In re Richardson-Merrell, Inc.

Decision Date17 September 1985
Docket NumberMDL No. 486.
Citation624 F. Supp. 1212
PartiesIn re RICHARDSON-MERRELL, INC. "BENDECTIN" PRODUCTS LIABILITY LITIGATION.
CourtU.S. District Court — Southern District of Ohio

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Stanley M. Chesley, Cincinnati, Ohio, Allen Eaton, Washington, D.C., George Kokus, Miami, Fla., Thomas Bleakley, Detroit, Mich., for plaintiff.

Frank C. Woodside, III, Cincinnati, Ohio, for defendant.

                                         INDEX
                                                                 Page Nos
                   I. Introduction ............................. 1215-1221
                  II. Asserted Errors — Miscellaneous
                      A1-A13 ................................... 1221-1228
                 III. Asserted Errors Involving Exculsion
                      of Evidence at Trial B1-B15 .............. 1228-1240
                  IV. Asserted Errors Regarding Discovery
                      C1-C6 .................................... 1240-1242
                   V. Asserted Errors Involving Evidence
                      Admitted at Trial D1-D4 .................. 1242-1243
                  VI. Asserted Error in Entering Judgment
                      on the Verdict E ......................... 1243-1244
                 VII. Asserted Error Concerning Jury Instruction
                      on Proximate Cause F ..................... 1244-1245
                VIII. Asserted Error Concerning Jury
                      Requested Jury Instruction
                      Regarding FDA G .......................... 1245
                  IX. Asserted Errors by Minority
                      Members of Lead Counsel Committee
                      H1-H3 .................................... 1245-1246
                   X. Asserted Errors Raised Only in
                      Plaintiffs Memorandum I1-I7 .............. 1246-1249
                  XI. Conclusion ............................... 1249
                 XII. Appendix A: Order No. 1066, Nov. 16, 1983
                XIII. Appendix B: Standard Juror Questionnaire
                 XIV. Appendix C: Bendectin Supplemental Juror
                                  Questionnaire
                  XV. Appendix D: Jury Instructions
                 XVI. Appendix E: Order No. 2862, Feb. 19, 1985
                XVII. Appendix F: In Re Bendectin Products
                                  Liability Litigation
                                  97 F.R.D. 481
                

I. INTRODUCTION

CARL B. RUBIN, Chief Judge.

This matter is before the Court on the Motions of plaintiff for Judgment Non Obstante Veredicto and for a New Trial, upon the responses thereto by defendant and upon a hearing held in open court on August 2, 1985.

There is an inherent problem of communication between trial courts and appellate courts. The trial judge's reasons for proceeding as he did are explained to a reviewing court in a secondhand fashion. It is only from the perceptions of the litigating parties that his analysis and reasoning may be determined. All too often, those perceptions are colored by adversarial positions and may or may not reflect accurate reasons for the action taken. It will be the purpose of this Order to deal not only with each issue raised by plaintiffs but also to indicate the thought process and the authority relied upon for the action taken.

The "Bendectin Litigation" in this Court began with an assignment of 47 cases by the Panel on Multi-District Litigation (Panel) in February of 1982. Eighteen months were allotted by the Court for pre-trial discovery. Five attorneys were selected as Lead Counsel in pre-trial order # 1 dated May 5, 1982. (Doc. no. 9A). Between May of 1982, and March of 1985, 582 additional cases were referred by the Panel and 557 cases were filed in the Southern District of Ohio.

A. In an effort to try all common issues of liability, the Court, on November 16, 1983, issued an Order (doc. no. 1066) (See Appendix A) consolidating all cases filed in the Southern District of Ohio, those filed in the Northern District of Ohio and referred by the Panel, and those referred by the Panel whose attorneys wished to be involved. No litigant who had not individually invoked the jurisdiction of this Court was required to participate in the common issues trial unless such litigant through his attorney specifically "opted in" (doc. no. 2277). Such "opt ins" were barred after March 1, 1985 (doc. no. 2866). All cases filed after that date in the Southern District of Ohio or referred by the Panel thereafter were excluded. At the cut-off date of March 1, 1985, 557 cases originating in the Southern District of Ohio and 261 cases which had opted in were thereafter subject to the decision of the jury.1

Trial was originally scheduled to begin in June of 1984. On June 11, 1984, a jury was impaneled. Before actual trial began, an offer of settlement in the total sum of $120 million for all Bendectin cases, both current and future, was made by Defendant Merrell-Dow Pharmaceuticals, Inc. (Merrell). The pendency of that offer caused the Court to conclude that trial should not begin and the impaneled jury was thereupon dismissed.

The conditions of such offer required a certification of a settlement class. That certification was reviewed by the United States Court of Appeals for the Sixth Circuit and deemed to be beyond the power of this Court. See In re: Bendectin Products Liability Litigation, 749 F.2d 300 (6th Cir.1984). This Court thereupon directed that trial begin on February 4, 1985, with a new jury.

The large number of cases involved required some unusual procedures. To assist counsel in their jury selection, the standard jury questionnaire form (Appendix B) was supplemented by an additional questionnaire (Appendix C) designed jointly by all counsel. The additional questionnaire was mailed to prospective jurors and returned before the beginning of trial. Based upon an examination of that second questionnaire and by agreement of counsel, some prospective jurors were excused. Those excused were persons employed by Merrell or its associated companies, or persons who were parents of children with birth defects.

Voir dire was conducted by the Court in accordance with the procedure outlined in Federal Rule of Civil Procedure 47(a) and supplemented with questions submitted by counsel. At the conclusion of the voir dire in open court, counsel and the Court retired to Chambers where seven challenges per side were exercised (T. 52-53). By agreement, six jurors were selected together with six alternates.

It should be noted that an offer had been made by the Court for selection of a jury with special qualifications. As early as May of 1984, it was obvious to the parties that in the first portion of the trial there would be technical and complex testimony by experts on the issue of causation. The Court discussed with counsel selecting a jury composed of persons knowledgeable in the field or a jury of those persons having the most formal education available in the jury panel.

Two terms were used for descriptive purposes. The jury of persons knowledgeable in the field was referred to as a "blue, blue ribbon jury" and those who had the greatest amount of formal education were referred to as a "blue ribbon jury." Neither of these concepts is recognized in the Federal Rules of Civil Procedure. Only by agreement of all parties could either have been used. The following excerpts from a conference held May 11, 1984 may be instructive. At page 9 of the transcript, the following appears:

THE COURT: If this is going to be a trial question that will rely on expert testimony, would you give any consideration to the the phrase Mrs. Ringenbach ("Law Clerk") coined which I think is very discriptive, the "Blue, Blue Ribbon Jury." A Blue, Blue Ribbon Jury would be composed of people knowledgeable in the field that you could agree upon. I don't care, 15, 20 and then we could use the device of a struck jury where you strike off those that you considered unacceptable.
Now, this has the advantage of people who would be knowledgeable in the field. It has a very distinct disadvantage that they may well have already made up their minds. I pass this on as a suggestion. (Emphasis added) Is there any conceivable interest in it?
DR. WOODSIDE: (Counsel for Defendant)
We would be interested.
MR. CHESLEY: (Counsel for Plaintiffs)
Your Honor, we would not be interested.

On page 12 of the transcript of such conference, the following appears:

THE COURT: If you will not accept a blue, blue ribbon jury, will you accept a blue ribbon jury?
MR. CHESLEY: No, Judge.... I want to explain our position.
THE COURT: I don't care what your position is.
MR. CHESLEY: I don't want to sit here and look like we are adamant.
THE COURT: You are not required. This is something that is separate and apart from the rules of the United States District Court and of this local court as well. If you say `I don't like the idea,' period.

The jury impaneled in February 1985, consisted of five women and one man. Three substitutions were ultimately made. Juror no. 3 became ill early on and was replaced. Her replacement, Mr. William O'Shaunnessy, discovered several weeks into trial that he was acquainted with the mother of defendant's counsel. When this matter was called to the Court's attention, Mr. O'Schaunnessy was excused. (T. 2591-2609; 2785-2786, February 27, 1985). Subsequently, Mr. O'Shaunnessy's replacement, a Mr. Guth, likewise became ill and he was replaced by Joyce Lee Beck.

The jury that deliberated consisted of five women and one man. The jurors averaged 44.75 years in age. Their education ranged from a failure to attend high school by one to the possession of a graduate degree by another. Specifically, one juror had no high school, one had quit high school at the end of the 11th grade, one had graduated from high school, one had graduated from high school and taken technical training as a practical nurse, one had a Bachelor of Arts Degree and one both a Bachelor's and a Master's Degree. The jurors were the parents of 13 children. Two of the jurors had none, two had one each, one had three and another had eight.

It is a supportable, although irrelevant, hypothesis that a jury of five women and one man called upon to deal with a product involved with pregnancy would be at least sympathetic to problems occasioned by such pregnancy.

The presentation of evidence required a total of 21 days. During...

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