Potter v. Eli Lilly and Co.

• Citation: 926 S.W.2d 449
• Decision Date: 23 May 1996
• Docket Number: No. 95-SC-580-MR,95-SC-580-MR
• Parties: Hon. John W. POTTER, Judge, Jefferson Circuit Court, Appellant, v. ELI LILLY AND COMPANY, Dista Products Company, Joyce Fentress, Individually and as Executrix of the Estate of Kenneth Fentress, Roma Jean Barger, Individually and as Executrix of the Estate of Richard Owen Barger, Sr., Angela Bowman, Douglas Bowman, Michael P. Campbell, Forrest Conrad, Saundra Conrad, Linda Ganote, Individually and as Executrix of the Estate of William Spencer Ganote, Paul Gnadinger, Charles M. Gorman, Stanley Hatfield, Darlene Hatfield, William Hoffman, Janis G. Mudd, Administratrix of the Estate of James G. Husband, Sr., Andrew C. Pointer, Shirley Pointer, Juanita Sallee, Individually and as Administratrix and Personal Representative of Paul Sallee, Gordon L. Scherer, Sr., David C. Seidenfaden, Jerilyn M. Seidenfaden, John Edwin Stein, Linda Sue Stein, Jacquelyn Y. Tronzo and Tracey L. Needy Leet, Co-Administrators of the Estate of Sharon L. Needy, Paula Warman, David Warman, Maryla White, Individually and as Administratrix of the Estate of Lloyd Ray White, and Sarah Wible, Individually and as Executrix of the Estate of James P. Wible, Sr., Appellees.
• Court: United States State Supreme Court (Kentucky)

Page 449

926 S.W.2d 449

Hon. John W. POTTER, Judge, Jefferson Circuit Court, Appellant, v. ELI LILLY AND COMPANY, Dista Products Company, Joyce Fentress, Individually and as Executrix of the Estate of Kenneth Fentress, Roma Jean Barger, Individually and as Executrix of the Estate of Richard Owen Barger, Sr., Angela Bowman, Douglas Bowman, Michael P. Campbell, Forrest Conrad Saundra Conrad, Linda Ganote, Individually and as Executrix of the Estate of William Spencer Ganote, Paul Gnadinger Charles M. Gorman, Stanley Hatfield, Darlene Hatfield William Hoffman, Janis G. Mudd, Administratrix of the Estate of James G. Husband, Sr., Andrew C. Pointer, Shirley Pointer, Juanita Sallee, Individually and as Administratrix and Personal Representative of Paul Sallee, Gordon L Scherer, Sr., David C. Seidenfaden, Jerilyn M. Seidenfaden, John Edwin Stein, Linda Sue Stein, Jacquelyn Y. Tronzo and Tracey L. Needy Leet, Co-Administrators of the Estate of Sharon L. Needy, Paula Warman, David Warman, Maryla White, Individually and as Administratrix of the Estate of Lloyd Ray White, and Sarah Wible, Individually and as Executrix of the Estate of James P. Wible, Sr., Appellees.

No. 95-SC-580-MR.

Supreme Court of Kentucky.

May 23, 1996.

Rehearing Denied Aug. 29, 1996.

Richard Hay, Somerset, John W. Potter, Jefferson Co. Hall of Justice, Louisville, for Appellant.

Irvin D. Foley, Louisville, Paul L. Smith, Dallas, TX, Edward H. Stopher, Boehl Stopher & Graves, Louisville, Lively M. Wilson, John L. Tate, Stites and Harbison, Louisville, John F. Brenner, McCarter & English, Newark, NJ, Lawrence J. Myers, Freeman & Hawkins, Atlanta, GA, Frank P. Doheny, Jr., Hirn, Doheny, Reed & Harper, Louisville, for Appellees.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which granted a Writ of Prohibition against Jefferson Circuit Judge John W. Potter from conducting a hearing to determine whether the judgment entered in the so-called Prozac case styled "Joyce Fentress, et al v. Eli Lilly and Company, Civil Action No. 90-CI-6033" was correct and reflects the truth.

The issue in this case is whether the trial judge can conduct a hearing to determine if the judgment rendered is true and correct.

The precise legal issue in this case arose after a jury had returned a verdict on December 12, 1994 and the circuit judge entered a judgment on January 25, 1995 in which he ordered and adjudged that the claims against the defendants be dismissed with prejudice. No post-judgment motion was filed, and the appeal time pursuant to CR 73.02(1)(a) expired on February 24, 1995, without an appeal being filed. The circuit judge then filed his own motion pursuant to CR 60.01 on April 19, 1995 stating that the preamble to the judgment entered on January 25 suggested that the dismissal was based solely on a jury verdict but that he now believes it was more likely than not that the case had been settled. The circuit judge scheduled a hearing for any party to show cause why the judgment should not be amended to read, after amendment, that the case was "dismissed with prejudice as settled."

Some factual background must be presented in order to understand the significance of this case. In 1989, Joseph R. Wesbecker, a disgruntled former employee, entered the Standard Gravure Printing plant in Louisville and shot and killed eight people and seriously wounded twelve others. The estates of the eight decedents and twelve of the injured persons filed lawsuits against various defendants including Eli Lilly Company. All of the defendants other than Lilly settled or were dismissed prior to the trial which began on September 26, 1994.

The trial was trifurcated so that the only issue to be decided by the jury was whether the anti-depressant drug Prozac manufactured by Lilly was unreasonably dangerous and defective and whether it caused Wesbecker to kill or injure the plaintiffs. The trial judge reserved the issues of compensatory and punitive damages for future trials. The trial itself lasted 47 days during which 75 live witnesses testified, 22 depositions were presented to the jury and 411 exhibits were introduced into evidence. When the trial of this case started, there were approximately 160 other Prozac cases pending against Lilly. This case was the first to go to trial.

An important element in the proof presented by Lilly was that Prozac, and its U.S. package insert, had been approved by the Federal Food and Drug Administration. The plaintiffs attempted to counter this evidence by demonstrating that Lilly had failed to accurately report test results, including the German government tests, to the FDA. Before trial, the trial judge had excluded as irrelevant and unduly prejudicial evidence that Lilly in 1985 had been sanctioned for its failure to report to the FDA adverse incidents resulting from Oraflex, an arthritis drug that had been taken off the market. Both Lilly, as a corporation, and its chief medical officer had pled guilty to violations of multiple criminal counts of various federal statutes and withholding evidence adverse to the drug, including the deaths, from the FDA.

During the presentation of the evidence by Lilly, the plaintiffs repeatedly asked the trial judge to rule that Lilly had "opened the door" to the Oraflex evidence through witnesses who had described Lilly's reputation for reporting adverse incidents to the FDA. This trial issue was extensively argued. The adversarial encounter took more than a day from the trial. The trial judge then reversed his prior ruling and held that the Oraflex evidence would be admitted. On the following day, the plaintiffs closed their rebuttal evidence without introducing the results of their victory in regard to the evidentiary ruling. The circuit judge immediately requested an off-the-record discussion where he asked "whether money had changed hands" or words to that effect. Counsel for the parties assured the court that no settlement had been reached. Counsel for the appellees dispute this sequence of events as recounted in Judge Potter's affidavit. However, we find the record devoid of any information that indicates that the trial judge was informed in any way that any settlement had been reached.

A careful and thoughtful examination of the entire record in this case indicates that some sort of settlement was reached before the case was submitted to the jury. It certainly can be argued that there was a great lack of candor to the trial court in regard to the settlement agreements.

As noted earlier, the case was submitted to the jury which returned a verdict finding that Lilly was not at fault. The circuit judge then entered a judgment which dismissed the claims with prejudice. Approximately three months later, on April 19, 1995, the trial judge issued a sua sponte motion pursuant to CR 60.01 to correct an alleged clerical mistake in the judgment. The circuit court ordered that any party may appear to show cause why the original judgment should not be amended. The judge also issued subpoenas for counsel for the plaintiffs and for Lilly, compelling them to appear and testify in behalf of the court's desire to enter the corrected judgment. The circuit court also issued a subpoena for a law firm, counsel for Lilly, requiring it to produce documents requested by the court. At this point, the parties united in the present action.

The Court of Appeals unanimously granted the request of the parties for a Writ of Prohibition preventing the circuit judge from proceeding with this motion pursuant to CR 60.01 and from enforcing any of the subpoenas which had been issued. The Court of Appeals determined that the circuit judge had lost jurisdiction to reopen the judgment.

We must observe that a Writ of Prohibition is an extraordinary remedy and is generally issued only when the court in question is proceeding or is about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or where it is about to act incorrectly, although it is within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice and irreparable injury would result to the petitioner if the court in question should so act. Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981); Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).

We are well aware that CR 60.01 allows a trial court to correct clerical mistakes in its judgments and errors therein arising from an oversight or omission at any time on its own initiative. We do not believe that CR 60.01 invests the trial court with either jurisdiction or authority to make substantive changes in a judgment. The effect of the rule is limited to mistakes that are clerical in nature.

In this case, it does not appear that CR 60.02 is applicable. Although it is not abundantly clear, the interpretations of the rule indicate that CR 60.02 is only available to a party or his legal representative. The trial judge is certainly not a party to the litigation originally. See Wright, Miller and Kane, Federal Practice & Procedure: Civil 2nd § 2852 at 235; Jude v. Morwood Sawmill, Inc., Ky.App., 726 S.W.2d 324 (1987).

The crux of the argument presented by Judge Potter is that a trial court has the right and duty to see that its judgments accurately reflect the truth and that the trial court has the inherent authority to determine whether its judgment does so reflect the truth. Lilly argues that the trial judge does not have inherent power to modify a...