Walls v. Armour Pharmaceutical Co., 89-1705-CIV-T-23B.

Citation832 F. Supp. 1505
Decision Date01 September 1993
Docket NumberNo. 89-1705-CIV-T-23B.,89-1705-CIV-T-23B.
PartiesBrenda Mills WALLS, as co-personal representative for the Estate of Jason Christopher, Deceased, Plaintiff, v. ARMOUR PHARMACEUTICAL COMPANY, Defendant.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

Jeré M. Fishback, Kleinfeld & Fishback, St. Petersburg, FL, for plaintiff.

Douglas F. Fuson, Sidley & Austin, Chicago, IL, Edward W. Gerecke, Carlton, Fields, Ward, Emmanual, Smith & Cutler, P.A., Tampa, FL, for defendant.

OPINION DENYING DEFENDANT'S ALTERNATIVE MOTION FOR A NEW TRIAL PURSUANT TO RULE 59(a)

HILLMAN, Senior District Judge, Sitting by Designation.

This is a wrongful death diversity action brought by Brenda Mills Walls as co-personal representative of the Estate of Jason Christopher, deceased. Brenda Mills Walls is the natural mother of Jason Christopher ("Jason"), who died on February 2, 1992. Defendant is Armour Pharmaceutical Company ("Armour"), a Delaware corporation doing business in the State of Florida. During the years 1982-1985, among other products, Armour manufactured and sold under various brand names a plasma product generically known as Factor VIII concentrate.

During his entire life, Jason suffered from classic hemophilia, Type A, a hereditary bleeding disorder. Treatment required transfusions of Factor VIII concentrate. It is claimed that between January 30, 1983, and May 24, 1985, Jason used and consumed Factor VIII concentrate manufactured by Armour. As a result, plaintiff claims that Jason was infected with the Human Immuno-deficiency Virus (HIV), which developed into the condition known as Acquired Immune Deficiency Syndrome (AIDS). As a result of complications caused by AIDS, Jason died on February 2, 1992, at the age of eleven.

This action was originally filed on December 27, 1989, by Steven R. Christopher, Jason's father, on Jason's behalf as a personal injury action. While this action was pending, the child died. Under Florida law, Jason's personal injury claims were extinguished by his death. Fla.Stat. § 768.20. On April 29, 1992, Jason's mother, Brenda Mills Walls, on behalf of the estate, filed an amended complaint for damages and demand for jury trial. The amended complaint reflected Jason's death and asserted a wrongful death action under the Florida Wrongful Death Act, Fla. Stat. §§ 768.16-27.

Following a six-day trial, the jury awarded total damages of $2,007,256.13. In response to special interrogatories, the jury unanimously found, from the greater weight of the evidence, the following facts: 1) that Jason Christopher was infected with the AIDS virus from Factor VIII concentrate produced and sold by Armour Pharmaceutical Corporation ("Armour") (Verdict, Question # 1); 2) that Armour was negligent in failing to warn prescribing physicians in a timely or an effective manner of a potential AIDS risk associated with its Factor VIII concentrate product (Verdict, Question # 2); and 3) that Armour's negligence was a proximate cause of Jason Christopher's death (Verdict, Question # 3). The jury awarded damages of $1 million to Brenda Mills Walls, Jason's mother; $1 million to Steven R. Christopher, Jason's father; and $7,256.13 to Jason's estate for funeral expenses (Verdict, Question # 4). In addition, the jury found, from the greater weight of the evidence, that Jason's parents, Steven R. Christopher and Brenda Mills Walls, did not know or should not have known before December 27, 1985, 1) that Jason was infected with the AIDS virus (Verdict, Question # 5); or 2) that there was a potential causal connection between Jason's HIV-infection and his use of Factor VIII concentrate (Verdict, Question # 6).

On July 2, 1993, the court denied Armour's renewed Fed.R.Civ.P. 50 motion for judgment as a matter of law. Brenda Mills Walls v. Armour Pharmaceutical Co., 832 F.Supp. 1467 (M.D.Fla.1993) ("Armour"). Presently before the court is Armour's alternative motion for a new trial pursuant to Fed.R.Civ.P. 59(a). Armour claims that the judgment entered by the Clerk on January 27, 1993, should be vacated and a new trial ordered. Armour claims that the verdict in this matter was tainted by error, including the allegedly improper admission of prejudicial damage evidence; the court's refusal to bifurcate the plaintiff's liability case from her allegedly unrelated but inflammatory proofs of damages; allegedly confusing and misleading jury instructions; allegedly improper argument by plaintiff's counsel during his opening statement and closing argument; allegedly improper and extraneous comments by one of plaintiff's witnesses; and the cumulative effect of these allegedly prejudicial errors. In addition, Armour claims that the jury's verdict was against the manifest weight of the evidence. (I assume defendant means the great weight of the evidence.) See Vance v. Southern Bell Tel. & Tel. Co., 863 F.2d 1503, 1515-16 (11th Cir.1989).

STANDARD FOR FED.R.CIV.P. 59(a) MOTIONS

Fed.R.Civ.P. 59(a) provides the following:

A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States.

However, in considering a motion for new trial, the district judge should not substitute his or her own "credibility choices and inferences for reasonable credibility choices and inferences made by the jury." Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1215 (11th Cir.1991) (citations omitted).

The general standard by which the Eleventh Circuit reviews orders for new trials is abuse of discretion. Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir.1987). This standard recognizes the deference due "the trial court's firsthand experience of the witnesses, their demeanor, and a context of the trial." Id. The Eleventh Circuit considers that this level of deference is particularly appropriate where a new trial is denied and the jury's verdict is left undisturbed. Id.

However, when the district court grants the motion for new trial, the Eleventh Circuit's review "is broader and the application of the abuse of discretion standard is more stringent." Jackson v. Pleasant Grove Health Care Center, 980 F.2d 692, 695 (11th Cir.1993) (citing Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.1984)). In particular, the Eleventh Circuit more strictly scrutinizes orders granting new trials where the basis of the order is that the verdict is against the weight of the evidence, as opposed, for example, to situations where there is new evidence. Rosenfield, 827 F.2d at 1498. In such a case, the Eleventh Circuit's review "will be extremely stringent to protect a party's right to a jury trial." Redd, 934 F.2d at 1215. Moreover, "to assure that the judge does not simply substitute his judgment for that of the jury," the Eleventh Circuit has noted "that new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great, not merely the greater, weight of the evidence." Redd, 934 F.2d at 1214 (citations omitted).

I. ARMOUR'S CLAIM THAT ADMISSION OF VIDEOTAPED DEPOSITION, COUPLED WITH REFUSAL TO BIFURCATE TRIAL, WAS PREJUDICIAL ERROR

Armour filed a motion in limine to exclude Jason's videotaped deposition on October 14, 1992, and raised the matter during the pre-trial conference on January 4, 1993. Trial began on January 11, 1993. Since at that time I had not yet ruled on Armour's motion in limine, Armour filed a motion to bifurcate the liability and damage issues of the trial. On January 11, 1993, I denied the motion to bifurcate, and on January 14, 1993, denied the motion to exclude the videotape. I moreover denied Armour's oral motion for reconsideration of the court's ruling regarding the videotape, made before the videotape was played for the jury, as well as Armour's subsequent motion for a mistrial, made after the videotape was admitted and shown to the jury.

Armour renews its claims that Jason's videotaped deposition was irrelevant, emotional, and highly prejudicial. Moreover, Armour argues that the videotape should not have been shown since, under Florida law, Jason's own pain and suffering from his AIDS infection were not at issue at trial. See Fla.Stat. §§ 768.16-27. Because only the mental pain and suffering of Jason's parents were compensable, Armour argues that it was error for the court to admit Jason's videotaped deposition and to refuse to bifurcate the trial as to liability and damages. For the reasons discussed below, I conclude that there is no merit to Armour's claims.

The videotape was merely a videotaped deposition of a declarant unable to be present or to testify at trial because of his death. See Fed.R.Evid. 804(a)(3). Further, the videotaped testimony admitted at trial was relevant to the issues to be decided by the factfinder. See Fed.R.Evid. 401, 402. As stated by the Florida appellate court in a wrongful death action to recover damages for the death of a child struck and killed in an accident, "The mental pain and suffering of the parents of the child are not to be measured by how the child might appear in the eyes of the appellate judges or of counsel." Coast Cities Coaches, Inc. v. Donat, 106 So.2d 593, 596 (Fla. 3d DCA 1958). "It was the effect in pain and suffering on the parents, of the loss of their own child, with which the jury was concerned, and which the jury had the opportunity and the duty under the statute to assess." Id.

Further, while the subject-matter of the videotape was of necessity emotional, it was not sensationalized. I note that courts have usually admitted into evidence even graphic pictures of injuries or dramatized "day-in-the-life" videotapes under the rationale that such pictures are "certainly admissible as a matter of discretion by the trial judge, if not as a matter of right." Holmes v. Black River...

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    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • June 19, 1995
    ...convinced, then, that none of our rulings to which the defendant now objects were erroneous. See, e.g., Walls v. Armour Pharmaceutical Co., 832 F.Supp. 1505, 1517 (M.D.Fla.1993) (finding that "it was perfectly proper for plaintiff's counsel to argue that defendant's principal medical witnes......
  • U.S. v. Beck, 94-3046
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 26, 1995
    ...jury to infer false notions. Moreover, graphic analogies alone do not constitute plain error. See, e.g., Walls v. Armour Pharmaceutical Co., 832 F.Supp. 1505, 1509 (M.D.Fla.1993), affirmed in part, reversed in part on other grounds, Christopher v. Cutter Laboratories, 53 F.3d 1184 (11th Cir......
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    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
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    ...in closing argument about an uncalled witness and giving a missing witness inference instruction). See, e.g., Walls v. Armour Pharm. Co., 832 F. Supp. 1505, 1516 (M.D. Fla. 1993) (rejecting identical missing witness rule argument for a new trial based upon similar closing argument because "......
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    • Defense Counsel Journal Vol. 67 No. 3, July 2000
    • July 1, 2000
    ...327 NEW ENG. J. MED. 419 (1992). See also Donahue et al., The Declining Risk of Post Transfusion, 327 NEW ENG. J. MED. 369 (1992). (5.) 832 F.Supp. 1505 (M.D. Fla. 1993). See also 832 F.Supp. (6.) Id. at 1513. See also Tufaro v. Methodist Hospital Inc., 368 So.2d 1219, 1221 (La. App. 1979) ......

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