Helminski v. Ayerst Laboratories, a Div. of American Home Products Corp.

• Decision Date: 25 June 1985
• Docket Number: No. 83-1726,83-1726
• Citation: 766 F.2d 208
• Parties: 18 Fed. R. Evid. Serv. 321 Catherine and Frank HELMINSKI, as Next Friends of Minor Hugh Helminski, Plaintiffs-Appellants, v. AYERST LABORATORIES, A DIVISION OF AMERICAN HOME PRODUCTS CORP., a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 208

766 F.2d 208

18 Fed. R. Evid. Serv. 321

Catherine and Frank HELMINSKI, as Next Friends of Minor Hugh Helminski, Plaintiffs-Appellants, v. AYERST LABORATORIES, A DIVISION OF AMERICAN HOME PRODUCTS CORP., a Delaware Corporation, Defendant-Appellee.

No. 83-1726.

United States Court of Appeals Sixth Circuit.

Argued Feb. 13, 1985.

Decided June 25, 1985.

Thomas H. Bleakley, Brian J. McKeen (argued), Detroit, Mich., for plaintiffs-appellants.

Konrad D. Kohl (argued), Michael L. Updike, Altero J. Alteri, Farmington Hills, Mich., for defendant-appellee.

Before ENGEL and KEITH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Plaintiffs-appellants Catherine and Frank Helminski, as Next Friends of their minor son, Hugh, brought this products liability suit against defendant-appellee Ayerst Laboratories. The Helminskis contended that Hugh's in utero exposure to Fluothane, ¹ a surgical anesthetic manufactured by Ayerst, resulted in injury to his developing nervous system. Specifically, they alleged that Ayerst Laboratories was negligent in testing and marketing Fluothane without warning of potential injury to a fetus, breached express and implied warranties that the product was safe for use by operating room personnel in the first trimester of pregnancy, committed fraud and deceit in marketing Fluothane, and should be held strictly liable for marketing the product. The essence of Ayerst's defense was that Hugh's condition was not the result of in utero exposure to its product. After a six-day trial, the jury returned a verdict of no cause of action. The district court denied the Helminskis' subsequent motion for a new trial. From this ruling, the Helminskis appeal.

Catherine Helminski was a certified registered nurse anesthetist. During the entire term of her pregnancy with Hugh, she was employed full-time administering anesthesia to patients undergoing surgery. Fluothane was used in over 90% of the 148 surgical procedures in which Mrs. Helminski administered anesthesia. Both parties agree that during the course of the pregnancy Mrs. Helminski was exposed to Fluothane, although they disagree as to the extent of such exposure.

Born in September 1966, Hugh began to exhibit signs of developmental retardation at an early age. For example, he had not yet begun to speak as he neared the age of three. Eventually, physicians determined that Hugh was autistic. As a result of this condition, Hugh requires 24-hour a day care; he does not speak, is not toilet trained, and has an extremely low IQ. Hugh's arrested neurological development is permanent and irreversible.

The Helminskis raise three issues on appeal. First, they contend that certain references by the trial judge and defense counsel concerning Fluothane's alleged claim-free history were improper and prejudicial. Second, the Helminskis challenge the district court's decision, which was rendered after they had presented most of their witnesses, to bifurcate the proceedings into separate trials on liability and damages. Finally, the Helminskis argue that Hugh's exclusion from the courtroom during the liability portion of the proceedings infringed upon his Seventh Amendment right to a jury trial and his Fifth Amendment right to due process of law.

I.

The trial court's introductory remarks to the jury, made during voir dire, included the following:

The defendant contends that this is the first case in which it is claimed that exposure by a pregnant woman to this particular drug in question ... resulted in the birth of a child suffering injury.

Similarly, in his opening statement, counsel for Ayerst indicated that the case was the first "anyplace" in which a party alleged that a pregnant woman's exposure to Fluothane in the operating room resulted in "birth to an autistic child." The Helminskis' counsel failed to object to either statement. On appeal, the Helminskis assert that such comments were prejudicial and warrant a new trial.

A party may not assert as error the introduction of evidence unless a timely objection is made. Fed.R.Evid. 103(a)(1); see Kokesh v. American Steamship Co., 747 F.2d 1092, 1094-95 (6th Cir.1984). Although a court may review the introduction of evidence in the absence of an objection if it constitutes plain error and affects a party's substantial rights, Fed.R.Evid. 103(d), an important consideration in determining whether appellate review is appropriate is the number of times the allegedly improper evidence was elicited without objection, see United States v. Martin, 757 F.2d 770, 771 (6th Cir.1985) (review under plain error rule discretionary).

In this case, counsel for the Helminskis failed to object to the statements of both the trial judge and Ayerst's counsel. Moreover, on two occasions defense counsel asked expert witnesses if they were aware of any other allegations that Fluothane's use resulted in birth defects; the record discloses that no objections were made. In light of the complete failure of counsel to bring before the trial court his objection on this matter, we do not believe that he perceived the issue as one which affected the substantial rights of his client. Cf. Wainwright v. Witt, --- U.S. ----, ----, ----, 105 S.Ct. 844, 858, 859 n. 4, 83 L.Ed.2d 841 (1985) (Stevens, J., concurring). Nor do we believe, as plaintiffs' counsel asserts on appeal, that his failure to object should be excused because he feared that an objection would emphasize the error before the jury. While under limited circumstances an objection might only exacerbate an error in admission of testimony, Brown v. Walter, 62 F.2d 798, 799-800 (2d Cir.1933), counsel is generally not excused from bringing an objection to the court's attention, see Bryant v. Consolidated Rail Corp., 672 F.2d 217, 218-19 (1st Cir.1982). Any other general rule would eviscerate Fed.R.Evid. 103(a)(1). We conclude that, in fact, there was no reason to believe that a timely objection would emphasize Fluothane's alleged claim-free history before the jury. Accordingly, the Helminskis have failed to preserve for review their challenge to the comments related to Fluothane's alleged claim-free history.

II.

Following the testimony of the Helminskis' final expert witness, counsel announced his intention to call Hugh as a witness despite a previous agreement to present Hugh to the jury only in a videotape. ² Ayerst objected, arguing that Hugh's condition had already been described graphically and, moreover, that there was no dispute concerning the nature of his problems. Essentially, Ayerst perceived that Hugh's presence in the courtroom would prejudice the jury against its case. The Helminskis noted that Hugh would be present in the courtroom for only approximately five minutes to allow the jury to "visualize" him. Further, the Helminskis' attorney asserted that, as a civil litigant, Hugh had a right to be present in the courtroom. In discussing with the parties the possibility of bifurcating the proceedings at this juncture, the court recognized that the case should have been bifurcated, if at all, at an earlier time. Nevertheless, the court reasoned that bifurcation was necessary to prevent Ayerst from being prejudiced. Once the court ruled that the trial was to proceed solely on the issue of liability, it concluded that Hugh's presence would not be relevant in determining whether in utero exposure to Fluothane resulted in damage to his nervous system. Thus, the court ruled that Hugh could not be brought into the courtroom during the liability phase of the proceedings.

Although we recognize that the decision to bifurcate the proceedings and the decision to exclude Hugh from the liability phase are closely related, we believe that each issue warrants separate discussion. Accordingly, we review initially the district court's decision to bifurcate the proceedings.

A trial court may exercise its discretion to order separate trials on the issues of liability and damages in order to reduce the possibility that the jury will be prejudiced. See, e.g., In re Beverly Hills Fire Litigation, 695 F.2d 207, 216 (6th Cir.1982); Dewald v. Minster Press Co., 494 F.2d 795, 798 (6th Cir.1974); Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir.1973). Bifurcation of proceedings into separate trials concerning liability and damages is appropriate when "the evidence pertinent to the two issues is wholly unrelated" and the evidence relevant to the damages issue could have a prejudicial impact upon the jury's liability determination. 9 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2390 (1971). In our view, since the issues of liability and damages in this case were not so inseparable as to require one unified trial to resolve them both, see Gasoline Products Co., Inc. v. Champlin Refining Co., 283 U.S. 494, 499-500, 51 S.Ct. 513, 514-515, 75 L.Ed. 1188 (1931), the district court would not have abused its discretion by bifurcating these proceedings at the outset. However, the Helminskis argue that the district court abused its discretion in separating the issues of liability and damages "at the virtual close of plaintiff's proofs." We disagree.

The late bifurcation of a trial does not constitute reversible error in the absence of a showing of prejudice. See In re Beverly Hills Fire Litigation, 695 F.2d 207, 216 n. 13 (6th Cir.1982). In this case, the Helminskis have failed to establish that any prejudice occurred due to the lateness of the bifurcation order; in fact, the timing of the order may have been beneficial to their case since much of the testimony presented prior to the bifurcation order was not relevant to liability. For example, one of the Helminskis' expert witnesses testified solely concerning Hugh's condition, focusing on his severe mental retardation. This testimony could only have aided the Helminskis' case by demonstrating the severity of Hugh's condition when such evidence was not relevant to the issue of whether Fluothane...