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.