Christensen et al v. Johnson & Johnson et al
Filing
259
ORDER denying plaintiff's 243 Motion for New Trial (Written Opinion). Signed by Judge John R. Tunheim on March 26, 2012. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IN RE: LEVAQUIN PRODUCTS LIABILITY
LITIGATION
MDL No. 08-1943 (JRT)
This Document Relates to:
Civil No. 07-3960 (JRT)
CALVIN CHRISTENSEN,
Plaintiff,
v.
JOHNSON & JOHNSON and ORTHOMCNEIL-JANSSEN PHARMACEUTICALS,
INC.,
MEMORANDUM OPINION AND
ORDER DENYING PLAINTIFF’S
MOTION FOR A NEW TRIAL
Defendants.
Ronald S. Goldser and David M. Cialkowski, ZIMMERMAN REED,
PLLP, 1100 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402;
and Lewis J. Saul and Kevin M. Fitzgerald, LEWIS SAUL &
ASSOCIATES, 183 Middle Street, Suite 200, Portland, ME 04101,
counsel for plaintiff Christensen.
James B. Irwin, V, IRWIN FRITCHIE URQUHART & MOORE, LLC,
400 Poydras Street, Suite 2700, New Orleans, LA 70130; Tracy J.
Van Steenburgh and Dana M. Lenahan, NILAN JOHNSON LEWIS, PA,
400 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402;
William V. Essig, DRINKER BIDDLE & REATH LLP, 191 North
Wacker Drive, Suite 3700, Chicago, IL 60606; counsel for defendants.
Plaintiff Calvin Christensen brought claims against defendants, Johnson &
Johnson and Ortho-McNeil-Janssen Pharmaceuticals, Inc., for failure to warn about
certain risks involved in taking Levaquin, specifically the risk of tendon rupture. His
case was the second bellwether case tried in multi-district litigation involving numerous
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plaintiffs who allegedly have suffered injury as a result of taking Levaquin. The jury
found for defendants and against Christensen. Christensen now moves for a new trial
claiming that the Court committed structural error during jury selection; that the Court
erred in allowing Defendants to present prior testimony at trial; and that the Court erred
in refusing to give the jury missing witness instructions. The motion will be denied.
BACKGROUND
Jury Selection
During the jury selection process, the jurors were asked to complete a jury
questionnaire and the Court conducted follow up questioning. Christensen specifically
objects to the Court’s rulings on Jurors Numbers 3 and 17, both of whom were
challenged by the parties.
Juror No. 3 indicated that he trusted pharmaceutical manufacturers and he felt they
adequately warn about the risks associated with their medications. (Ronald S. Goldser
Aff., Ex. 1, Juror No. 3 Questionnaire ¶¶ 33, 35, Docket No. 246.) Juror No. 3 also
indicated that he believed the typical American company adequately safety tests its
products (id. ¶ 25) and the FDA does an adequate job of making sure the medications it
approves are reasonably safe (id. ¶ 26). He indicated that he did not feel strongly that
pharmaceutical companies have too much power over the FDA (id. ¶ 28) or that
pharmaceutical companies care a lot more about profits than the safety of their products
(id. ¶ 28). During voir dire, he indicated that he could be fair and impartial as a juror.
(Christensen Tr. at 21.)
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Juror No. 15 indicated that she did not trust pharmaceutical manufacturers and that
she did not believe they adequately warn about the risks associated with their
medications. (Ronald S. Goldser Aff., Ex. 3, Juror No. 15 Questionnaire ¶¶ 33, 35,
Docket No. 246.) Juror No. 15 indicated that she believed the typical American company
adequately safety tests its products (id. ¶ 25) and the FDA does an adequate job of
making sure the medications it approves are reasonably safe (id. ¶ 26). In response to a
question asking whether pharmaceutical companies have too much power over the FDA,
she answered “not sure[;] need to research.” (Id. ¶ 28.) She indicated that she felt
strongly that pharmaceutical companies care a lot more about profits than the safety of
their products and wrote, “I am suspicious of an industry that makes so much money –
paying fines does not hurt them.” (Id. ¶ 29.) During voir dire, she stated, after some
temporizing, that she thought she could “observe and listen to the evidence presented in
the case and deliver a fair verdict.” (Christensen Tr. at 49-50.)
The Court denied Christensen’s request that Juror No. 3 be dismissed for cause
and granted Defendants’ request that Juror No. 15 be dismissed for cause. Plaintiff later
exercised a preemptory challenge that resulted in the dismissal of Juror No. 3.
Absence of Dr. Holmes
Defendants’ disclosed Dr. George Holmes as one of their expert witnesses, and he
was expected to testify live at trial. (Goldster Aff., Ex. 6, Defs.’ First Am. Witness List,
May 3, 2011, Docket No. 246; Defs.’ Second Am. Witness List, May 24, 2011, Docket
No. 155.) Christensen took a “short discovery deposition” of Dr. Holmes on May 16,
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2011. (Pl.’s Mem. Supp. New Trial at 5, Docket No. 245.) Christensen did not learn
until June 8, 2011 that Dr. Holmes would be out of the country and would not appear for
trial. (Id.) Based on defendants’ representations, the Court found that Dr. Holmes was
unable to appear in person at trial due to a trip to New Zealand and permitted his prior
testimony to be read into the record. (See Christensen Tr. at 1351.)
Witnesses Not Called Live at Trial
Christensen disclosed Dr. John Seeger as one of his witnesses. (Pl.’s Am. Witness
List, Docket No. 157.)
Defendants designated Dr. Seeger as an expert in the first
bellwether trial but did not call him as a witness during the Christensen trial.
Dr. Seeger’s video deposition was presented by Christensen during trial.
Defendants disclosed Dr. Peter Layde as one of their epidemiological experts and
witnesses. (See Defs.’ Second Am. Witness List.) Defendants designated Dr. Layde as
an expert under Rule 26(a)(2)(b) in this and in the first bellwether trial. Dr. Layde
testified in the previous bellwether trial but did not testify during the Christensen trial.
Christensen disclosed Dr. Daniel Fife as one of his witnesses. (Pl.’s Am. Witness
List.) Dr. Fife is an employee of the Defendants who Christensen asserts “has knowledge
of facts, and has opinions regarding, epidemiological guidelines and the maintenance of
records used” in key epidemiological studies.
(Pl.’s Mem. Supp. New Trial at 7.)
Christensen presented Dr. Fife’s video deposition during the trial.
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DISCUSSION
I.
STANDARD OF REVIEW
Under Rule 59(a) of the Federal Rules of Civil Procedure, the Court may grant a
motion for a new trial “on all or some of the issues . . . .” Fed. R. Civ. P. 59(a)(1). “A
new trial is appropriate when the first trial, through a verdict against the weight of the
evidence . . . or legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell,
86 F.3d 1472, 1480 (8th Cir. 1996). “The authority to grant a new trial is within the
discretion of the district court.” Id. Christensen argues he is entitled to a new trial
because (1) the Court improperly conducted jury selection by applying inconsistent
standards in striking jurors, (2) the Court erred in allowing Defendants to present prior
testimony at trial, and (3) the Court erred in refusing to give the jury missing witness
instructions.
II.
JURY SELECTION
Christensen contends that the Court applied inconsistent standards when selecting
the jury, creating a structural error. The Court has “broad discretion in determining
whether to strike jurors for cause because it is in the best position to assess the demeanor
and credibility of the prospective jurors.” Cravens v. Smith, 610 F.3d 1019, 1031 (8th Cir.
2010) (quoting Allen v Brown Clinic, PLLP, 531 F.3d 568, 572 (8th Cir. 2008)). A
district court is required to strike for cause a juror who lacks impartiality. United States
v. Elliott, 89 F.3d 1360, 1365 (8th Cir. 1996). However, if “the record shows a legitimate
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basis for the district court’s decision to retain the juror, there is no abuse of discretion.”
United States v. Dale, 614 F.3d 942, 959 (8th Cir. 2010).
Christensen asserts that the Court erred by striking Juror No. 15 and not striking
Juror No. 3. He contends that the Court should have either struck both jurors or neither
juror. See United States v. Jones, 193 F.3d 948, 951-52 (8th Cir. 1999) (finding that a
juror who sat on the jury should have been struck for the same reasons as one struck for
cause by the court). Christensen alleges both jurors indicated they had biased opinions of
the pharmaceutical industry in the jury questionnaires,1 Both jurors later expressed the
opinion that they could remain impartial during voir dire.
It is within the Court’s discretion to excuse or refuse to excuse a challenged juror
after the juror affirms their impartiality. Dale, 614 F.3d at 959. The Eighth Circuit has
recognized the importance of the judge’s evaluation of the juror’s impartiality and
demeanor during voir dire. Id. The Court found that despite Juror No. 15’s statement
that she could be impartial, she had not adequately rehabilitated herself. (See Christensen
Tr. at 95.)
The Court concludes that the determination that Juror No. 15 did not
adequately rehabilitate herself – and Juror No. 3 did – is within the Court’s discretion.
Moreover, even if Juror No. 15 did not adequately rehabilitate herself, Christensen
cured any error by exercising a peremptory challenge.
Christensen asserts that the
exercise of this preemptory challenge caused him to “lose” a preemptory challenge he
would have used against another juror. The Eighth Circuit has indicated that where a
1
In contrast to Jones, 193 F.3d at 951 (both jurors indicated the same bias), Juror No. 3’s
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party removes a juror, they do not “lose” a peremptory challenge; rather, they use “the
challenge in line with a principal reason for peremptories.” Walzer v. St. Joseph State
Hosp., 231 F.3d 1108, 1111 (8th Cir. 2000) (quoting United States v. Martinez-Salazar,
528 U.S. 304, 315-16 (2000)).2 The Court concludes that it did not abuse its discretion in
the jury selection process and that, even if an error did occur, the error was cured by
Christensen’s peremptory challenge.
III.
PRESENTATION OF PRIOR TESTIMONY
Christensen asserts that because Defendants failed to establish Dr. Holmes’s legal
unavailability for trial, he should have been required to testify live or not at all. See Fed.
R. Evid. 801 (defining hearsay); id. 802 (“Hearsay is not admissible except as provided
by these rules or by other rules prescribed by the Supreme Court . . . .”). The testimony
of an absent witness may be admitted under Federal Rule of Evidence 804 and/or under
Federal Rule of Civil Procedure 32. Although under Rule 804, Defendants would have
borne the burden of proving the unavailability Dr. Holmes,3 Rule 32 is an independent
2
Christensen further asserts that the Eighth Circuit misinterpreted Martinz-Salazar and
that it should have followed Justice Souter’s concurrence where he would have limited the
holding to situations where the party fails to show that “if he had not used his peremptory
challenge curatively, he would have used it peremptorily against another juror.” 528 U.S. at 318
(J. Souter concurring). This limitation was not included in the Court’s main opinion (signed by
seven justices), and was not adopted by the Eighth Circuit in Walzer, 231 F.3d 1108. Therefore,
the Court finds that even though Christensen has shown he would have used the peremptory
challenge differently, if possible, he did not “lose” a peremptory challenge.
3
A witness is unavailable when he “is absent from the hearing and the proponent of a
statement has been unable to procure the declarant’s attendance . . . by process or other
reasonable means.” Fed. R. Evid. 804(a)(5). Dr. Holmes was indisputably absent from the
hearing, but it is unclear the means Defendants had used to procure his attendance.
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exception to the hearsay rule. Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 91415 (9th Cir. 2008) (citing Fed. R. Evid. 802 advisory committee’s note and cases from
the First, Third, Seventh, Tenth, and D.C. Circuits recognizing that Fed. Rule Civ. P.
32(a) creates an independent exception to the hearsay rule). Rule 32(a)(4)(B) provides:
A party may use for any purpose the deposition of a witness, whether or not
a party, if the court finds . . . that the witness is more than 100 miles from
the place of hearing or trial or is outside the United States, unless it appears
that the witness’s absence was procured by the party offering the
deposition.
The Court found that Dr. Holmes was in New Zealand, and nothing suggested the
Defendants procured his absence. (See Christensen Tr. at 1348-51.)
The Court
concludes that Dr. Holmes’s deposition testimony was properly admitted under Federal
Rule of Civil Procedure 32.
IV.
MISSING WITNESS INSTRUCTIONS
Christensen also contends that the Court erred in refusing to give the jury a
missing witness instruction. Specifically, Christensen asserts the Court should have
instructed the jury that the Defendants’ failure to call Drs. Fife, Seeger and Layde
permitted the jury to infer that those witnesses’ testimony would have been unfavorable
to Defendants.
The missing witness instruction is available if (1) a party fails to call a key witness
(i.e. a witness who is important and possesses relevant information), Boardman v. Nat’l
Med. Enters., 106 F.3d 840, 844 (8th Cir. 1997); and (2) that witness is “peculiarly”
within the control of one party, United States v. Burton, 898 F.2d 595, 597 (8th Cir.
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1990). The instruction allows the jury to infer that the testimony of that witness is
“unfavorable to the party who could have called the witness and did not.” 3 Fed. Jury
Prac. & Inst. § 104.25 (5th ed.). “The decision to give a missing witness instruction is
largely within the discretion of the trial court.” United States v. Cole, 380 F.3d 422, 427
(8th Cir. 2004). The Eighth Circuit has also noted repeatedly that the absent witness
instruction should be applied with caution.4
Christensen claims that Drs. Layde, Seeger, and Fife were not equally available to
Christensen and the Defendants because Christensen had no ability to secure their
presence at trial. Video testimony from Dr. Seeger and Dr. Fife was presented at trial.
Christensen asserts that this testimony is not the same as a witness’s live testimony at
trial. However, Christensen presents no case law supporting his assertion that he should
be entitled to an absent witness instruction for a witness whose testimony was presented
at trial.5 Although live testimony in open court is preferred, see, e.g., 8-43 Moore’s
Federal Practice – Civil § 43.02(2) (Online Ed. 2011), exceptions for alternative forms of
testimony are explicitly authorized. Fed. R. Civ. Proc. 43(a). The Court finds that
4
Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004) (“The jury should not be
encouraged to base its verdict on what it speculates the absent witness would have testified to
. . . ” (quoting Felice v. Long Island R.R. Co., 426 F.2d 192, 195 n.2 (2d Cir. 1970 (Friendly J.));
Jenkins v. Bierschenk, 333 F.2d 421, 425 (8th Cir. 1964).
5
Indeed, other circuits have held that the missing witness instruction has “no place in
federal trials conducted under the Federal Rules of Evidence and the Federal Rules of Civil
Procedure.” Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1047 (5th Cir. 1990); see Allstate
Ins. Co. v. Shuler, 53 F.3d 331, 1995 WL 258139, at *3 (6th Cir. 1995). Although Christensen
does cite to a recent case from the Eighth Circuit, Cole, 380 F.3d 422, discussing the instruction,
Cole was a criminal case.
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Christensen’s preference for live testimony over other forms of authorized testimony
does not entitle him to an absent witness instruction.
Neither party presented testimony from Dr. Layde at trial. Christensen asserts he
was entitled to a missing witness instruction because, although he had the right to call
Dr. Layde at trial, he did not have the ability to call Dr. Layde live at trial. Because
Christensen withdrew his motion to present Dr. Layde’s deposition or former testimony
at trial (see Christensen Tr. at 2851-52), the Court holds he cannot now assert that
Dr. Layde was unavailable to him at trial.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Christensen’s motion for a new trial [Docket No. 243] is
DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 26, 2012
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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