Summary:

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JACQUELYN GILES, individually
§
and as Special Administrator of
§
the Estate of Jeff L. Giles, deceased,
§
Plaintiff,
§
§
v.
§
CASE #4:04-cv-04245-JPG
§
WYETH, INC., a Delaware Corporation §
and its wholly-owned subsidiary,
§
WYETH PHARMACEUTICALS,
§
formerly known as AMERICAN HOME§
PRODUCTS CORPORATION,
§
Defendant.
§
PLAINTIFF’S MOTION FOR NEW TRIAL
Pursuant to Rule 59, Fed.R.Civ.P., Plaintiff Jacquelyn Giles hereby moves the
Court for new trial. In support of same, she would show the Court the following:
1.
Because of the unique perspective of the trial judge, the decision as to
whether to grant a new trial is committed to his sound discretion and will be reversed
only for a clear abuse of that discretion. Kempner Mobile Electronics, Inc. v.
Southwestern Bell Mobile Systems
, 428 F.3d 706, 716 (7 Cir. 2005); Latino v.
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Kaizer, 58 F.3d 310, 314 (7 Cir.1995). Of the numerous grounds justifying a grant
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of new trial, one is that the “interests of justice” require it. See e.g., Fort Howard
Paper Co. v. Standard Havens, Inc.
, 901 F.2d 1373, 1379 (7 Cir. 1990)(affirming
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Although the issue is rarelyraised, theSeventh Circuit has repeatedlyaffirmed trial judge’s
1
grants of a new trial. E.g., General Foam Fabricators, Inc. v. Tenneco Chemicals, Inc., 695 F.2d
281, 288 (7 Cir. 1982); Juneau Square Corp. v. First Wisconsin Nat. Bank of Milwaukee, 624 F.2d
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798, 809 (7 Cir. 1980).
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grant of new trial after a three-week jury trial). Therefore, “[i]n ruling on a motion
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for a new trial, . . ., the judge mayconsider the credibility of the witnesses, the weight
of the evidence, and anythingelse which justice requires.” Spanish Action Committee
of Chicago v. City of Chicago
, 766 F.2d 315, 321 (7 Cir. 1985). Moreover, he can
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even order a new trial sua sponte. Rule 59(d), Fed.R.Civ.P. With these standards in
mind, we turn to several different bases which, individually, or in tandem, warrant a
new trial.
2.
Defense Arguing Contrib. On the eve of the final jury arguments, the
Defendant asked for permission to file an Amended Answer,deleting its contributory
negligence defense, and, in connection therewith, asked the Court to preclude
Plaintiff’s counsel from mentioning this abandoned claim. We complied with the
request and avoided any comment about this withdrawn defense during our
summation. In his closing argument, Mr. Murphy then proceeded to trash Jeff Giles,
claimingthat heliedto hiswife and/or withheld informationabouthisdepression and
that he failed to follow Dr. Pramote’s advice to contact him when he felt suicidal.
Fair is fair. The defense cannot withdraw a pleading, muzzle Plaintiff’s counsel, and

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A contemporaneous objection after the bell had been rung would have only exacerbated
2
the situation.
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then proceed to argue the very matters which Plaintiff was not permitted to address.
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3.
Black Box Warning. In the abstract, the Court’s decision, under the
auspices of Rule 407, Fed.R.Ev., to preclude any reference to the FDA-mandated
black box warnings about suicidality seems innocuous enough. In practice, that
decision, when coupled with the defense’s major theme that the FDA had decided that
antidepressant drugs do not cause suicide, was a hamstring for the Plaintiff. Defense
counsel and defense witnesses were permitted to testify at length about the FDA’s
action, claiming it had completely exonerated Effexor and the other antidepressant
drugs. Because of the Court’s in limine ruling, Plaintiff’s counsel’s cross-
examination was unfairly restricted. To comply with the Court’s ruling, we had to
tip-toe around the FDA documents, carefullyavoiding any mention of the black box.
An example isthe cross-examinationof Dr. Gibbonsduringthe sur-rebuttalcase. We
offered Defendant’s Exhibit82,theFDA’s November 16,2002,Memorandum,so the
Jury could read for themselves exactly what the FDA did and did not say. But the
defense objected because their exhibit contained references to the FDA-mandated
black box warning. It just was not fair.
4.
Worker’s CompensationClaim. Plaintiff moved in limineto excludethis
evidence because, as a matter of law, there is no inconsistency between the comp

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claim that was settled by Ron Coffel and the products liability claim at issue in this
case. The Court denied our motion. Although Mr. Coffel tried to explain the lack of
inconsistency, when he did, the Court sustained the defense’s objection. This leftthe
jury with a slanted, evidentiary view of an issue that should have been resolved as a
matter of law, or, alternatively, excluded under Rule 403, as much of our proffered
evidence was. Moreover, it left the perception that the Plaintiff was attempting to
obtain a double recovery, even though the law requires subrogation.
5.
Adequacy of Warning Instruction. Plaintiff tendered an adequacy of
warning instruction that was derived from Riddle v. Merck & Co., Inc., 2006 WL
1064070 (S.D.Ill. 2006). The Court declined to give the instruction. Given the
centrality of the warnings’ claim, and the defense position regarding the adequacy of
its so-called “suicide warning,” this instruction could well have made the difference
in the outcome of the case.
6.
Exclusion of Rebuttal Testimony of Robert Valuck, Ph.D. Dr. Valuck
was Wyeth’s expert witness. In his deposition he testified that, according to Table
18 of the FDA’s 2006 analysis, the odds ratio of 2.29 for serious suicidal preparation
for patients in Jeff Giles’ age group was “the most probable estimate.” Valuck
deposition at 53. We offered this testimony in rebuttal. Even though it was clearly
made by a Wyeth agent, specifically retained for this case, the Court excluded it. In
his final argument, Terence Murphy again x’ed out the 2.29 figure as being

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“statisticallyinsignificant.” Without this critical testimonyin the record,he got away
with it.
Respectfully submitted,
V
ICKERY
, W
ALDNER
& M
ALLIA
,
LLP
/ss/Arnold Anderson (Andy) Vickery
Arnold Anderson (Andy) Vickery
Paul F. Waldner
Rebecca L. Dumas
One Riverway Plaza, Suite 1150
Houston, TX 77056-1920
Telephone: 713-526-1100
Facsimile: 713-523-5939
Email:
andy@justiceseekers.com
Email: paul@justiceseekers.com
Email: becky@justiceseekers.com
(Admitted Pro Hac Vice)
Certificate of Service
I certifythat on this 24 dayof July, 2007, Plaintiff’s Motion for NewTrial has
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been electronically filed with the Clerk using the CM/ECF system, which will
automatically send email notifications of such filing to the following attorneys of
record:
David S. Rutkowski, Esq.
Robin L. Juni, Esq.
Junius C. McElveen, Jr., Esq.
J
ONES
D
AY
51 Louisiana Avenue, NW
Washington, DC 20001-2113

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-6-
Larry E. Hepler, Esq.
Beth A. Bauer, Esq.
W. Jason Rankin, Esq.
H
EPLER
, B
ROOM
, M
AC
D
ONALD
, H
EBRANK
T
RUE
& N
OCE
,
LLP
Two Mark Twain Plaza, Suite 300
103 West Vandalia Street
Edwardsville, IL 62025-0510
Mark Herrmann, Esq.
David B. Alden, Esq.
J
ONES
D
AY
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Terence M. Murphy, Esq.
J
ONES
D
AY
2727 North Harwood Street
Dallas, TX 75201-1515
Amber B. Shushan, Esq.
J
ONES
D
AY
1420 Peachtree St., NE, Suite 800
Atlanta, GA 30309-3053
Stephen W. Stone, Esq.
H
OWERTON
, D
ORRIS
& S
TONE
300 West Main Street
Marion, IL 62959
Mark A. Kochan, Esq.
K
OCHAN
& K
OCHAN
121 West Cherry
Herrin, IL 62948
/ss/Arnold Anderson (Andy) Vickery
Arnold Anderson (Andy) Vickery