Welch v. Wyeth et al
ORDER denying 319 Plaintiff's Rule 59 Motion for New Trial. Signed by Judge Billy Roy Wilson on 10/24/2012. (thd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
PREMPRO PRODUCTS LIABILITY
WYETH, et al.
MDL Docket No. 4:03CV01507-BRW
Pending is Plaintiff’s Rule 59 Motion for New Trial (Doc. No. 319). Defendants have
responded.1 Plaintiff alleges three grounds for a new trial: (1) inappropriate contact between the
bailiff and jury; (2) juror misconduct, i.e., reading and discussing newspaper accounts of the trial
before reaching a verdict; and (3) the admission of “inadmissible hearsay.”
A hearing was held on October 19, 2012, and telephone conferences were held on
October 22, 2012 with the two jurors who were unable to attend the hearing.
This case is one of thousands in which the plaintiffs allege that the defendants’ hormone
replacement therapy drugs caused their breast cancer. Primarily, the claims are based on a
failure to warn theory. Six cases (including this one) have been tried in the Eastern District of
Arkansas, and many more have been tried in other federal and state courts across the United
States. Following a two week jury trial in this case, the jury found, on August 29, 2012, that
Defendants failed to adequately warn about the known or knowable risks of their drugs, but that
Doc. No. 321.
Plaintiff did not prove that this failure to warn caused her injuries.2 A judgment was entered for
On August 30, 2012, Juror Michael Hill called my office and I spoke with him briefly. I
relayed the conversation to counsel of record in an email that afternoon. The email reads:
Mr. Michael Hill, juror number 12, called me this morning to report something
that is bothering him. He told me that on the first day of trial the bailiff remarked
to the jurors (at some point -- I don’t recall exactly when) that he had heard
testimony of this nature before. Mr. Hill did not remember the exact words, but
he said he got the idea that this was not the first trial in the Eastern District of
Arkansas involving these issues.
He said that this bothered him a little, but he didn’t think too much of it at the
Yesterday, after the verdict had been returned and the eleven jurors were waiting
in the jury room for me to come visit with them, one or more jurors indicated that
they knew there had been previous litigation regarding the issues they had just
After I asked the jurors about things we might do to make the courthouse more
friendly for future jurors, one juror asked me if I had tried cases similar to this
in the past. I told them that I had and that this was the sixth trial. Another juror
then asked me how the others came out, and I told them.
I try to avoid talking about the case itself, but I felt it was fair to answer their
Of course, in due time, I will look into what, if anything, the bailiff said to the
jurors about previous trials (I will go through normal channels to do this).
Meanwhile, however, I wanted to bring this matter to your attention as soon as
My initial reaction is to do nothing except, in due course, to look into the bailiff
matter. Questions by both sides during the course of this trial made it clear that
Doc. No. 311.
Doc. No. 336.
there had been other trials involving breast cancer and HRT -- involving some
of the same evidence and witnesses these jurors were seeing and hearing.
Accordingly, I see no reason to develop the matter further, but I am putting this
before you to let you react if you deem it appropriate.
Please let me know, as soon as possible, whether you want me to take this matter
further insofar as the verdict is concerned.
I look forward to hearing from you. I think it best to keep this on a confidential
basis at this point in time.
In a response email, Defendants indicated that they agreed with my proposed course of
action. Plaintiff responded:
Plaintiffs are concerned by the Court’s e-mail advising of the issue involving the
bailiff’s communications with the jurors during trial. We agree with the Court’s
decision to conduct an inquiry into this matter and look forward to the results of
that inquiry. Plaintiffs reserve any and all options for post-trial remedies,
whether based on the Court’s inquiry or independent of the results of the
After cerebrating on the issue, I sent the following email to counsel on September 6, 2012:
Based on my conversation with the juror, I am of the initial opinion that I need
to take no action other than bringing this up with the other members of the court,
which will probably result in a conference with all CSOs about conversations
The juror indicated that the bailiff did not say anything about the results in any
As I stated earlier, the jurors knew that there had been several other trials in the
MDL/Prempro cases because of evidence adduced by counsel for both parties.
Doc. No. 329-1.
You are free to do whatever you wish with the information I have provided. As
stated, I do not believe that any “corrective action” is in order, other than the
“schooling” of the CSOs mentioned above.
As has been customary in these cases, Defendants filed a Motion for Leave to Speak
With Jurors on September 6, 2012.7 The motion was granted the next day.8
On September 23, 2012, Plaintiff filed a Rule 59 Motion for New Trial asserting that a
new trial should be granted because a bailiff provided the jurors with “extraneous prejudicial”
information; there was juror misconduct; and “inadmissible hearsay” was admitted during trial.
In support of her allegations regarding the bailiff and juror misconduct, Plaintiff attached the
affidavit of juror Michael Hill. The affidavit reads:
I, Michael Hill, hereby declare that all of the following are true, to the best of my
personal knowledge and based upon information and personal belief.
I served as Juror Number 12 in the hormone therapy case of Mrs. Welch that took
place before Judge Wilson during the month of August 2012. I was concerned by
some things that occurred during my jury service. I thus called Ms. Littlepage’s
office on the afternoon of August 29, 2012 (after I had been released from jury duty).
I left a message for her to return my call but no-one called me back. I then called the
court and explained that there was a conversation that took place between the bailiff
and members of the jury that I felt was inappropriate. Ms. Natasha Hanberry of
Ms. Littlepage’s office called me back on September 7, 2012. She apologized for not
contacting me earlier but explained that no-one could return my call until the court
entered an order permitting contact with jurors. I related to Ms. Hanberry the
• On the first day of trial, a female bailiff told members of the jury that this
was going to be a long trial with a lot of boring evidence. She said that she
had already sat through four or five of these trials and only one trial was won.
Members of the jury discussed what the bailiff had said after she left.
Doc. No. 317.
Doc. No. 318.
• During the trial, there was a discussion amongst members of the jury
regarding a newspaper article that ran in the Little Rock newspaper during
the second week of the trial about the case. I believe the article detailed the
number of previous losses.
• After we returned our verdict, some of the jurors once more discussed that
only one previous trial had been won in Arkansas. Later, Judge Wilson came
to the jury room and spoke with us. A female juror who had previously
discussed the outcome of the prior trials asked Judge Wilson directly about
the previous trials and how many had been won. I was puzzled by her
question since she already knew the answer to her question and had discussed
it with the other jurors.9
On October 9, 2012, I scheduled an in-court hearing to discuss the points raised by
Plaintiff’s Motion for New Trial.10 The jurors and bailiff were to be witnesses. In the Order, I
set out the ground rules for the hearing: (1) F.R.E. 606 would govern; (2) the parties could
submit proposed questions for the jurors and bailiff; and (3) I would ask all the questions.
In an October 16, 2012 filing, Plaintiff set out several objections to the proposed hearing
and process leading up to the hearing.11 Plaintiff also appeared to indicate that I should recuse.
Based on some hefty assumptions in Plaintiff’s Notice of Objections, Plaintiff suggested
that I should recuse from hearing this matter. Plaintiff’s primary argument is that because I had
“obtained information from Mr. Hill” I should allow another judge to consider the issues.12 As I
pointed out in my August 30, 2012 email and in my October 17, 2012 Order addressing
Doc. No. 319-3.
Doc. No. 323.
Doc. No. 327.
Doc. No. 338.
Plaintiff’s objections,13 Mr. Hill called my office and the call was forwarded to me (I do not
screen my calls). Mr. Hill conveyed his concerns, and I listened. When the call was over, I
emailed the information to the parties14 and asked for suggestions on how to proceed.
Plaintiff’s position is that the “appropriate approach [was] to stop the conversation [and]
to immediately convene a hearing so that these things are in the open.”15
With all due immodesty, I must say that I think the issues were handled appropriately and
Plaintiff’s primary objections were not supported by the record.
Bailiff’s Comments to Jury
After the jury was seated and returned to the jury room, the bailiff working with the jury
gave the jurors a “briefing” in which she told the jurors about the day-to-day procedures of being
a juror, e.g., where to meet each day; breakfast is provided in the morning; where to park; how to
get a bathroom break during trial; etc. Apparently this is customary. In this instance, the bailiff
also re-emphasized the importance of paying attention and not being afraid to ask for breaks,
because the trial could be long and the evidence could be boring.16
Relying on juror Michael Hill’s affidavit, Plaintiff asserts that a “Court Security Officer
told the jury on the first day of the trial that she had sat through four or five trials, it was going to
be a long trial with a lot of boring evidence and the plaintiff had only won one of the previous
Doc. No. 329.
See Doc. No. 329-1.
Doc. No. 338.
trials. It is also clear that the jury discussed the Court Security Officer’s comments after she
left.”17 Plaintiff contends that these comments were “unduly prejudicial to Plaintiff.”18
Plaintiff’s assertion that the bailiff informed the jurors that “plaintiff had only won one of
the previous trials” is incorrect. First, Mr. Hill’s affidavit referred only to the fact that “only one
trial was won”19 -- there was no reference as to who had won. Second, at the hearing when I
suggested to Mr. Hill that he’d previously indicated that the bailiff told the jury that “plaintiff
had only won one of [the previous trials],” he said that my statement was “not quite accurate.”20
Later, he unequivocally testified that the jurors never were aware of which party had won or lost
previous trials. During the hearing, every other juror testified that the bailiff made no reference
to the results of previous trials.
Though the better practice would have been for the bailiff not to have mentioned earlier
trials, the fact that she did not reference the results of the earlier trials makes it impossible for
either party to claim a potential prejudice. Furthermore, as I noted in my August 30, 2012 email,
“[q]uestions by both sides during the course of this trial made it clear that there had been other
trials involving breast cancer and HRT -- involving some of the same evidence and witnesses
these jurors were seeing and hearing.”21
Additionally, the bailiff’s comments about a long trial and boring evidence were nowise
prejudicial. It appears to me that she was making the point that the jurors should do their best to
Doc. No. 319.
Doc. No. 319-3.
Doc. No. 338.
Doc. No. 329-1.
pay attention to the testimony and should feel free to request breaks if they noticed their attention
was starting to lag -- based on the jurors’ post trial testimony, that’s exactly how her message
“The party attacking the verdict always has the full burden of proving that the jury was
exposed to extraneous prejudicial information or outside influence.”22 “In a civil case, the
exposure of jurors to materials not admitted into evidence mandates a new trial only upon a
showing that materials are prejudicial to the unsuccessful party.”23 “The district court must
consider relevant testimony and other evidence as to what occurred to determine ‘whether there
is a reasonable possibility that the communication altered the jury’s verdict’ . . . .”24
Based on the totality of the evidence, there is no reasonable possibility that the jury’s
verdict was altered by the bailiff’s comments to the jury that the trial could be long and boring or
that there were previous trials.
Regarding the newspaper article, Mr. Hill’s affidavit reads: “During the trial, there was a
discussion amongst members of the jury regarding a newspaper article that ran in the Little Rock
newspaper during the second week of the trial about the case. I believe the article detailed the
number of previous losses.”25 Plaintiff contends that this “misconduct further exposed the jury to
the taint of the extrinsic evidence concerning the number of previous trials and the results of
27 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND
PROCEDURE: EVIDENCE § 6075 (2d ed. 2007).
Moore v. American Family Mut. Ins. Co., 576 F.3d 781, 787 (8th Cir. 2009) (quoting
Peterson ex rel. Peterson v. General Motors Corp., 904 F.2d 436, 440 (8th Cir.1990)).
Moore, 576 F.3d at 787 (citations omitted).
Doc. No. 319-3.
those previous trials.”26 Plaintiff also noted that “[t]he misconduct is particularly egregious here
since several jurors read the newspaper article during the second week of the trial and the article
was discussed amongst the jurors.”27 Plaintiff’s conclusions are unsupported.
During the hearing, Mr. Hill clarified that the jurors simply discussed that they had heard
there was an article in the paper, but “nobody ever mentioned any details of it.”28 Mr. Hill
testified that “[n]o one indicated that they knew for sure which side [the article] was favorable
to . . . .”29 Every other juror’s testimony was consistent with Mr. Hill’s recollection -- they were
aware of the fact that the newspaper published an article about the trial, but no one was aware of,
or discussed, the substance of the article.
Finally, even if the facts were as Plaintiff had originally asserted, it seems to me that
Plaintiff might well be estopped from alleging potential prejudice from the jurors’ knowledge of
previous trials, or even the outcome of previous trials. In this case, all of the jurors completed
jury questionnaires before trial, and two of the jurors -- who were seated on the jury without
objection -- indicated that they previously had heard of lawsuits involving hormone replacement
therapy products. One juror indicated that she had read in the newspaper that the companies
were being sued because of alleged breast cancer injuries. The other juror indicated that she had
heard that “lawsuit [was] lost.”30 If Plaintiff did not deem the jurors’ knowledge worthy of
striking them from the jury before trial, its hard to imagine how knowledge of previous cases or
Doc. No. 319.
Doc. No. 319-3.
Doc. No. 338.
See the Court’s Exhibits 1 and 2 from the October 19, 2012 hearing.
their outcomes would present prejudice now. And, again, throughout this trial, the lawyers and
witnesses repeatedly referenced the fact that there had been previous trials.
Plaintiff cannot establish the reasonable possibility of prejudice based on the jurors’
knowledge of the mere existence of articles in the newspaper.
Viewing the post trial proceedings as a whole, I believe the jury is to be heartily
commended for its conduct throughout the trial.
Plaintiff contends that she is entitled to a new trial because “the Court allowed
Defendants to cross-examine Dr. Parisian [Plaintiff’s regulatory expert] using prior hearsay
testimony of two witnesses, Susan Allen and Leon Speroff.”31
“A new trial is not warranted on the basis of an evidentiary ruling unless the evidence was
so prejudicial that a new trial would likely produce a different result.”32 Plaintiff’s claim of
prejudice is belied by the jury’s verdict. Dr. Parisian, Plaintiff’s regulatory expert, testified
regarding the inadequacies in Defendants’ labels. Defendants attempted to impeach Dr.
Parisian’s testimony by pointing out that other experts believed that the labels were adequate.
Clearly, the “inadmissible evidence” failed to persuade the jury, since the jury found that
“Plaintiff prove[d] by the greater weight of the evidence that [Defendants] inadequately warned
about a known or knowable risk of [their drugs].”
Because the jury sided with Plaintiff’s expert on the issue of inadequate warnings,
Plaintiff is unable to show any prejudice from the admission of the evidence used during the
cross-examination of Dr. Parisian.
Doc. No. 319.
Bevan v. Honeywell, Inc., 118 F.3d 603, 612 (8th Cir. 1997).
Based on the findings of fact and conclusions of law above, Plaintiff’s Rule 59 Motion for
New Trial (Doc. No. 319) is DENIED.
IT IS SO ORDERED this 24th day of October, 2012.
/s/ Billy Roy Wilson
UNITED STATES DISTRICT JUDGE
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