Mark Geier in order of magnitude error confesses: "I must have missed a zero"

From the United States Court of Appeals, 10th Circuit (Kansas)

Extract from: C.A.10 (Kan.),1990. Graham v. Wyeth Laboratories, Div. of American Home Products Corp. 906 F.2d 1399, 59 USLW 2056.

June 25 1990

The Honorable Leonard I Garth, Senior United States Court of Appeals Judge for the Third Circuit, sitting by designation, with circuit judges Seymour and Moore

Garth, Senior Circuit Judge:

This lawsuit had its origins in the tragic history of the plaintiff, Michelle Graham, a child who has suffered, and is suffering from brain damage, and who requires continuous treatment and care. Michelle Graham (by her parents) alleged that she sustained severe and irreversible brain damage after being vaccinated against diphtheria, pertussis and tetanus with a defective vaccine produced by Wyeth.

On March 17 ,1980, Michelle Graham, who was only a few months old, was administered Wyeth’s DTP vaccine by a nurse at a county office of the Missouri Department of Health. Shortly thereafter Graham was diagnosed as having suffered from a severe and irreversible neurological condition known as encephalopathy which caused retardation and prevents Graham from ever leading a normal life. Graham sued Wyeth alleging that its DTP vaccine caused the brain damage, and that this type of injury could have been avoided if only Wyeth had used more care in controlling the level of toxoid in its vaccine. Wyeth denied that its DTP vaccine did in fact cause Graham’s brain damage, or that the DTP vaccine even could, in fact, cause this particular type of damage...


After more than seven weeks of trial during which numerous experts testified as to causality, and others were excluded from testifying, the jury returned a verdict in favor of Graham for $15,000,000 in compensatory damages. Motions for judgment notwithstanding the verdict and for a new trial based on evidentiary errors were made by Wyeth and denied by the district court. Wyeth appealed. Thereafter, Wyeth, claiming to have discovered new evidence after its notice of appeal was filed, brought two Fed.R.Civ.Pro 60(b) motions in the district court for relief from the judgment and for a new trial. These motions were denied by the district court, and an appeal from those denials was taken as well.


Part V



A final error was committed by the district court in its denials of post-trial relief to Wyeth under F.R.Civ.Pro 60(b) when Wyeth sought a new trial on the grounds of newly discovered evidence. The grant of denial of a Rule 60(b) motion is reviewed for abuse of discretion; In re International Coating Applicators, 647 F.2d 121, 124 (10th Cir. 1981). [FN23]

FN23. It is unclear if jurisdictionally a district court can ever grant a rule 60(b) motion after a notice of appeal has been filed. The procedure approved by us in this case is for the district court to indicate that it would grant the 60(b) motion if it had jurisdiction, and for the our court to then remand the case to the district court for that court to decide the motion; see Blinder, Robinson & Co. v. SEC., 748 F.2d 1415, 1420 (10th Cir. 1984.) ("In ordinary civil cases the rule is that after an appeal has been taken the district court retains jurisdiction to consider and deny a rule 60(b) motion and, if it indicates that it will grant the motion, the movant may then ask the court of appeals to remand the case so that the district court may act.") quoting Aune v. Reynders, 344 F.2d 835, 841 (10th Cir. 1965); see also United States v. 397.51 Acres of Land, 692 F.2d. 688 (10th Cir., 1982).

As we reconstruct the sequence of events from the docket sheets, the jury verdict in favor of Graham was entered on October 15, 1987. Timely motions were made by Wyeth for judgment NOV or for a new trial. These were denied on February 2, 1988 followed by a timely notice of appeal, the time for which had been tolled by Wyeth's post trial motions. Thereafter, on April 15, 1988, Wyeth moved for relief from the Graham judgment pursuant to Fed.R.Civ.Pro. 60(b). On July 19, 1988, the district court denied Wyeth's 60(b) motion which was followed by Wyeth's motion for reconsideration--a motion that was also denied by the district court. Wyeth then appealed on April 17, 1988 from the denial of its original 60(b) motion.

On October 13, 1988, Wyeth moved again for relief of judgment under Fed.R.Civ.Pro. 60(b). That motion was also denied on February 16, 1989. A timely appeal was taken from that denial as well.


At the conclusion of trial the jury awarded Graham $15,000,000 in compensatory damages. Through later depositions taken in other DTP cases unrelated to the instant proceeding, Wyeth discovered that two of the key expert witnesses who had testified on Graham's behalf, had erred in their testimony as to the toxicity of Wyeth's vaccine. These two witnesses, Dr. Geier and Dr. Zahalsky, both misstated [FN24] in their testimony to the Graham jury, the results of Dr. Geier's experimentation respecting the levels of endotoxin in Wyeth's DTP vaccine. This evidence was addressed to Wyeth's alternative defense: that DTP vaccine could not have caused Graham's stroke. Both of Wyeth's 60(b) motions concerned this testimony.

FN24. We assume that any error that occurred in Drs. Geier's and Zahalsky's testimony was due to unintentional mathematical miscalculation.

At trial, in the present case, Dr. Geier had testified extensively as to the critical relationship between the toxicity of any pertussis vaccine and the level of endotoxin. The thrust of his testimony was that the higher the level of endotoxin, the greater the danger that any given vaccination would lead to adverse reactions, including those allegedly suffered by Graham. Dr. Geier stated that the "[m]ore the endotoxin, the more severe [the] reaction" (Tr. 892). Specifically, Dr. Geier stated that the endotoxin content of Wyeth's vaccination was 240 micrograms per milliliter (Tr. 1028) -- a level four times higher than that of the next most toxic pertussis vaccine made by other pharmaceutical companies and 2400 times higher than the least toxic of the other pertussis vaccines. (Tr. 1028-31).

In fact, it later appeared that Dr. Geier had erred in his computation of the toxicity of the Wyeth's DTP vaccine. Instead of Wyeth's vaccine having an endotoxin level of 240 micrograms per milliliter, it actually had only a level of 20 micrograms per milliliter. Thus, when Dr. Geier was deposed in a later case entitled Talley v. Wyeth Laboratories, (case no. 87-349-C, E.D.Okla., Feb. 24, 1988), he testified:

Q: Your initial estimate of this Lederle [DTP vaccine] made by Wyeth was that it had 240 micrograms per milliliter, and then on subsequent reflection and further testing, you found that it had tenfold less than that; is that correct?

A: That's right, that one looks like an error of -- what we call an order of magnitude error, that is when I did the calculation, I must have missed a zero.

Q: And a tenfold difference can be pretty significant in terms of your opinion, can't it?

A: Sure.

(Tr. 468).

Dr. Geier, in a number of other depositions, had given substantially identical testimony to the effect that Wyeth's vaccine is not as toxic as he originally thought it was. [FN25] This testimony substantially undermined the weight of the evidence to which he testified in Graham's case.

FN25. In the cases of McLean v. Wyeth, 86-4077 (W.D.Ark. 1988), Cavallo v. Wyeth, Circuit Court, Milwaukee County, Milwaukee, Wis. 716- 507, and Cooper v. Wyeth, 86-1177C (E.D.Miss. 1987), Dr. Geier acknowledged the error of his testimony in the Graham case. These depositions can be found in Wyeth's Addendum of Exhibits, Volume I, 89-3066.

Almost by definition, any error in Dr. Geier's testimony had to affect the testimony and conclusions of Dr. Zahalsky, who when he testified, relied on Dr. Geier's calculations. Thus Dr. Zahalsky testified at trial that:

“And the reason I chose to identify this [a high endotoxin value] as probably the more likely value, the higher value, is because I had discussed with Dr. Geier what his analysis revealed.... I chose to take this value here [the higher endotoxin number] because he [Dr. Geier] had actually assayed [Wyeth's vaccine] which had 240 micrograms per mil[lilleter].”

(Tr. 639).

Dr. Zahalsky also identified himself as a "collaborator" with Dr. Geier on those experiments (Tr. 498) and at the Graham trial, Dr. Zahalsky substantiated the validity of his results by identifying them with the results of Dr. Geier's experiments. Thus, any error in Dr. Geier's experiments had to affect the testimony of any other expert who relied on Dr. Geier's results.


After discovering that Dr. Geier's testimony in Graham had an erroneous basis, Wyeth filed its F.R.Civ.Pro 60(b) motions in the district court, seeking post-trial relief from Graham's judgment based upon these errors in the testimony.

Federal Rule of Civil Procedure 60(b) provides for relief from judgments or orders. Subsection (b) specifies that such relief may be available where among other things:

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); or...

(6) Any other reason justifying relief from the operation of the judgment.

The district court denied Wyeth's motions for post-judgment relief. We cannot agree with the district court's resolution of Wyeth's motions grounded on newly discovered evidence. Thus, we hold that the district court abused its discretion in refusing to grant Wyeth's rule 60(b) motions, to the extent that Wyeth predicated its motions on alleged newly discovered evidence.


For newly discovered evidence to provide a basis for a new trial under Wyeth was required to satisfy five conditions:

Wyeth had to demonstrate that:

(1) the evidence was newly discovered since the trial;

(2) Wyeth was diligent in discovering the new evidence;

(3) the newly discovered evidence could not be merely cumulative or impeaching;

(4) the newly discovered evidence had to be material; and

(5) that a new trial, with the newly discovered evidence would probably produce a different result.

See Ag Pro Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir. 1975) rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L. Ed. 2d 784 (1976)

In its July 19, 1988 disposition of Wyeth's 60(b) motion, the district court concluded that Wyeth had not met three of the five requirements for relief under 60(b). The district court found that Wyeth had not exercised diligence in obtaining the new evidence; that the evidence did not meet the test of materiality and that even with this new evidence, a new trial would probably not produce a different result.

In so holding, the district court did not dispute that the evidence was newly discovered, i.e., that Dr. Geier's miscalculations did not come to light until after the Graham trial had concluded.
[FN26] Nor did it find that this new evidence of Dr. Geier's was cumulative or could be characterized as impeaching. We agree that these two prongs of the five-prong test have been satisfied. Indeed, as we discuss below, we are persuaded that all five requirements of 60(b) were met by Wyeth.

FN26. See Rosebud Sioux Tribe v. A. & P. Steel, Inc., 733 F.2d 509 (8th Cir.), cert. denied, 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506 (1984) (a witness' perjury in his deposition and at trial, [like Dr. Geier's miscalculation of the toxicity level of DTP] constituted newly discovered evidence.

We reject Graham's and the district court's assertions that Wyeth's decision not to duplicate all of Dr. Geier's experiments was a form of "lack of diligence." Rule 60(b) does not set that high a standard. If such a standard was mandated, there would be few cases where a 60(b)(2) motion could be granted, inasmuch as the movant would have to demonstrate that it could not have independently confirmed the erroneous calculation of the results. [FN27] As Wyeth contends:

"The change in Dr. Geier's endotoxin figure was produced by a change in the value of the Reference Standard used to calculate the endotoxin content of the Wyeth DTP vaccine (Geier Deposition in Talley v. Wyeth, L86-4077 W.D.Ark.1988, pp. 458, 463). Since the change in the Reference Standard was not made until after Dr. Geier testified at trial, Wyeth could only have discovered the evidence after trial." (Wyeth br. at 88-2302, p. 15).

FN27. The intent of the diligence requirement is to insure that litigants do not "hold back" evidence so as to be granted a new trial if the first trial is lost.

So too, we reject Graham's assertion (Appellee's br. at 88-2302, p. 20 n. 4) that because Dr. Geier already knew about the potential mistakes in his research at the time of his testimony in Graham's trial, it was Wyeth's lack of "diligence" that caused Wyeth to fail to discover that fact by asking Dr. Geier if he was mistaken! We must assume that Dr. Geier was unaware of the errors in his testimony at the time he testified. Moreover, the miscalculations made by Dr. Geier changed the entire complexion of the case. Had the Graham jury been alerted to the correct calculations of toxicity, it may well have taken a different view of the case.

The third prong of the test (that the evidence must not be merely cumulative or impeaching) appears to us, (as it must have appeared to the district court) to have been satisfied because of the gravity of Dr. Geier's error in miscalculating the toxicity of Wyeth's vaccine. We cannot help but observe that this error was testified to by Graham's most significant expert --Dr. Geier-- who testified in support of her claim. The fourth prong of the test (that the evidence must be material) was satisfied because Dr. Geier's testimony focused on one of the most significant aspects of Graham's claim -- the allegedly high endotoxin toxicity level of Wyeth's pertussis vaccine. Dr. Geier, as noted, was Graham's key witness on this issue. Without evidence being adduced as to high endotoxin levels, the case might not have even reached the jury.
[FN28] Additionally, a proper calculation of the endotoxin level by Graham's experts might have led the district court, in either its summary judgment opinion or in its consideration of the motion to strike Wyeth's 402A comment (k) defense to "design defect" strict liability, to rule that Wyeth's vaccine was "unavoidably unsafe" and thus exempt from liability under 402A comment (k) from all but negligence claims. We hold that the district court's perception of this testimony as not being material was an improper exercise of the district court's discretion. Contrary to the district court's view, we cannot regard the evidence in question as less than material.

FN28. We are also persuaded that Dr. Zahalsky's testimony was gravely undercut by Dr. Geier's failure to analyze his data. Dr. Zahalsky himself has significantly recanted much of his testimony in Graham's case in other testimony given in other cases. Thus for example he seems to have lowered his estimate of the endotoxin level in Wyeth's vaccine from 353 micrograms per milliliter (Tr. 638-639), the amount he testified to in Graham's case to somewhere between 7.5--75 micrograms in other cases (Overlay v. Warner Lambert (IP83-1780-C) (S.D. Ind. 1986), and Knudsen v. Connaught Laboratories,_ 691 F.Supp. 1346 (M.D. Fla. 1987). A twelve fold decrease in Dr. Geier's measurements would lead to a decrease in Dr. Zahalsky's measurements from 353 to 30 micrograms per milliliter. These depositions can be found in Wyeth's Addendum of Exhibits, I, 89-3066.

Finally we are left with the fifth prong of the Rule 60 (b.) calculus -- whether the new evidence would have probably lead to a different result at trial. This prong of the test is logically the one that requires the most deference to the district court -- that court which heard all of the evidence, which was present at trial to examine the demeanor and credibility of all of the witnesses, and which had its finger most closely on the pulse of the trial. As we stated in Kodekey Electronics, Inc v Mechanex, 486, F.2d 449, 458 (10th Cir. 1973):

“Such a determination [would the new evidence have lead to a new trial?] is not particularly favored by the courts, and rests largely and almost wholly within the sound judicial discretion of the trial court. Whether the newly discovered evidence would be likely to change the result of the district court's decision is one peculiarly within the determination of but one man -- the trial judge.”

However, we have observed that where the subject of a district court ruling involved experimental evidence which should not have been allowed and which misled the jury, this court has reversed the district court notwithstanding the general deference which is normally accorded to a trial judge on these matters. See Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1981). We recognize that Jackson was decided on direct appeal and not on appeal from a post-trial 60(b) motion, as is the case here. Nevertheless and even though not directly on point in this appeal, we are enlightened by and subscribe to Judge Doyle's statement in Jackson that, "in many instances, a slight change in the conditions under which the experiment is made will so distort the result as to wholly destroy its value as evidence, and make it harmful, rather than helpful." (Emphasis added.) (quoting Navajo Freight Lines v. Mahaffy, 174 F. 2d 305,...310 (10th Cir. 1949).) This precept is even more relevant in a case such as Graham's where the jury is less able to resolve technical and scientific facts by relying on its own common sense and experience.

The district court found no impropriety or unfairness in testimony of Drs. Geier and Zahalsky even when the deficiencies in their testimony were brought to his attention by Wyeth's 60(b) motions. We are hard pressed to understand that conclusion in light of the context in which their evidence was presented at trial. Elementary reasoning and our complete review of the trial record reveals that an accurate presentation of the endotoxin level in Wyeth's vaccine could not help but dilute the total impact of Graham's case. Moreover, Rule 60(b) is intended "to prevent the judgment from becoming a vehicle of injustice," see United States v. Walus, 616 F.2d 283, 288, (7th Cir 1980), and the Rule is to be construed liberally to do substantial justice.

It is true, we cannot say with certainty that at a new trial Graham may not again prevail, however with the significant modification in Dr. Geier's testimony which Wyeth has now discovered, it is probable that a different result in the verdict would occur. We are not required in this context to deal with "certainties" but only "probabilities." The test is whether the new evidence introduced would probably produce a new verdict. We are satisfied, after having examined in detail the arguments of both Graham and Wyeth in light of the entire record, that in this case, that probability exists.

Having concluded that the five requirements for relief from a judgment on the grounds of newly discovered evidence were satisfied by Wyeth when it discovered Dr. Geier's miscalculations as to the toxicity of Wyeth's vaccine, we hold that the district court should have exercised its discretion by vacating the Graham judgment and by granting Wyeth a new trial.
[FN29] Because it did not do so, we will reverse the orders of the district court denying Wyeth's post-trial relief. In doing so, we recognize that this holding with respect to Wyeth's 60(b) claims, accords with our holding with respect to trial errors, in that the dispositions of both appeals require a new trial. We assume that the miscalculations now disclosed in Dr. Geier's testimony will be corrected or addressed at a new trial if the same issues are presented.

FN29. Having determined that Wyeth has satisfied the requirements of Rule 60 (b)(2), we do not find it necessary to address Wyeth's claim for relief from judgment under Rule 60(b)(6).


We have held that trial errors and the discovery of new evidence by Wyeth compel a new trial to be held. We will, therefore, reverse the judgment in favor of Graham and remand to the district court for proceedings consistent with the foregoing opinion.

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