Kociemba v. GD Searle & Co.

• Decision Date: 16 February 1989
• Docket Number: Civ. No. 3-85-1599.
• Citation: 707 F. Supp. 1517
• Parties: Esther R. KOCIEMBA and William J. Kociemba, Plaintiffs, v. G.D. SEARLE & CO., Defendant.
• Court: U.S. District Court — District of Minnesota

707 F. Supp. 1517

Esther R. KOCIEMBA and William J. Kociemba, Plaintiffs, v. G.D. SEARLE & CO., Defendant.

Civ. No. 3-85-1599.

United States District Court, D. Minnesota, Third Division.

February 16, 1989.

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Michael V. Ciresi, Roger P. Brosnahan, David L. Suggs, Roberta Walburn of Robins, Kaplan, Miller & Ciresi, Minneapolis, Minn., for plaintiffs.

Paul Strain and Elizabeth Honeywell of Venable, Baetjer & Howard, Baltimore, Md., and Madge S. Thorsen of Oppenheimer, Wolff & Donnelly, Minneapolis, Minn., for defendant.

MEMORANDUM AND ORDER

RENNER, District Judge.

INTRODUCTION

Before the Court are defendant G.D. Searle & Co.'s motions for judgment notwithstanding the verdict pursuant to Fed. R.Civ.P. 50(b)(1), and for a new trial pursuant to Fed.R.Civ.P. 59(a)(1). On December 1, 1988 the Court held a hearing on the motions and took them under advisement. The Court, at that time, also heard arguments on plaintiff's¹ post-trial motions. These motions will be addressed in a separate opinion.

Defendant G.D. Searle & Co. asserts numerous grounds in support of its motions. First, it asks the Court to enter JNOV on plaintiff's intentional misrepresentation claim. Defendant argues that plaintiff presented no evidence of any intentional misrepresentation by defendant.

Second, defendant seeks JNOV on plaintiff's claim under Minn.Stat. § 325F.67 (False Statement in Advertising) on the grounds that plaintiff presented no evidence of a written advertisement by defendant. Defendant argues in the alternative that it is entitled to a new trial because the Court erred in allowing plaintiffs' attorneys to make references during trial to advertisements which defendant had placed in medical journals, but which were not read by plaintiff's physician.

Third, defendant asserts that it is entitled to JNOV on plaintiff's failure to test claim. Defendant argues that there is no independent cause of action for negligent failure to test under Minnesota law. Defendant argues in the alternative that it is entitled to a new trial because the Court erroneously instructed the jury that under Minnesota law a manufacturer has a continuing duty to test.

Fourth, defendant argues that it is entitled to a new trial because the Court improperly refused to allow defendant to challenge the credibility of one of plaintiffs' key witnesses.

Fifth, defendant seeks a new trial on the grounds that United States Magistrate Janice M. Symchych exceeded her authority under 28 U.S.C. § 636 (The Magistrate Act) in the course of accepting the jury's verdict. Additionally, defendant argues that the Magistrate's actions violated Article III of the United States Constitution, as well as defendant's due process rights and Seventh Amendment right to trial. Defendant also claims that the Magistrate improperly coerced the jury into reaching a verdict.

Sixth, defendant claims that it deserves a new trial because the jury's award of $7 million in punitive damages is excessive and not supported by the evidence. Defendant asks in the alternative that the Court reduce the punitive damage award. Defendant also claims that the award violates the 8th Amendment to the United States Constitution, and Article I, § 5 of the Minnesota Constitution, as well as the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, § 7 of the Minnesota Constitution.

Finally, defendant claims that the Court should order a new trial because of juror misconduct. Defendant has presented evidence that, contrary to the Court's instructions, members of the jury were exposed to certain extraneous materials. Defendant claims that these materials prejudiced the jury.

FACTS

Esther and William Kociemba brought suit against G.D. Searle & Co. ("Searle") in 1985, alleging that Searle's Cu-7 intrauterine contraceptive device ("IUD") had caused Esther to become infertile. Plaintiff based her claim on numerous theories of liability, including defective design, defective manufacture, failure to warn, failure to test, intentional misrepresentation, and false advertising. Plaintiff's husband claimed loss of consortium. Trial began on May 16, 1988. The trial lasted for approximately 3½ months,² and involved extensive expert medical testimony and hundreds of exhibits.

At the conclusion of the evidence, the Court denied defendant's motion for a directed verdict. On September 9, 1988, after ten days of deliberations, the jury informed the Court that it had reached a verdict.

Because the Court was unavailable at the time, United States Magistrate Janice M. Symchych received the verdict. Because defendant has various claims relating to the Magistrate's receipt of the verdict, the Court will set out at length the events that transpired on the afternoon of September 9, 1988.

The jury entered the courtroom at 2:45 p.m. Magistrate Symchych asked the jury foreman if the jury had reached a verdict. The foreman responded that it had. The foreman presented the special verdict form, which contained 17 questions, to the Magistrate. Upon reviewing the form Magistrate Symchych stated:

Members of the jury, I see that there are not answers to each and every one of the interrogatories on the verdict form and that there have been answers supplied only for interrogatory numbers 9, 10, 11, 14, 15, 16 and 17. I'm going to ask you to adjourn to the deliberation room and formally fill in the remaining interrogatories that haven't been answered. When you have completed that, you can let the bailiff know and we will come to court at that point in time.

Searle's counsel then asked for permission to approach sidebar. Magistrate Symchych instructed counsel to await the sidebar until after the jury had left. Once the jury had left the courtroom, Magistrate Symchych held a sidebar conference. Searle's counsel objected to the Magistrate sending the jury back to the jury room to fill in the unanswered questions on the special verdict form. Searle's counsel moved for a mistrial, and asked the Magistrate to declare the jury hung and dismiss it.

Magistrate Symchych responded that because the foreman of the jury had indicated that the jury had reached a verdict, she would recommend³ to Judge Renner that the motion be denied. Searle's counsel then renewed his mistrial motion on the additional ground that the Magistrate's direction to the jury implied that they could only answer the questions left blank, and could not reconsider the questions already answered. The court was then recessed.

Approximately ten minutes after the jury had retired to complete the verdict form, the Magistrate received word that it had in fact completed the verdict form. (Symchych aff. at 2). The jury did not immediately return to the courtroom, however, because the Magistrate was awaiting a phone call from the Court. The Court called thereafter, and instructed Magistrate Symchych that if the jury returned with a completed special verdict form she was to accept it and discharge the jury. (Symchych aff. at 2).

The court was then reconvened. The Magistrate again asked the foreman if the jury had reached a verdict. He responded "Yes, ma'am, now we have." The clerk then read the verdict into the record.

Searle then requested that the jury be polled. Each juror stated that the verdict was his or her own. Searle again moved for a mistrial at sidebar. Magistrate Symchych stated that she would recommend that the motion be denied. The Magistrate then discharged the jury.

The jury found that Searle had not been negligent in either designing or manufacturing the Cu-7 and that plaintiff William Kociemba had not suffered loss of consortium. The jury also found that Searle had negligently failed to warn of risks associated with the Cu-7, that Searle had negligently failed to test the Cu-7, that Searle had made intentional misrepresentations about the Cu-7, and that Searle had violated Minn.Stat. § 325F.67 (False Statement in Advertising). The jury also found that these actions by Searle had caused plaintiff's injuries.

The jury awarded plaintiff $1.75 million in compensatory damages ($750,000 for pain and disability, and $1 million for emotional distress).⁴ The jury also assessed $7 million in punitive damages against Searle.

DISCUSSION

Federal Rule of Civil Procedure 50(b) states in part:

Not later than ten days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict.... A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.

A motion for entry of judgment notwithstanding the verdict can be granted "only where the evidence points all one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party." Jacobson v. Pitman-Moore, Inc., 582 F.Supp. 169, 174 (D.Minn.1984) quoting Kayser v. Rockwell Graphic Systems, Inc., 666 F.2d 1233, 1235 (8th Cir.1982) (emphasis in original). The trial court must view the evidence in the light most favorable to the prevailing party and must assume that the jury resolved all conflicts in the evidence in favor of the prevailing party. Jacobson, 582 F.Supp. at 174, citing Harris v. Pirch, 677 F.2d 681, 683 (8th Cir.1982).

Federal Rule of Civil Procedure 59(a)(1) states:

A new trial may be granted to all or any of the parties and on all or part of the issues 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.

I. Intentional Misrepresentation.

Plaintiff's physician, Dr. Scanlan, testified at trial that Searle's representatives made two pertinent statements to him concerning the Cu-7. First, the doctor testified that...