LITTLE ROCK — Noting that neither a courtroom bailiff nor jurors did anything wrong, and that there was no evidence that a Hot Springs Village woman was prejudiced by an allegedly erroneous evidentiary ruling, a federal judge has rejected the woman’s request for a new hormone-therapy trial.
Sondra Welch of Hot Springs Village sued drugmakers Wyeth and Upjohn, both subsidiaries of Pfizer Inc., in a case that was tried in August before a federal jury in Little Rock.
Although jurors agreed with Welch that the drug companies failed to provide adequate warnings about the breast-cancer risks of taking their hormone drugs, Welch ultimately lost the case because jurors found she didn’t prove that the inadequacy caused her to develop breast cancer.
Welch is one of six women who have taken their hormone therapy lawsuits to trial in the Little Rock courtroom of U.S. District Judge Bill Wilson in the past six years. In all but one of those trials, jurors sided with the drugmakers.
Dozens of similar lawsuits have been tried in state and federal courts across the country, with mixed results.
In a motion for a new trial, Welch argued that according to a male juror who talked to attorneys after the trial, a bailiff inappropriately told jurors details of the earlier trials while they were hearing Welch’s case, and jurors openly discussed a newspaper article about the trial during the trial, despite the judge’s orders to ignore media coverage.
Neither allegation turned out to be the case, as became clear after Wilson summoned nine of the 11 jurors to the courtroom Oct. 19 to briefly question them, then talked to the remaining two in telephone conferences.
Even the male juror whose affidavit was used to support Welch’s motion for a new trial explained during the hearing that the statements attributed to him in the affidavit were “not quite accurate.”
“Viewing the post-trial proceedings as a whole, I believe the jury is to be heartily commended for its conduct throughout the trial,” Wilson said in his order.
As for Welch’s complaint that Wilson had allowed the pharmaceutical companies’ attorneys to cross-examine a plaintiff’s expert witness using prior hearsay testimony of two witnesses, Wilson cited a 1997 ruling from the 8th U.S. Circuit Court of Appeals in St. Louis. It holds, “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.”
In this case, Wilson said, “Plaintiff’s claim of prejudice is belied by the jury’s verdict.” He noted that the jury came down on the side of the plaintiff’s regulatory witness, whose testimony the defense sought to impeach with the cross-examination. That witness, Dr. Suzanne Parisian, testified about the inadequacy of the drugs’ warning labels.
Arkansas, Pages 11 on 10/31/2012