 o'clock now. Let's adjourn to meet again at 1:30. 20 MR. VICKERY: Your Honor, can I ask you a 21 logistical question? 22 THE COURT: Ask what kind of a question? 23 MR. VICKERY: A logistical question. 24 THE COURT: I thought you said a difficult 25 question. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2574 1 MR. VICKERY: No, sir. 2 THE COURT: I've had enough of those already. 3 MR. VICKERY: I think so. This is an easy one. 4 It's just one that I don't know and I suspect Mr. See 5 doesn't either, and that is, do you typically instruct 6 the jury before the lawyers argue or after and do 7 you -- 8 THE COURT: Well, I typically ask the 9 attorneys, and if there's a consensus, I go along with 10 that. 11 MR. VICKERY: And do you give the jury written 12 instructions to take with them to the deliberation 13 room? 14 THE COURT: Yes. 15 MR. VICKERY: Just one copy or eleven? 16 THE COURT: One copy each. 17 MR. VICKERY: One copy each, okay. That's 18 fine. 19 THE COURT: What's your preference as far as 20 instructing before or after? 21 MR. VICKERY: Well, I'll let him say first, 22 because if I say, he'll disagree with me. 23 MR. SEE: Actually, in truth, I think that the 24 best practice is to instruct them before because then 25 they know what the law is, and the lawyers don't have PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2575 1 to keep saying, well, I think the judge is going to 2 tell you this. So everybody knows the score. That's 3 what I think. 4 MR. VICKERY: I agree entirely. 5 MR. SEE: Imagine that. 6 THE COURT: All right. We'll -- my clerk will 7 read off the instructions before, and the jury will be 8 in a very relaxed mood afterwards. 9 We'll see you at 1:30. 10 (Whereupon, the proceedings were adjourned at 11 11:05 a.m. to be reconvened at 1:30 p.m.) 12 THE COURT: Well, maybe first we should take a 13 stab at 1019. Have you reached agreement on this? 14 MR. VICKERY: We have not, Your Honor. I 15 actually still agree with the Court that the second 16 paragraph is confusing and superfluous and 17 unnecessary. Mr. See proposed the wording change you 18 see in the typed version, and as a means to try to 19 achieve a compromise with him, I said that I would 20 back off and agree if he would agree to the phrase 21 "unforeseeable to Lilly and were" at the end of the 22 first line in the second paragraph, but he didn't -- 23 that wasn't acceptable, so the Court is going to have 24 to decide. I still say delete the whole thing, but if 25 you give it, please give that phrase in addition. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2576 1 THE COURT: Well, one thing we thought of was 2 simply to say, "If you find that William D. Forsyth, 3 Sr.'s acts of killing June M. Forsyth and committing 4 suicide were not caused by the ingestion of Prozac, 5 you should return a verdict in favor of Defendant 6 Lilly." 7 MR. VICKERY: I think that's fine. I think 8 that's what the whole notion is of a superseding and 9 intervening cause. 10 MR. SEE: It gets to the same place, Your 11 Honor, but it doesn't strike me as expressing what I 12 understand, anyway, an intervening cause is. 13 THE COURT: Well, but the thing is that the 14 acts of William D. Forsyth, those acts may have been 15 caused by any number of things; by his depression, by 16 his stressors, or by Prozac or by all three. So if 17 you simply say his acts were the sole intervening and 18 superseding cause, the jury doesn't know which one of 19 the causes that I've referred to, i.e., Prozac or 20 depression or whatever was actually the cause that 21 they're to be considering. 22 MR. SEE: Well, the instruction tells them that 23 the party has to be acting independently. The 24 whole -- to me, the emphasis of this kind of 25 instruction is this: Prozac could be the worst drug PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2577 1 in the world. Prozac could have the most 2 unadequate -- inadequate warning or insert in the 3 world, could be terrible, absolutely unacceptable, and 4 if, in fact, Mr. Forsyth, for reasons unrelated to 5 Prozac, performed these acts, this defective drug, 6 this inadequate warning, all of this, you know, 7 hypothetical bad behavior and bad product on Lilly's 8 behalf wouldn't matter if his acts independently 9 resulted in these deaths. 10 THE COURT: Well, the warning doesn't even 11 apply to him. The warning applies to the prescribing 12 doctor. 13 MR. SEE: Right. Would the Court recite the 14 language it was proposing again so I could get it 15 down? 16 THE COURT: "If you find there was" -- it 17 remains the same almost up to the word unforeseeable. 18 "If you find that William D. Forsyth, Sr.'s acts of 19 killing June M. Forsyth and committing suicide were," 20 and then insert "not caused by the ingestion of 21 Prozac, you should return a verdict in favor of 22 Defendant Lilly." 23 MR. SEE: After conferring, I think we would be 24 willing to go with something along that line. 25 THE COURT: Okay. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2578 1 MR. SEE: Although, if I could just ask, it 2 would read, if you find that William D. Forsyth's 3 acts -- if you find that William D. Forsyth, Sr.'s 4 acts were not caused by the ingestion of Prozac -- 5 MR. VICKERY: He said acts of killing June M. 6 Forsyth and committing suicide. 7 MR. SEE: Oh, I see. So, if you find that 8 William D. Forsyth, Sr.'s acts of killing June Forsyth 9 and committing suicide were not caused by the 10 ingestion of Prozac, you should return a verdict in 11 favor of Defendant Lilly? 12 THE COURT: Correct. 13 MR. SEE: We could live with that. 14 THE COURT: All right. Now, the other two, the 15 known or should have been known and the presumption 16 to -- of giving heed to the warning that we're still 17 wrestling with, Mr. See gave us a dozen or so more 18 cases over the lunch hour. I presume you've received 19 them, too, Mr. Vickery. 20 MR. VICKERY: I got them when I got back from 21 lunch here, Your Honor. I've glanced through them and 22 I've conferred with Mr. See about them. Only one of 23 them is from Hawaii. It's Craft vs. Peebles. It does 24 not mention Comment K. It does not mention 25 unavoidably unsafe. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2579 1 THE COURT: You don't have a Hawaii case that 2 deals with prescription drugs. 3 MR. VICKERY: You're right. The Courts in this 4 situation -- 5 THE COURT: On the other hand, the Larsen court 6 did seem to adopt Comment K. 7 MR. VICKERY: Right. Exactly. 8 THE COURT: But then found that Pacesetter were 9 not applicable. 10 MR. VICKERY: Right. 11 MR. SEE: If I could just amplify? 12 THE COURT: Well, frankly, what we want to do 13 is go and read some of these cases that Mr. See cited 14 to us to see whether in those states they allow state 15 of the evidence -- 16 MR. VICKERY: State-of-the-art evidence. 17 THE COURT: -- state-of-the-art evidence in 18 product liability cases. 19 MR. VICKERY: I think what you'll find is two 20 things, Your Honor, and I'm familiar with some of 21 those cases and not familiar with others of them, but 22 to answer the question you just said is going to 23 require a significant amount of research in each of 24 those states. 25 THE COURT: Well, what else is new? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2580 1 MR. VICKERY: I know. I know. Everything I 2 filed in this case, and I know I've filed some papers, 3 but I think almost every pleading or brief I have 4 filed has been in response to something Lilly has 5 filed. But I think what you will find is two things, 6 number one, is that in a lot of those states they do 7 permit state-of-the-art evidence, and more 8 importantly, most of those states, unlike Hawaii, 9 adopt the Theyer or bursting bubble view of 10 presumptions. 11 So if you look at the presumption law in those 12 states, most of them adopt that rule. It's the 13 Federal rule under Rule 301, but it's not the Hawaii 14 rule, and that's what's, you know, critically 15 important in applying Hawaii law. Hawaii law is just 16 different. It has been from the time they first 17 adopted the Stuart case, Judge, because every other 18 state if you were to look at, they talk about a 19 product being defective if it's unreasonably 20 dangerous. The Hawaii Supreme Court specifically 21 rejected that. It's just different. 22 THE COURT: Well, I'm not comfortable with that 23 at this juncture. 24 MR. SEE: With respect, Your Honor, I was 25 offering these cases from -- Peebles, is of course the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2581 1 Hawaii Supreme Court, but cases from other 2 jurisdictions, I had thought that there -- a question 3 had arisen whether when Comment K was applied to 4 prescription drugs, as the parties have stipulated it 5 should be in this case, what standard should apply. 6 And in every one of those cases and every one I've 7 ever heard of the standard is that the manufacturer is 8 held to warn of those risks it knew or it should have 9 known at the time of the manufacturer distribution of 10 the drug. 11 And with respect, the Peebles case does have a 12 product involved, it's a breast implant. So it's a 13 little different. It's not a prescription drug, but 14 they do go on and it is clear that the case has to do 15 with the issue of whether that product was defective, 16 and in talking about what kind of warning would be 17 given, on Page 20, they say the same thing, adequate 18 warning -- 19 THE COURT: Page 20 of what? 20 MR. SEE: Sir? 21 THE COURT: Page 20 of what? 22 MR. SEE: I'm sorry, it's Page 20 -- I'm sorry, 23 it's Page 20 on the West Law printout. It would be on 24 page, looks like, 159 of the Pacific Reporter, 893 25 P. 2nd 159, I believe that would be. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2582 1 Where it specifically says, "The adequate 2 warnings of the potential risk or side effects which 3 are known or should have been known." So they're 4 applying the same standard. 5 THE COURT: What case is that? What's the name 6 of the case? 7 MR. SEE: Craft vs. Peebles. 8 THE COURT: Oh. Is that Example C or 9 something? 10 MR. SEE: That's Example C, yes, sir. 11 THE COURT: Whatever that means. Well, let's 12 go through Lilly's motion to strike plaintiffs' 13 exhibits. I take it Lilly still wants to pursue this? 14 MS. MANGRUM: Yes, Your Honor. We discussed it 15 over lunch and Lilly does want to still pursue this. 16 THE COURT: I'm almost tempted to grant it. 17 MS. MANGRUM: Maybe I can help sway you in that 18 direction. The point is this and it's just one of 19 absolute fairness. The Court ruled upon several 20 objections, hearsay, other injuries, some foundation 21 questions, such as if a document contained an opinion 22 for which there was no foundation, but it was never 23 Lilly's understanding that the Court had admitted 24 these into evidence so that they could be considered 25 by the jury and argued by the plaintiff without PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2583 1 allowing Lilly to rebut them or to give testimony on 2 those exhibits. 3 THE COURT: Certainly you could have given 4 testimony, but you didn't object to them when they 5 came in and looking at these instructions here, I 6 mean, these exhibits, there are 17 that you're 7 complaining about, 7 of which you never even requested 8 the Court to address. They were not yellowed in. The 9 Court was not even asked to consider them, two of 10 which there was no objection for foundation, so we're 11 down to eight at that point. 12 MS. MANGRUM: The foundation objections that we 13 raised, Your Honor, are those that I mentioned, that 14 there was no foundation because it was an unidentified 15 exhibit or because there was an opinion for which 16 there was no foundation present in the exhibit. That 17 was what was meant by the foundation objections in the 18 written pleadings -- 19 THE COURT: Incidentally, do one of you have a 20 copy of the yellowed-in objections so that we can put 21 that in the record, so that the appellate court will 22 know which ones the Court was meant to consider and 23 which ones the Court does not need to consider? 24 MS. MANGRUM: Yeah, we filed one, Your Honor. 25 THE COURT: It was filed -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2584 1 MS. MANGRUM: With the -- 2 THE COURT: -- with the yellow? 3 MS. MANGRUM: Yes, sir. Yes. 4 THE COURT: All right. 5 MS. MANGRUM: The fact is that these are not 6 any exhibits that Lilly would want to introduce, and 7 therefore, it would not be reasonable to expect Lilly 8 to introduce them only so it could rebut them just to 9 have -- to prevent plaintiff from making closing 10 arguments about documents for which no context has 11 been established through any witness in this case. 12 The example I give there in the pleading is the 13 perfect example. It's a draft letter. I have the 14 final letter, Your Honor, and I can put that into 15 context, but I can't now because I didn't have a 16 witness to use it with. I didn't need to use it for 17 rebuttal. It was purely a rebuttal exhibit, and 18 therefore, it's not on my exhibit list and wasn't 19 offered into evidence. 20 There are other documents from which plaintiffs 21 could argue, look, Lilly says there are this many 22 suicides in the database, but look, now in this 23 document they're saying there's another number, and 24 the explanation is really quite simple. It's a 25 different database. It's a different year. Perhaps PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2585 1 it's U.S. and international trials instead of just 2 U.S. trials, so to the extent we want the jury to 3 decide the issues in this case based on facts and 4 context and not just one-sided story of some exhibit 5 from which they can fathom who knows what kind of 6 argument, I think it's absolutely unfair to allow the 7 plaintiffs to get up now and to argue these exhibits 8 to the jury. 9 These objections were not made because they 10 were never used with any witness. 11 THE COURT: Thank you. Mr. Vickery. 12 MR. VICKERY: I'm deferring to Ms. Barth, Your 13 Honor. 14 MS. BARTH: Your Honor, as you note, the motion 15 that Lilly has filed was based on foundation. That's 16 their objection. The Court is obviously aware that 17 relevance needs to be established and authenticity 18 needs to be established in order to give the 19 foundation, as I presented in my opposition. Both of 20 those are clearly established. 21 Ms. Mangrum now sounds like she's making some 22 403 objections as to prejudice. None of these 23 objections were raised, as the Court pointed out, at 24 the time the objection -- or the exhibits were 25 admitted and it's just untimely at this point to be PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2586 1 making any objections right now. 2 I'm also aware that she's added some other 3 exhibits this morning to this list of exhibits that 4 she's claimed were not used with the witness and these 5 had already been -- 6 THE COURT: This morning? 7 MS. MANGRUM: Your Honor, this morning 8 Ms. Hawkins and I reviewed the exhibits that plaintiff 9 plans to give to the jury. We reviewed each others to 10 make sure we have the proper redactions made in 11 accordance with the Court's prior rulings, and in 12 going through that, there were ten or eleven others 13 that plaintiffs plan to use that they have never used 14 with any other witness in this case, and it's the same 15 type thing. They now want to put the Teicher article 16 into the jury's hands, and it's a medical literature 17 article that's absolutely inadmissible under 803-18. 18 The jury has heard all about Teicher, but they 19 have no right to review this medical article. They've 20 heard about it from witnesses. So while that is one 21 they have used with witnesses, it's certainly not one 22 that can go to the jury. 23 THE COURT: That would seem to be correct. 24 MR. VICKERY: Let me address that, Your Honor. 25 That is correct. I haven't seen her new list of ten. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2587 1 I've had my hands about as full as I can trying to 2 prepare final summation for this jury tomorrow, but I 3 understand that there's an additional ten now. I 4 mean, I would agree that the Teicher article doesn't 5 need to go to the jury for their consideration, but I 6 do think that Ms. Mangrum seems to believe that unless 7 an exhibit is discussed with a witness, that it's not 8 pertinent evidence, and that's simply never been the 9 law in any jurisdiction in this country. 10 A lot of times there's documentary evidence 11 that is important for a jury's consideration, but you 12 might not ever discuss it with a witness. That 13 doesn't mean the jury can't see the document. 14 MR. SEE: Your Honor, now that Mr. Vickery has 15 gotten up, if you wouldn't mind, if I could just have 16 a second. Your Honor made blanket rulings on our 17 exhibits and we had a lot of argument about it. Our 18 best understanding was that the Court had ruled, and 19 then at some point in the trial -- and that was the 20 ruling. The exhibit was admissible or it wasn't. And 21 then at some point in the trial, the Court said, well, 22 you need to make foundation objections, so we were 23 alerted to that and we would do that. 24 The problem is one cannot make a foundation 25 objection. One cannot object that a witness does or PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2588 1 does not know about a document or can or cannot say 2 something about it or that there's no foundation for 3 the document at all when it is never put up in front 4 of a witness, and these documents were never put up in 5 front of a witness. Not a single word of testimony 6 has been given about any of them. Absolutely none. 7 If we had objections to make, they would have been 8 made at the time the exhibit came up. 9 THE COURT: The Court's going to deny Lilly's 10 motion. First, the Court finds the motion untimely. 11 Second, the Court never ruled on foundations and the 12 Court informed the parties that it had not, and that 13 it would have been virtually impossible for it to rule 14 on foundation simply from the objections prior to 15 trial. 16 Third, the Court finds that Lilly waived any 17 objections to foundations. The Court finds that Lilly 18 could have addressed any concerns it had with any of 19 these documents with its witnesses and other 20 witnesses. 21 Finally, as represented by plaintiffs, it 22 appears that all of these documents were produced by 23 Lilly during the MDL proceeding. 24 Okay. Let's go to Lilly's motion for judgment 25 as a matter of law. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2589 1 MS. MANGRUM: Your Honor, if I may. Back to 2 this, just two points. No. 95, that they intend to 3 offer because they say it's been admitted -- 4 THE COURT: What are we on now? 5 MS. MANGRUM: Excuse me, we're on Plaintiffs' 6 Exhibit 95. They have moved to admit it and they 7 claim the Court has admitted it and it's a medical 8 article. 9 THE COURT: By whom? 10 MS. MANGRUM: Martin Teicher. 11 THE COURT: I just finished saying that the 12 Teicher article would not come in to the jury. 13 MS. MANGRUM: And then the same will be to 14 Plaintiffs' Exhibit 15 that has the Nugine 15 (phonetically) article and the Teicher article 16 attached to it. 17 THE COURT: That's correct. 18 MR. VICKERY: Well, now wait a minute, Your 19 Honor. That's the marketing materials. 20 THE COURT: Pardon me? 21 MR. VICKERY: I think -- isn't No. 15 the 22 marketing letter? This is -- No. 15 is the Dista 23 marketing letter January 30, 1990, and this isn't 24 803-18 material. This is material that Lilly gave 25 its -- PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2590 1 THE COURT: Well, the marketing letter comes in 2 and it can go to the jury. 3 MR. VICKERY: Right. 4 MR. SEE: Your Honor, it has attached to it two 5 medical articles and that's what we object to going to 6 the jury. 7 THE COURT: All right. The attachments are 8 deleted then. 9 MR. VICKERY: Okay. 10 THE COURT: Now, on Lilly's renewed motion for 11 judgment as a matter of law. 12 MR. SEE: Yes, sir. I'll address that briefly, 13 if I may. It raises, essentially, the same points 14 that the one did at the close of plaintiffs evidence. 15 I will not belabor them, only to say by both the 16 plaintiffs' experts, causation, in fact, in this case 17 depends upon William Forsyth having a condition called 18 akathisia. 19 THE COURT: Okay. Now, the only ones I want 20 you to address are under number two. I'm denying, 21 again, those under one. 22 MR. SEE: Under two we raise, perhaps, at this 23 stage of the case, as a technical procedural point 24 that there is no design defect claim left in the case 25 and in fact, in all the instructions we've been PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2591 1 submitting -- 2 THE COURT: You're right. That seems to me 3 that that's resolved by the jury instructions. 4 MR. SEE: Yes. B talks about a 5 misrepresentation claim, and I would submit that's 6 also been resolved, and there's not going to be any 7 submission on that. 8 THE COURT: As far as no 402B instruction. 9 MR. SEE: Yes, sir. And the third goes to our 10 position that any so-called strict liability for 11 breach of warranty claim is subsumed in the strict 12 liability submission. 13 THE COURT: But it's still alive. The Larsen 14 case says that the burden of proof is the same as 15 strict liability. 16 MR. SEE: Yes. 17 THE COURT: So it's -- you're correct that it 18 is subsumed, but it's still alive. I'm not sure it 19 makes any difference. 20 MR. SEE: It's the same unitary submission as 21 the Court's already really structured it, so I think 22 you're right. I think it doesn't make any difference. 23 Those were the new grounds, Your Honor. 24 THE COURT: Do you have any comments on those, 25 Mr. Vickery? PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2592 1 MR. VICKERY: No, Your Honor. I think the 2 record is clear and I think these things are subsumed 3 in the jury instructions. 4 THE COURT: All right. Let's turn to the -- 5 Lilly's motion to exclude certain matters in final 6 arguments. 7 MR. SEE: Your Honor, if I could address that. 8 THE COURT: I guess the plaintiffs haven't had 9 an opportunity to file anything in opposition to that; 10 is that correct? 11 MR. VICKERY: Well, we haven't, Your Honor. I 12 have never in my life seen such a motion. It's 13 extraordinary to me. It's untimely. It could have 14 been filed Thursday. It could have been filed Friday. 15 I could have been given it Saturday or Sunday. I'm 16 given it at ten o'clock this morning, 23 hours from 17 the time I'm supposed to give my final argument, and 18 what it is, it's a procedurally unprecedented device 19 to try to ferret out my work product and to get me to 20 say in response, either in paper or in open court, oh, 21 no, I'm not going to argue that or oh, yes, I am going 22 to argue this. It's just incredibly inappropriate. 23 It should be denied out of hand. 24 I'm confident, Your Honor, if I argue beyond 25 the record, okay, which I assure the Court I don't PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2593 1 intend to do. I mean, I've tried over 50 jury cases 2 and I'm not going to argue beyond what the evidence is 3 in this record and the permissible inferences from 4 that evidence should be, but I'm confident that if I 5 do, Mr. See will object and I'm confident that the 6 Court will sustain that objection, but I'm not going 7 to do that. 8 MR. SEE: If I might, Your Honor, the purpose 9 of filing this motion is so that Mr. Vickery can give 10 his closing argument without me jumping up and down. 11 There had been a number of objections in the case, and 12 I put this together over this weekend in the hopes 13 that these matters could be raised, they could be 14 understood, that an understanding might develop about 15 what could or could not be argued. 16 Once you get it out, it's too late. For 17 example, how long it took Mrs. Forsyth to die. Now, 18 Mr. Vickery was successful in getting his non-expert 19 witness to say something about that on the stand, and 20 the Court struck that, but that's a point of an unrung 21 bell. It is impossible to unring that bell. 22 And so my intent in filing this motion is to 23 try to avoid that very kind of circumstance. I can 24 jump up real fast, but not quite that fast and that's 25 my purpose in doing it. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2594 1 THE COURT: All right. Let's go through this. 2 Is there any question about number one, length of time 3 between Bill and June Forsyths' injuries and death? 4 MR. VICKERY: No, there is no evidence of how 5 long it took her to die. 6 THE COURT: Okay. Number two -- well, let me 7 skip the ones that appear arguable first. As far as 8 number four, is there any data as to what Lilly did 9 provide to the FDA? 10 MR. SEE: The plaintiffs put on no evidence 11 that any submission was inadequate or misleading or 12 inappropriate or not what it should have been, so they 13 ought not argue that. I have some fear that they 14 might. 15 MR. VICKERY: Judge, I don't want to divulge my 16 work product to Mr. See, but I assure the Court, I'm 17 not going to argue outside of the record. Maybe 18 Mr. See has a different recollection of the evidence 19 than I do, but there is certainly evidence about the 20 way Lilly approached this issue, what they provided 21 and did not provide to the FDA. There's plenty of 22 evidence in this record about that. 23 THE COURT: Well, we'll come back to that. As 24 far as subheading B, No. 1, post 1993 medical 25 literature in relation to defendant's duty to warn. I PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2595 1 guess this gets back to how the Court's going to rule 2 on that instruction. 3 MR. SEE: It does. 4 THE COURT: No. 2, references to a duty to warn 5 the patient directly, and I take it there's no 6 question about that? 7 MR. VICKERY: How stupid would I be if I made 8 such an argument knowing what the Court would do to me 9 in front of the jury if I did it? 10 THE COURT: Now, No. 3, emotional distress, as 11 I recall, was subsumed under the Osaki ruling into 12 love and affection, et cetera. Certainly Mr. Vickery 13 can talk about love and affection. 14 MR. SEE: He can absolutely talk about love and 15 affection, but what I submit he may not talk about are 16 Bill Forsyth coming upon the scene of his parents and 17 saying how distressed he was at seeing such a sight 18 and he suffered emotional distress as a result of 19 that. 20 THE COURT: I don't think there was any 21 testimony on that. 22 MR. SEE: I think there's not. I agree. 23 THE COURT: Any problem with that, Mr. Vickery? 24 MR. VICKERY: Your Honor, I think the emotional 25 distress that Bill, Jr. and Susan have suffered as a PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2596 1 result of the deaths of their parents is, indeed, 2 subsumed into the other elements of damages under the 3 Osaki case, and in order to effectively represent my 4 clients, I need to be able to argue to the jury those 5 elements of damages that are recoverable under Hawaii 6 law. 7 THE COURT: Well, so long as you stick within 8 the categories that you are allowed to. 9 MR. VICKERY: I intend to do exactly that. 10 THE COURT: All right. Other allegedly 11 defective products, I take it you're not going to go 12 into those at all? 13 MR. VICKERY: Of course not. 14 THE COURT: Now, coming back to Sub 2 under A, 15 criticism of Lilly's Prozac package insert. 16 MR. SEE: The testimony, Your Honor, by 17 Dr. Shlensky was concise -- 18 THE COURT: I mean, there's been a lot of 19 testimony about that insert by experts. 20 MR. SEE: There has been a lot of testimony, 21 that's right. And if we think about what it has been, 22 the criticisms have been that the insert did not raise 23 the issue of the potential for suicide or violence. 24 That's all. No other criticisms. 25 So I would submit Mr. Vickery cannot talk PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2597 1 about, well, the print's too fine or there should have 2 been a black box or the fact that you can talk about 3 suicide, but not specifically in the warning section. 4 There's been no expert testimony criticizing the 5 insert saying that it's inadequate because of any of 6 those kinds of things, and therefore, he should not be 7 able to argue them. 8 He had all of his experts on the stand and they 9 could have given every criticism that they wanted, and 10 the only one they gave is it didn't raise the 11 potential for violence or suicide. 12 So any argument, well, it's not a warning 13 because it didn't go in the warning section, there's 14 no evidence of that. There's no evidence that that is 15 an inadequacy or a deficiency somehow. 16 THE COURT: Mr. Vickery. 17 MR. VICKERY: That's preposterous. One of the 18 Court's general instructions to the jury is that you 19 can consider all of the evidence, the testimony of all 20 of the witnesses regardless of who brought them, all 21 of the documents. You don't need an expert to tell a 22 group of eleven people that the print is too small to 23 see, but if you did, we've got one. Lilly paid him 24 $600 an hour to bring him in here and he couldn't read 25 it and he couldn't find it. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2598 1 This evidence -- you know, I appreciate 2 Mr. See's desire to let me give an uninterrupted 3 closing argument, but it is nothing more than an 4 attempt to ferret out my work product. I resent it. 5 And, you know, there's some ideas here maybe I haven't 6 thought of that maybe I should, Judge, but in all 7 fairness, there's an abundance of evidence about this 8 warning and these labels. 9 MR. SEE: And no expert opinion that it is 10 inadequate because of any of them. And that's what it 11 requires. 12 THE COURT: Well, I'm going to allow it. I 13 disagree with you. I think there has been expert 14 testimony on what's in what portion of the insert, 15 whether it's a warning or a precaution or a side 16 effect or whatever. I'm going to deny Lilly's request 17 for a restriction on that. Although, again, I will 18 still hold Mr. Vickery to arguing this to only with 19 the evidence that came in, but I do find that that 20 falls within the opinion of Dr. Shlensky. 21 No. 3 is criticism of Lilly's -- yeah, 22 criticism of Lilly's clinical trials, and as to the 23 final paragraph of that section as to what the parties 24 stipulated to, it is to the exclusion of serious -- 25 patients of serious risk of suicide, it would seem to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2599 1 me that Mr. Vickery should be precluded from being 2 critical of that, but as far as the last sentence of 3 the previous paragraph, the manner in which Lilly 4 Prozac clinical trials were designed or conducted or 5 the analysis of data from Lilly's clinical trials, I 6 don't see why that should be precluded. 7 MR. SEE: Well, Your Honor, if I may, 8 neither -- I say neither, none of the plaintiffs' 9 experts gave opinion testimony that the clinical 10 trials were conducted in some way that was not the way 11 they should have been done, that they were deficient 12 in some way. No one gave an opinion testimony about 13 that. So he ought not be able to argue it. 14 THE COURT: My recollection is that there were 15 several experts that testified on that subject matter. 16 Mr. Vickery. 17 MR. VICKERY: My recollection is consistent 18 with yours, Your Honor, and I'd really rather not 19 share with Mr. See, all of the portions of the 20 evidence I intend to emphasize. 21 THE COURT: I'm not going to preclude that. 22 No. 4 under A, adequacy of the data and other 23 information Lilly provided the FDA. 24 MR. SEE: None of the plaintiffs' experts put 25 in their reports Lilly did not submit certain data to PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2600 1 the FDA or Lilly submitted the wrong kind of data or 2 Lilly falsified data. None of them had it in their 3 reports and none of them gave such opinions, so they 4 ought not be able to argue it. 5 THE COURT: Mr. Vickery. 6 MR. VICKERY: Let me give -- I'll violate my 7 rule that I'm complaining about here, and give you 8 just one example, just one in the evidence. 9 Dr. Charles Beasley testified in his deposition that 10 there were 300 deaths of people that he was aware of 11 when he did his meta-analysis for the FDA and did not 12 share it with the FDA. Didn't crank it into his 13 analysis there. That is one of many references in 14 this record that indicates that Lilly has not been 15 fully forthcoming and candid with the FDA over this 16 issue. 17 MR. SEE: Your Honor, forgive me, that is 18 exactly -- the 300 deaths that Dr. Beasley's referring 19 to were deaths from every source, spontaneous reports, 20 every source and if you remember what Dr. Beasley said 21 in the little excerpt Mr. Vickery read, I think 22 Dr. Beasley said, no, I didn't report it in that 23 article, not in that submission. 24 Mr. Vickery is taking apples over here and 25 saying they ought to be oranges, and that is the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2601 1 apparent problem. He's had no expert say, and you 2 know what, that was hiding that data. That was wrong, 3 because no expert could say that. 4 THE COURT: Well, I'm not going to foreclose 5 this area, but, Mr. Vickery, I will hold you 6 accountable to the testimony of the experts. 7 MR. SEE: I have Dr. Beasley's testimony right 8 here, Your Honor. It is so misleading. 9 THE COURT: Well, if it's so misleading, then 10 you can certainly make hay out of that if Mr. Vickery 11 uses it in the wrong way. 12 MR. SEE: Very well. 13 THE COURT: I think we've covered all of your 14 grounds here; is that right? 15 MR. SEE: Except the one specifically 16 referencing the standard of knew or should have known. 17 THE COURT: Right. Well, we're left with those 18 issues still outstanding. Frankly, what the Court is 19 considering is putting off final argument for another 20 day so that we can resolve that or whether we can 21 resolve that tomorrow morning, but I think you'd take 22 longer than the afternoon for your argument. How long 23 will your arguments be? 24 MR. VICKERY: I think we agreed the other day 25 on an hour and a half per side, Your Honor. PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2602 1 THE COURT: Right, and I wondered if over the 2 weekend you decided that it might be shorter? 3 MR. VICKERY: No, sir. I thought maybe I was 4 too niggardly with myself and I should have asked for 5 more. But in all honesty, Judge, I think an hour and 6 a half is what it's going to take. Now, if you want 7 to, if you think we can resolve it, in the morning -- 8 the problem I have, I guess, is we're bringing in 9 these people tomorrow morning to hear this argument 10 and even if they have to come back at one o'clock 11 tomorrow afternoon, they're going to be angry, and I 12 don't know who they're going to take that out on. 13 Whether you want to -- I just don't know. I 14 think the Court has been inundated with a lot of paper 15 here at the last minute is what I really think, but I 16 understand the Court's desire to consider all of the 17 arguments and authorities Lilly has raised. 18 THE COURT: No, these are extremely important 19 issues that have been raised. 20 MR. VICKERY: They are. They are, indeed. And 21 so I would defer to your wisdom on whether to do it at 22 one o'clock tomorrow or the following day or 23 whether -- 24 THE COURT: I think I would tend to do it the 25 following day, have final arguments the following day, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2603 1 unless that's going to pose a real problem for you. 2 MR. SEE: The only thing that would pose a 3 problem is to have Mr. Vickery open up and then have 4 me argue and have him argue the next day. That would 5 pose a problem. 6 THE COURT: Oh, yeah. No. No. What I'm 7 saying is to have -- to start final arguments on 8 Wednesday morning. 9 MR. SEE: If that's the Court -- if that's the 10 Court's pleasure, that's certainly okay with me. 11 THE COURT: All right. 12 MR. SEE: Your Honor, may I ask is Friday -- 13 Friday is Good Friday. I don't know if that's a court 14 holiday here or not? 15 THE COURT: That is not because it's a 16 national -- I mean, it's a day that's observed 17 nationally as opposed to state holidays that are 18 observed by individual states, and none of the other 19 courts observe that, so you can read my Good Friday 20 opinion. 21 MR. VICKERY: Let me get this straight. We 22 take off Prince Kuhio Day, but not Good Friday? 23 THE COURT: That's the state of affairs. 24 MR. VICKERY: I understand. 25 MR. SEE: I guess the only other thing I would PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2604 1 offer, Your Honor, is the strict liability instruction 2 is, in fact, the strict liability instruction agreed 3 to by the plaintiffs as a correct statement of the 4 law. I know that's been said before, but it seems to 5 me -- 6 THE COURT: Well, I'm sorry, what did you just 7 say? 8 MR. SEE: The instruction that Your Honor is 9 looking at -- 10 THE COURT: Well, there are two instructions 11 I'm looking at. 12 MR. SEE: Yes, essentially, the knew or should 13 have known -- I'm talking about the knew or should 14 have known standard. That instruction was, in fact, 15 agreed to by the plaintiffs when we submitted the 16 instructions. 17 THE COURT: Do you have a copy of that 18 stipulation? 19 MR. SEE: I do, yes. The copy I have right 20 here is not the signed one, but I have a copy of it 21 which I'll be happy to hand up. 22 THE COURT: Thank you. 23 MR. SEE: It's number one that makes reference 24 to this particular issue. 25 MR. VICKERY: And all I would say about that is PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2605 1 two things, Your Honor. Mr. See is right. We did 2 agree that that was a correct statement of the law 3 based on the case and the postulant was. Since then 4 two things have happened to change that, number one is 5 the stipulation between the parties was signed, and I 6 think that changes it, and number two is -- 7 THE COURT: Wait a minute. When was this one 8 filed? 9 MR. VICKERY: This was filed at the start of 10 the trial. What Mr. See is saying is that some months 11 ago when he and I were discussing the jury issues, 12 that I agreed to the instruction that Paragraph B 13 instruction that we're now asking the Court to delete. 14 THE COURT: No, I think what he's saying -- 15 well, I guess he's saying that, but he's also saying 16 that Prozac -- number one, Prozac is an unavoidably 17 unsafe product as that term is used in Comment K 18 Section 402A of the Restatement. 19 MR. VICKERY: Right. Right. We've stipulated 20 to that from the get-go of this trial, of the trial, 21 and so what I'm telling the Court is there are two 22 things that changed my mind about the appropriateness 23 of that Paragraph B that the Court's considering. One 24 of them is the stipulation was signed, and I suggest 25 that that changes the equation by impugning to the PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2606 1 drug manufacturer that claims the benefits of Comment 2 K, the knowledge that goes along with those benefits. 3 THE COURT: That seems to be contrary to what 4 Comment K itself says in the language that Mr. See 5 pointed out this morning. 6 MR. VICKERY: I understand that, but that 7 brings me to the second thing which is, the Johnson 8 versus Raybestos case, which my ever faithful local 9 counsel Mr. Chang, who's trying to make sure that I 10 don't in some way get the Court in trouble over Hawaii 11 law, pointed out to me that in light of this 12 stipulation and under that very clear short case from 13 the Hawaii Supreme Court that we would be remiss if we 14 didn't tell the Court, if you give that paragraph, 15 you're running a foul of Hawaii products liability 16 law, because Hawaii -- there are things in the 17 Restatement -- 18 THE COURT: But Mr. See is saying, as I 19 understand it, that there's a special area carved out 20 for prescription drugs. 21 MR. VICKERY: Oh, there is. 22 THE COURT: Whereas, the asbestos cases fall 23 under the more general section. 24 MR. VICKERY: There is. There is, but we still 25 have to look at the underlying principles and PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2607 1 rationale of the Hawaii law. 2 THE COURT: But that involved more general 3 products liability. It did not -- as I mentioned 4 earlier, you don't have one case, one Hawaii case that 5 involves prescription drugs. 6 MR. VICKERY: I know. I know we don't. 7 THE COURT: I guess this will be the first one. 8 MR. VICKERY: It puts the Court in perilous 9 waters and I -- 10 THE COURT: That's nothing new. 11 MR. VICKERY: It's nothing new. My mentor 12 Chief Judge Brown once wrote what a federal court says 13 about state law is not the last word, but only the 14 latest. 15 But I understand that the Court is inevitably 16 in a position where you have diversity jurisdiction 17 and you are applying Hawaii law of making the -- what 18 the Hawaii courts would do with it, but what I have 19 suggested to the Court time and again, as I have come 20 to know the jurisprudence of this state is that Hawaii 21 is different. It's different in several respects all 22 of which benefit the consumer or, in this instance, 23 the patient. 24 THE COURT: Well, there are certainly some 25 cases that hold to that effect in general, but again, PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2608 1 whether that applies to prescription drugs is another 2 matter. 3 Well, let's meet tomorrow at 1:30 again, and 4 we'll have final arguments starting at nine o'clock on 5 Wednesday. Is there anything else that we should 6 discuss now? 7 MR. SEE: Nothing, Your Honor. 8 MR. VICKERY: No, sir. 9 THE COURT: All right. 10 (Whereupon, the proceedings were adjourned at 11 2:35 p.m. to be reconvened on Tuesday, 12 March 30, 1999 at 1:30 p.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 PACIFIC REPORTING SERVICES UNLIMITED, INC. (808) 524-PRSU 2609 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 29, 1999, before the Honorable Alan C. Kay, 10 United States District Judge. 11 DATED: December 29, 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