POTTER v. ELI LILLY AND CO.
926 S.W.2d 449 (1996)
Hon. John W. POTTER, Judge, Jefferson Circuit Court, Appellant,
ELI LILLY AND COMPANY, Dista Products Company, Joyce Fentress, Individually and as Executrix of the Estate of Kenneth Fentress, Roma Jean Barger, Individually and as Executrix of the Estate of Richard Owen Barger, Sr., Angela Bowman, Douglas Bowman, Michael P. Campbell, Forrest Conrad, Saundra Conrad, Linda Ganote, Individually and as Executrix of the Estate of William Spencer Ganote, Paul Gnadinger, Charles M. Gorman, Stanley Hatfield, Darlene Hatfield, William Hoffman, Janis G. Mudd, Administratrix of the Estate of James G. Husband, Sr., Andrew C. Pointer, Shirley Pointer, Juanita Sallee, Individually and as Administratrix and Personal Representative of Paul Sallee, Gordon L. Scherer, Sr., David C. Seidenfaden, Jerilyn M. Seidenfaden, John Edwin Stein, Linda Sue Stein, Jacquelyn Y. Tronzo and Tracey L. Needy Leet, Co-Administrators of the Estate of Sharon L. Needy, Paula Warman, David Warman, Maryla White, Individually and as Administratrix of the Estate of Lloyd Ray White, and Sarah Wible, Individually and as Executrix of the Estate of James P. Wible, Sr., Appellees.
Supreme Court of Kentucky.
May 23, 1996.
Rehearing Denied August 29, 1996.
Richard Hay, Somerset, John W. Potter, Jefferson Co. Hall of Justice, Louisville, for Appellant.
Irvin D. Foley, Louisville, Paul L. Smith, Dallas, TX, Edward H. Stopher, Boehl Stopher & Graves, Louisville, Lively M. Wilson, John L. Tate, Stites and Harbison, Louisville, John F. Brenner, McCarter & English, Newark, NJ, Lawrence J. Myers, Freeman & Hawkins, Atlanta, GA, Frank P. Doheny, Jr., Hirn, Doheny, Reed & Harper, Louisville, for Appellees.
This appeal is from a decision of the Court of Appeals which granted a Writ of Prohibition against Jefferson Circuit Judge John W. Potter from conducting a hearing to determine whether the judgment entered in the so-called Prozac case styled "Joyce Fentress, et al v. Eli Lilly and Company, Civil Action No. 90-CI-6033" was correct and reflects the truth.
The issue in this case is whether the trial judge can conduct a hearing to determine if the judgment rendered is true and correct.
The precise legal issue in this case arose after a jury had returned a verdict on December 12, 1994 and the circuit judge entered a judgment on January 25, 1995 in which he ordered and adjudged that the claims against the defendants be dismissed with prejudice. No post-judgment motion was filed, and the appeal time pursuant to CR 73.02(1)(a) expired on February 24, 1995, without an appeal being filed. The circuit judge then filed his own motion pursuant to CR 60.01 on April 19, 1995 stating that the preamble to the judgment entered on January 25 suggested that the dismissal was based solely on a jury verdict but that he now believes it was more likely than not that the case had been settled. The circuit judge scheduled a hearing for any party to show cause why the judgment should not be amended to read, after amendment, that the case was "dismissed with prejudice as settled."
Some factual background must be presented in order to understand the significance of this case. In 1989, Joseph R. Wesbecker, a disgruntled former employee, entered the Standard Gravure Printing plant in Louisville and shot and killed eight people and seriously wounded twelve others. The estates of the eight decedents and twelve of the injured persons filed lawsuits against various defendants including Eli Lilly Company. All of the defendants other than Lilly settled or were dismissed prior to the trial which began on September 26, 1994.
The trial was trifurcated so that the only issue to be decided by the jury was whether the anti-depressant drug Prozac manufactured by Lilly was unreasonably dangerous and defective and whether it caused Wesbecker to kill or injure the plaintiffs. The trial judge reserved the issues of compensatory and punitive damages for future trials. The trial itself lasted 47 days during which 75 live witnesses testified, 22 depositions were presented to the jury and 411 exhibits were introduced into evidence. When the trial of this case started, there were approximately 160 other Prozac cases pending against Lilly. This case was the first to go to trial.
An important element in the proof presented by Lilly was that Prozac, and its U.S. package insert, had been approved by the Federal Food and Drug Administration. The plaintiffs attempted to counter this evidence by demonstrating that Lilly had failed to accurately report test results, including the German government tests, to the FDA. Before trial, the trial judge had excluded as irrelevant and unduly prejudicial evidence that Lilly in 1985 had been sanctioned for its failure to report to the FDA adverse incidents resulting from Oraflex, an arthritis drug that had been taken off the market. Both Lilly, as a corporation, and its chief
medical officer had pled guilty to violations of multiple criminal counts of various federal statutes and withholding evidence adverse to the drug, including the deaths, from the FDA.