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...
[snip]
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.
[snip]
Part
V
[snip]
A
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.
B
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.
C
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.
D
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).
VI
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.