Document 06v5rg78J6QaBg4xy1Xwv73QV

1 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS 2 ST. CLAIR COUNTY 3 FRANCES E. KEMNER, et al. ) ) 4 Plaintiffs, ) ) 5 VS. ) NO: 80-L-970 ) 6 MONSANTO COMPANY, ) ) 7 Defendant. ) 8 9 10 R EPORT OF PROC E E D I N G S 11 Before the HON. R I C HARD P. GOLDENHERSH 12 M O T I O N HEARD AFT E R D I S C H A R G E OF JURY 13 April 3, 1986 14 15 APPEARANCES: 16 Mr. Rex Carr Mr. Jerome Seigfreid 17 On Behalf of the Plaintiffs? 18 Mr. Kenneth Heineman Mr. Joseph Nassif 19 Mr. James Craven On Behalf of the Defendant. 20 21 22 23 Debra M. Musielak, CSR, CM 24 Official Court Reporter 1 1 BE IT REMEMBERED, that on the 3rd day of-April, 2 1986, the same being one of the regular judicial days of said 3 court, the above-styled cause came on regularly for hearing 4 before the HONORABLE RICHARD P. GOLDENHERSH, one of the 5 Judges at the St, Clair County Building, 10 Public Square, in 6 the City of Belleville, County of St. Clair, State of 7 Illinois. Whereupon the following proceedings were had: 8 (The following proceedings were had outside the presence of 9 the jury) 10 THE COURT: Gentlemen, we are here for the argument 11 oh these motions. Before we start on the argument, if any of 12 you have any d o c u m e n t s that you wish filed or anything else 13 that you wish filed, could you please do so at this time, 14 because I want to release m y cleric, if possible. Any of you 15 have anything to be filed? 16 MR. CARR: N o , Your H o n o r . 17 MR. HEINEMAN: Not right now. 18 THE COURT: Well, now is the time. That's what I'm 19 saying, now is the time. 20 MR. HE INEMAN: Vie don't have anything to be filed 21 today. 22 THE COURT: Okay, that's what I meant. Fine. 23 Second of all, the two motions that are up for argument this 24 afternoon, excuse me, are M o n s a n t o ' s Motion to Voir Dire J ury 2 1 and Monsanto's Motion for Mistrial. We were scheduled to 2 argue the Motion to Voir Dire the Jury last Wednesday, and we 3 had to cancel that, so, I suppose the order in w h i c h to,go is 4 to argue the Motion to Voir Dire the Jury first, and then to 5 argue the motion on the mistrial. I've read both the 6 motions. I've read everything that you gentlemen have filed 7 as of yesterday, so I would appreciate it if in any arguments 8 that you make, if you have anything to add to it, or response 9 to the other side, but please don't repeat what you've 10 a l r eady written, because I have read what you've written. I 11 think the argument will go a lot faster and better for 12 everybody concerned. 13 So with that, with those stipulations, we will 14 start first with the Motion to Voir Dire the Jury. 15 MR. HEINEMAN: Your Honor, if the Court please, 16 before we get started on that motion, there are a couple of 17 things I'd like to raise now about what happened in court 18 today. The Court has always asked us to raise these things 19 after -- 20 THE COURT: I have indeed. 21 MR. HEINEMAN: -- after court. First of all, Your 22 Honor, we would move for a mistrial in this case with respect 23 to the conduct of Mr. Carr with respect to Dr. Suskind and 24 the baiting of Dr. Suskind in connection with what a 3 1 registered nurse was intelligent enough to do or 'not 2 intelligent enough to do, or what a six year old could do, 3 knowing, of course, that juror number 1 Clair Moy is a nurse, 4 and the efforts of Mr, Carr were clearly directed to anger 5 that juror, and to get some sort of a statement out of Dr, 6 Suskind with respect to registered nurses which would anger 7 Mrs, Moy, I know she has got a married, another married name 8 now but that's the name by which I remember her when we chose 9 her over two years ago. And, he was clearly baiting the 10 w i t n e s s w i t h respect to that. He was trying to get some sort 11 of response which would anger Mrs. Moy, and he w o u l d -- he 12 was v ery likely successful. Secondly, Your Honor, we w o u l d 13 object to the occasion when the Court pounded on the desk, on 14 the bench, and shouted at the witness with respect to an 15 answer that the witness gave, and particularly in light of 16 the fact that it occurred at a time when no request had been 17 made by counsel for assistance from the Court, and it was 18 clea r l y an intimidation of the w i t ness and we object to it, 19 and to that end we would request t h a t . t o d a y s tape be 20 impounded by the Court, that that tape m a d e ,,of the 21 proceedings be impounded by the Court. W e 'd like to h ave a 22 copy of it right away, 23 MR. CARR: If I might respond to the remarks, Your 24 Honor. The reference to the statement that somehow or 4 1 another I asked questions designed to bait the witness into 2 saying bad things about registered nurses, the baiting has 3 been the other way. The witness constantly does things which 4 he knows are improper in order to bait me. The incident that 5 he's talking about was the witness had said a registered 6 nurse is not competent to read charts, that they are not 7 trained to do it, and that they are u nable to read this to a 8 substantial degree and to accurately reflect it. I didn't 9 ask for nor want nor expect that answer. The witness is 10 simply relating what he believes a p p a r e n t l y and w h a t he 11 thinks is the case. My cross examination was d e s i g n e d to get 12 h i m to agree that a registered nurse is competent to read 13 these records, and he resisted. O b v i o u s l y my q u e s t i o n i n g was 14 appropriate in view of his responses. 15 Insofar as the Court's reaction to this witness' 16 statement, quite frankly, I am surprised that the Court has 17 been able to restrain itself as long as it has. T h i s w i t n e s s 18 has now literally for weeks been engaged in an apparent 19 attempt to goad the Court and to goad.co u n s e l into a c t i o n s to 20 the detriment of the trial. I have not seen a witness so 21 t r a nsparently obviously taking such an action. The Court has 22 time and time and time again instructed the w i t ness to obey 23 the orders of the Court, to obey the requests of the Court, 24 to respond appropriately. The witness responds each time 5 1 that he will -- there is no question but what the'-man 2 understands exactly what he's doing and has done.- If the man 3 were uneducated or inexperienced, or not w i s e f or felt 4 somehow or another upset in this courtroom, it might be 5 different, but this man is flaunting the rules of this Court, 6 openly flaunting proper procedure, openly daring the Court 7 and counsel to do something, and doing it I might say to date 3 with impunity. I believe that if I h a d b e e n the J u d g e and 9 had to endure this kind of conduct -- the Court will recall 10 you started out instructing -- we had the w i t n e s s back in the 11 Chambers. You said time and time again, y o u ' v e instructed 12 counsel to tell the witness the proper w a y to respond. Now, 13 it's certainly possible, Your Honor, that your rules are the 14 worse rules on earth. It ma y be that y o u ' r e just 15 overreaching, senseless overreaching and d e l i b e r a t e l y 16 designed to corrupt the ends of justice. I k n o w that it's i 17 not so, but the point that I'm making, even w e r e it so, 18 counsel are constrained to obey your orders. ^ T h e witnesses 19 are constrained to obey your orders. .This w i t n e s s 20 deliberately is taking the opposite and it can't be 21 considered by anything,or anybody except deliberate. The m a n 22 is deliberately disobeying the orders of Court, and has done 23 so for a long period of time. An d quite frankly, I thought 24 the Court was restrained in its action. I w o u l d h a v e taken 6 1 that gavel, X think, and. p r o b a b l y w a l k e d off the bench and 2 done a little more enforcement. And I might say, Your Honor, 3 I've been in a number of cases where judges confronted with 4 only a tenth of what has gone on with this witness have 5 reacted much more vociferously and with much more direct 6 action against the recalcitrant witness than you. I am, 7 quite frankly, am just amazed at your ability to continue to 8 be -- to treat this man with gentleness and kindness and for 9 one comment today in the fashion I think you deserve a metal 10 in, not criticism, not criticism, because this witness is 11 openly, flagr a n t l y engaged in contu m a c i o u s conduct, and I 12 think there is no ques t i o n about it. So I think the Court 13 should d eny b oth m o t i o n s of counsel. 14 THE COURT: It *s your motion, do you have any 15 response that you'd like to make? 16 MR. HEINEMAN: I have no response, Your Honor. 17 T H E COURT: Fine. Okay. I'm denying the Motion 18 for Mistrial on both grounds. First of all, I made numerous 19 rulings throughout the e x a m i n a t i o n of. this w i t ness this 20 afternoon, my rulings stand, and I w o u l d reaffirm that I do 21 not think that there was any improper questioning of this 22 w i t n e s s . 23 As far as this r e gistered nurse matter was 24 concerned it is un f ortunately an example again of one of 7 1 these matters that the witness brought on himselfV If there 2 was any adverse effect to it, I think it was handled properly 3 by Mr, Carr, There is no grounds for mistrial. There was no 4 prejudice to any p a r t y by it. 5 As far as my remarks and what I did, it was done at 6 a point in time when the witness was trying to assert himself 7 as the power that determines what can be asked of him, and 8 whether or not a certain subject can be raised wi t h him, 9 whether or not he can be allowed to continue a question, 10 matters of that ilk, and I have told this w i t ness a number of 11 times that those are decisions that I make, that he is not 12 allowed to make. Both of you g%entl e m e n are professionals, 13 both of you have r e s p o n s i b i l it i e s to your clients that you 14 discharge by w hat you consider in your profess i o n a l judgment 15 to be proper interrogation, whether direct or cross 16 examination, and i t 's not his p r o b l e m to determine that for 17 himself. The -- there wa s nothing done by the Court at this 18 time that was in any way improper or that prejudiced either 19 party. It was a p r oper exercise of th discharge of this 20 Court's duties to see the wi t n e s s e s follow the rules of this 21 Court. And it is in no w a y a basis for a mistrial. 22 The p o u n d i n g on the desk was because my gavel was a 23 little farther awa y than it should have been, other than that 24 it would have been w i t h the gavel. But I think it had the 8 *V 1 same effect, which was basically to get the witne'ss1 2 attention and to stop the proceedings so that I could 3 reassert what are the proper rules of this Court in the 4 discharge of my duties, and that is exactly why this gavel, 5 or anything else that is useful as an implement like that, is 6 available to us. That also is not a basis for a Motion for 7 Mistrial in this cause. 8 On both g r o unds your motion is denied. 9 MR. HEINEMAN: Your Honor, may we have t o d a y 's tape 10 impounded? Can we get a copy of it? 11 THE COURT: My understanding is that all these 12 tapes exist. I t h o ught I understood the last time that we 13 discussed this that there was going to be something submitted 14 to me as far as authority or requests or whatever, as far as 15 the use of the tape. I thought by both of you. I haven't 16 had anything so far. Perhaps we should, clarify that. You -- 17 1 believe that I asked you to, both parties, to submit to me 18 matters about these tapes and what would be a proper use of 19 t hem or what we should do with them, and I have checked with 20 the person who k eeps these, and more likely than not all of 21 the tapes of the trial up to this date still exist. They 22 have not been recycled. So, I don't think that that is a 23 problem. I have not done anything past that, because I'm 24 waiting for basically a formal motion and some citations and 9 1 argument to me as to what would be a proper use of these 2 tapes, if any, as far as m a king a record in this matter. So, 3 if you gentlemen would do so, it was your motion. If you 4 would do that first, and Mr. Carr, if you respond to that. 5 MR. CARR: I've been waiting for something from 6 them. 7 THE COURT: Then we can take this matter up. So 8 far, I've been given to understand, the audio tapes of the 9 trial exist. There have been no video. 10 MR. HEINEMAN: Your Honor, the last time we 11 discussed this there was no objection from counsel. 12 MR. CARR: Oh, yes, there was. 13 THE COURT: I think there was, and whether there 14 was an objection or not, I made it clear on the record that 15 in my mind I was not sure what the proper approach w o u l d be 16 as to the use of these tapes and I wanted some d i r e c t i o n and 17 some suggestions from counsel as to that, and so if you would 18 supply me with these, and Mr. Carr if .you wou l d respond to 19 theirs, whether or not agreeing or disagreeing, or a m i x t u r e 20 thereto, then I think that we can resolve that matter also, 21 but if you would please do so, then I can take care of that 22 matter. But so far as I know all these tapes still exist. 23 MR. CRAVEN: Judge, is it permissible to ask, I 24 don't understand what you are asking us to do. We thought we 10 1 had an order whereby the tapes would be preserved and we 2 could get copies of the tapes. 3 THE COURT: No. You don't have such order. I want 4 a formal motion to that effect and your citations or 5 arguments or whatever as to the proper approach to this, and 6 your authority for making that a formal part of the record, 7 and whatever else you wish to include in your motion. Your 3 backing for that, and to have Mr. Carr's response to that 9 before I enter any such order. 10 Now, in the normal course of things, I told you at 11 the -- also I w o uld see whether any of these tapes still 12 exist, and I've been given to un d e r s t a n d by the gentleman who 13 handles our audio s ystem that they do. So they still exist. 14 N o w , I want some s u g g estions from you gentlemen as to what's 15 to be done with them, and I thought I made that clear when we 16 were in Chambers before. If I didn't, I think I'm making 17 them clear now. 18 MR. CARR: The Court did, Your Honor, and my me m o r y 19 of the event is that the P l a i n t i f f s were hot yet ready to 20 take a position on it. V7e asked an opportunity to consider 21 it, and respond at some later time as to what our p osition 22 would be on the subject. I don't think -- I know we didn't 23 agree, and I don't think there is -- I cer t a i n l y had no 24 objection to impounding and keeping the tape in vial until 11 1 such time as the Court decided, but I know the Plaintiffs 2 were not in a position to agree that that tape would be part 3 of the record at that time. It's my understanding that this 4 matter be. put on hold, the tapes w o u l d be p r eserved, m a tter's 5 been put on hold for the Court to make a decision. 6 THE COURT: They are being preserved. They are 7 just reusing tapes from 1978 at this point in time. They 8 weren't even close to starting with ours. So the tapes still 9 exist. That's no problem. Okay. Let's get to the motions 10 that we have got. 11 First of all, the Motion to Voir Dire the jury. 12 MR. CRAVEN: We have two motions, and I u n derstand 13 the Court's suggestion that we take the Motion to Voir Dire 14 the Jury first. I guess maybe it's best to start w i t h our 15 Catch 22 situation Mr. Carr is sharing with us again. On 16 Page 12 of his objections he says a voir dire is not 17 appropriate unless there is some indication that the jury has 18 read the article and has been improperly influenced thereby. 19 THE COURT: That was Page 12? 20 MR. CRAVEN: That's Page 12. The Court has before 21 it all of the articles that we appe n d e d to our motion, and 22 Mr. Carr comes back with some other articles that he says had 23 their origin with us or were somehow or another w e r e inspired 24 by us, but the bottom line is that both parties seem to be 12 1 suggesting, that the jury has at least had the possible 2 exposure to substantially prejudicial articles. We allege, 3 and I think the record would establish, that Mr. Carr's 4 engaged in a deliberate course of conduct of getting things 5 in the press both in the St. Louis and in the B e l l e v i l l e 6 press, and in the St. Louis Magazine and various and sundry 7 other places where he appears in living color talking about 8 this trial and his mission in life to pin the label of bad 9 guy on Monsanto. And, it's simply beyond belief that that 10 kind of p u b l i c i t y on the front pages of the local paper, or 11 in the St* Louis paper, or in the Post D i s p a t c h Su n d a y 12 Magazine, or wherever it is, doesn't come a cross to these 13 jurors. But Hr. Carr says, okay, no, you know -- first pla c e 14 he said if you are going to voir dire the jury, voir dire 15 them about everything, and we have no obj e c t i o n to that. 16 But, how does he expect that we are supposed to p r o v e w i t h o u t 17 voir dire that which we are asking this Court to do? So I 13 think the really fundamental fairness that we are asking for 19 is does Mr. Carr say we have to prove that the jury read it 20 in order to get relief, and at the same time objects to us 21 finding out if the jury read it. That's silly. That's just 22 i m p o s s i b l e . 23 We are saying that there is an e v i d e n t i a r y basis on 24 the basis of this circulation of newspapers, of w h i c h this 13 1 Court has been aware, and the appearance in the B elleville 2 paper of this story, and the settlement, and all of the 3 prejudicial material that has been available for this jury to 4 read. It's there. It's there on a repetitive basis and we 5 say in our motion it's been there on the basis of Mr. Carr 6 electing affirmatively to permit himself to be interviewed, 7 to be photographed on his sail boat, to show the story about 8 what's a broken neck work worth, etcetera. A deliberate 9 effort to get matters before the jury. 10 How can we p r ove it? If we were to go and talk to 11 the jurors and ask them Mr. Carr would be screaming, and 12 p r o p e r l y so, because we are not entitled to do that. So then 13 how does he suggest we meet the burden that he casts upon us 14 by saying there has to be an indication that the jury has 15 read the articles and been improperly influenced? And that's 16 a cond i t i o n precedent to voir diring the jury to find out 17 what he tells us we have got to prove in the first place. 18 Now that's simply asking this Court, leading this Court again 19 into error, and we think with malice of f o r e thought in that 20 sense. 21 Judge, this trial is now historic, and I don't 22 n e c e s s a r i l y think that that's good. But it is. It's been 23 going on for 338 something trial days. This jury has been 24 exposed to all of this pub l i c i t y backwards and forwards. And" 14 1 if they have heard this, we need to know it. The parties are 2 entitled to know it. The record is entitled to reflect it. 3 And then once we see what they have read, what they have been 4 exposed to, what they have heard, listened, seen, read, then 5 we argue the next question of was it prejudicial. Now, the 6 one time that we argued in this court the question of the -- 7 Mr. Carr's very well publicized interview in the New York 8 times, the Court incredulously, I thought, suggested to us 9 that we had no reason to object because it was de r o g a t o r y to 10 Mr. Carr. Well, I don't think it was d e rogatory to Mr. Carr, 11 but that's irrelevant. The question was did the material get 12 to the jury, and if it did, what impact did it have on the 13 jury. We are entitled to have -- assert whether or not this 14 jury has any information towards this record about this trial 15 from publicity. We do not object to Mr. Carr's suggestion 16 that the voir dire include the articles that he appended. We 17 agree that if you are going to voir dire the jury you are 18 going to voir dire the jury about the sum total of the 19 extraneous matters that have gone on. And then we have to 20 determine whether that matter was p r e j udicial to the 21 Plaintiff or to the Defendant, and to what extent and what 22 the remedy is, but, Judge, it's inappropriate to go forward 23 with this trial, with this jury, with this burden on this 24 account when this record is incomplete as to this exposure o f 15 1 these jurors to this kind of deliberately inflicted 2 publicity. 3 He comes back and says, well, the Monsanto PR man 4 said this and so forth. We dispute that. But we agree there 5 should be inquiry as to what the jury has read, seen, heard, 6 talked about. And then we will talk about the prejudice to 7 whom and under what circumstances and when and where. So we 8 request that the jury be voir dired. We filed this motion as 9 soon as we reasonably could after the Belleville story 10 appeared. We have b e e n p e r s i s t e n t in our request that the 11 jury be voir dired. I think that was Febr u a r y 16th or 18th, 12 some such date, and here we are now in early April. And I 13 suggest that there is some u r g e n c y to doing this, like 14 tomorrow. Like tomorrow, or Monday, or Saturday. We have to 15 know whether we are trying a case b efore a jury that has been 16 made less than impartial by this kind of publicity. What's 17 it to try cases whe r e juries hear abo u t million dollar IS settlements, and it's my -- it's my life to pin the label of 19 bad guy on Monsanto, and it will be the great contribution to 20 the society to do this, and the evil chemical companies, and 21 this kind of material that's in this literature that has its 22 origin with Mr. Carr. And it's pub l i s h e d in the Belleville 23 n e w s p a p e r . 24 Nov/, we don't give you cases with reference to what' 16 1 is prejudicial because we don't know whether they have read 2 it. But we are entitled to know, and as soon as we do get 3 that, and we are entitled to know that, I don't think there 4 is any question but what we are enti t l e d to know w h e ther this 5 jury has read it. Then we will make the judgment of whether 6 it is or is not prejudicial. I see no reason for further 7 amplification of the material in the motion unless the Court 8 has some questions. 9 THE COURT: No, I don't believe X do. Mr. Carr? 10 MR. CARR: Your Honor, it's not unusual for cases 11 in this country where we have a free press to receive 12 publicity. It is not unusual that cases like Agent Or a n g e 13 that go to trial receive publicity. It's not unusual that 14 the Westmoreland case received publicity. S imply stated, 15 it's not at all unusual for reporters to write about 16 newsworthy lawsuits and trials. It's expected. It's part of 17 a free society. It's something to be looked at with 18 approval. The Courts in p r e s e r v a t i o n of the sanctity of the 19 jury has said that ne w s p a p e r s may write about ongoing 20 publicity, about ongoing cases, may e d i t o r i a l i z e about it, if 21 you will, in part of the exercise, but jurors are going to be 22 instructed not to read the newspaper, and if they should 23 happen to come across an arti c l e or something on TV that they 24 cannot turn their eyes away from, they are further instructed" 17 1 not to be influenced by it, to listen to only the 2 instructions of the Court, and pay attention only to the 3 facts in this case. 4 N o w , if counsel p r o perly has asked to voir dire the 5 jury, then in every occasion that has any publicity, the 6 Court should then assume that the jurors have disobeyed its 7 orders, and will again disobey its orders in the future with 8 reference to instruction and base their decision upon the 9 facts in this case. 10 Your Honor, I think that is an insult to the jury. 11 To automatically -- by q u e s t i o n i n g t h e m you are a u t o m a t i c a l l y 12 assuming that they have read these a r t i c l e s and by further 13 questioning them you are a u t o m a t i c a l l y assu m i n g they are 14 going to be preju d i c e d by it. This Court should not make 15 that assumption, and if it d oes make that a s s u m p t i o n then the 15 Courts in cases like W e s t m o r e l a n d or Agent O range or any 17 other case that receives p u b l i c i t y of every sort, every 18 morning you should start' out the jury by asking have you read 19 anything about this case; have you obeyed my instructions; 20 have you been influenced by anyt h i n g that you ma y have 21 inadvertently seen. Your Honor, that isn't -- that w o uld 22 mean then that this case, and i t 1s not -- this case and other 23 cases like it would go on forever, if you have to inquire. 24 Because there are stories about di o x i n in the newspaper 18 1 probably on a weekly basis, and not necessarily connected 2 with this case, but this Court didn't limit its instruction 3 not to read about this case. Ordered the jury to not read 4 about dioxin. Period. And be influenced here. So that 5 would require this Court to appropriately see whether the 6 jury is following out its order every day. T hat's what they 7 do. It would be silly for the Court to give instruc t i o n s if 8 it's going to ask the jury these questions every day. I've 9 been in cases in which reporters sat in the courtroom and 10 reported, often a daily basis, a case that lasted four weeks, 11 nearly on a daily, basis, in Granite City, and e v e r y day there 12 was a story, and if the Court had w a n t e d to, every d a y -- the 13 reporter didn't get it accurate all the time, m a n y tim e s and 14 got comments from people in the hallway, as well. W h a t do 15 you think of the case? How it's going. T h i n g s of that 16 sort. And the Court, if counsel is to be believed, should 17 have inquired of the jury. Wo. The requirement is, Your 18 Honor, here, is that you must assume that they h ave obeyed 19 your orders because otherwise it's insulting to them, and 20 it's incumbant upon the defendant or whoever else w a n t s the 21 jury to be voir dired to make a prima facie case before this 22 Court has the right to assume that the jury is disobeying its 23 o r d e r s . 24 And I think this Court should assume to the 19 1 contrary, that the jury w ill obey its orders, and if there 2 should have been some inadvertent publicity that we expend, 3 that it will adequately instruct the jury at the end of this 4 case that they are to disregard anything that they might have 5 seen, and they're to make their decision, as the Court will 6 do and has done in many other cases, in all other cases, make 7 the d e c i s i o n upon the evidence in this case, 8 I don't think it's proper for this Court or any 9 Court to assume the jury is not going to obey its 10 instructions, and that is what the Court would have to do if 11 it gran t e d D e f e n d a n t 's motion, and we do not join in the 12 motion, and we state that this trial should not boil down to 13 an e very day ques t i o n of the jury, and more s p e c i f i c a l l y that 14 there has been absolutely no showing that Monsanto has been 15 p r e j u d i c e d in any way. 16 The major thing they have quarreled about is 17 reported in our brief, and I'm not going to go into it, is 18 the amount of money that we have received and the initial 19 p u b l i c i t y that came from Mons a n t o and from from us. And 20 that's about all we want to say, Your Honor. 21 THE COURT: Do you have any reply? 22 MR. CRAVEN: I want to make just this observation 23 in response to some material that Mr. Carr put in a Su p r e m e 24 Court brief. We put into a responsive and germane and 20 1 relevant to his material, we put into it the settlement whi c h 2 this Court orde r e d disclosed to us, arid we filed that in a 3 Supreme Court pleading and the press picked it up. 4 Therefore, Mr. Carr is saying somehow or another we caused 5 the p u b l i c i t y on that by filing it in the Supreme Court. 6 W hat should we do? What should we do? Not file it, h i d e it, 7 get a gag order? He seems to be fond of those. If the 3 answer is that, I've never heard of filing a gag'order to 9 keep someone from knowing what was disclosed in a p l e a d i n g in 10 the S u p reme Court. But implicit in what he says, is that the 11 information that may well be in the heads of the jury is 12 prejudicial. Implicit in what he says is that's p r e j u d i c i a l 13 but you did it, so stew in your own juice. Well, that's not 14 the rule. But I am -- I at least welcome his n o tion that he 15 recognises that it could be prejudicial. We are entitled to 16 a fair trial, before a fair and impartial juror, jury, 17 w i t hout that jury having been tainted by publicity. 18 Everybody real or corporeal is entitled to a fair trial under 19 those circumstances, and I'm surprised that Mr. Carr p e r s i s t s 20 in his notion that we should prove what we are asking this 21 Court to have a hearing to find out, as a condition p r e ceding 22 to having a hearing. How do we come along and show 23 prej u d i c e ? How do we come along and show that the jury read 24 the front p a g e of their hometown newspaper? How do we do 21 1 that? Well, it's like all of the other burdens he gives us. 2 He wouldn't give us the burden if he thought we could abide 3 by it. He gives it to us w h e n he knows it's impossible. Or 4 to find out would be an impropriety, and we won't do that. 5 We think we are entitled to a voir, dire of this jury to find 6 out if they read this material and then determine what is the 7 proper course of action. 8 THE COURT: Okay, gentlemen. Next we will argue 9 the Motion for Mistrial. 10 MR. CRAVEN: Thank you, Judge. I'll start this one 11 as I started the other one, and as a matter of fact on Page 12 15 this time instead of Page 12. On Page 15 of Mr. Carr's 13 O b j e c t i o n s to the M otion for Mistrial, he says he thinks it's 14 incumbant that he remind the Court that the Court inquire of 15 Mons a n t o as to whe ther or not Monsanto would be w i l ling to be 15 bound by the result of a test case and thus avoid 17 m u l t i p l i c i t y of trials on the issue of liability at the very 18 time the Court was considering whether or not the cases 19 should be c o n s o l i d a t e d . W e l l , implicit in that I suppose is 20 that we should have accepted a test trial as an -- as the 21 basis for an objection of consolidation, and if we w o uldn't 22 accept the test trial then the appropriate punishment is to 23 conso l i d a t e the cases and end up with this kind of a 24 proceeding. But it might be helpful to look at the record 22 1 and see that on the 10th of February, 1983, that Mr- Carr 2 said to this Court as follows: They, the Defendants, suggest 3 that some time savings could occur if we picked out one case 4 and try it. And the outcome of that case would have a 5 bearing upon what happens in the other cases. I can't see 6 that at all, said Mr- Carr. "I see no poss i b l e b e a ring that 7 would have. There would be no estoppel, no verdict, no res 8 judicata. There would be no privity that would bind anybody, 9 and even if there could be, p r i v i t y could operate in favor of 10 the Plaintiff. Plaintiff would want to adduce all the 11 evidence that they believe w ould require some sort of 12 punitive damages and to render in here," etcetera, etcetera, 13 etcetera. He says no. He says, no, he wants to p r o duce all 14 the relevant facts in all of the cases because he wants to 15 try his punitive dam a g e case, and then he says this on Page 16 18 of the same t r a n s c r i p t s . "As I say, no counsel has 17 suggested that a c o n s o l i d a t e d case w o u l d take longer than a 18 year to try. All counsel have agreed that it could take from 19 six months to a year to try- If v/e took the average, say 20 nine months. All of counsel have agreed that an individual 21 case would take four months to try." And he justifies the 22 consolidation by those o b s e r v a t i o n s . 23 Mow, I'm not suggesting that he should have been 24 able to have a crystal ball and talk in terms of ho w long 23 1 these cases would take, but I can say that on the basis of 2 his representation to this Court that the consolidation, 3 consolidated case wouldn't take more than nine months to a 4 year, he proceeded to take 19 months to put on his own case 5 and -- inordinately long trial. It can be examined -- and an 6 illustration of it is Dr. Suskind. His direct t e s t i m o n y took 7 a little over two days, actually part of three days, but 8 under three total trial days. Under three total trial days. 9 And Mr. Carr in pursuit of this, what I consider to be abuse 10 of this witness, has had him on the w i t n e s s stand in cross 11 examination for 18 days, and it's b e c ause of that kind of 12 conduct, and then he turns and and says it's a d e l iberate 13 stalling, and he does this in his PR, de l i b e r a t e stalling. 14 It takes a certain amount of something to accuse one side -- 15 MR. CARR: Hutzpah. 16 MR. CRAVEN: No, I wou l d n ' t a ccuse you of having 17 hutzpah, I know what that is. W e have got a case here, 18 Judge, 64 Plaintiffs, a mixed bag of evid e n c e as we set forth 19 in Page 2 of our motion. Take the chart w i t h reference to 20 Frances Kemner. The evidence with reference to that 21 plaintiff is spread over a year, scattered all through the 22 transcript, and during that same twelv e - m o n t h period, 23 evidence as to 63 other p l aintiffs was heard. C o m p e n s a t o r y 24 damages, punitive damages, exposure, causation. Now, I am a ' 24 1 great admirer of the human mind, but I don't know of any 2 human mind that can sit around here and endure three years of 3 a trial like this and concern itself with 64 plaintiffs, 4 punitive damages, compensatory damages, and keep it straight, 5 sorted out, and for Mr. Carr to suggest that that's okay, the 6 jurors are taking copious notes indicates to me two things. 7 One, he doesn't understand the difference between copious and 8 not copious, and number two, I've watched that jury, and I 9 don't think any of them are going to get writers cramps from 10 taking notes. But it doesn't matter. Those of us that work 11 with this trial and have a v e r b a t i m transcript are lost in a 12 myriad. I've hea'rd Your Honor talk in terms of things that 13 happened and then be under a m i s a p p r e h e n s i o n as to what did 14 or didn't happen. I know that I have that same thing and 15 even Mr. Carr has been in error several times as to w h a t has 16 transpired in this case, and the fact of the matter is this 17 case is beyond human endurance. And the reason there has 18 never been another case like it is that no twelve people can 19 sit down and assimilate all of the m a t e r i a l that's come 20 through this courtroom and then report a verdict. And it's 21 for that very reason that the Appellate Court in Lowe said 22 consolidation was reversible error, was an abusive 23 d i s c r e t i o n , and that is the law of this d i s t r i c t . It is 24 indistinguishable from this case, except in some minor, 25 1 minor, minor irrelevant ways. That case didn't involve 2 punitive damages. This one does. That case involved 47 3 plaintiffs. This involved originally 72, now 64. That case 4 took 142 trial days. We are already at 385 or 390. 390 5 trial days. And the error started when this Court 6 consolidated these cases. This case is completely out of 7 hand. It is -- it's time for something called judicial 8 euthanasia. It's time to terminate this kind of a proceeding 9 because it's an aberration. There isn't a person in this 10 room or in the jury box that is capable of telling what this 11 case is about with any detail, or capable of taking and 12 recalling and reacting to and following any kind of 13 instructions w ith reference to damages, causation, p u n i t i v e 14 damages. This case is out of hand. This case is an 15 embarrassment. This case should be mistried at this stage 16 because it is, I think, riddled with reversible error. The 17 most prominent being -- one of the most pro m i n e n t being the 18 order for consolidation which we have c o n s i s t e n t l y opposed. 19 Consistently opposed. 20 We have -- in the Lowe case they had 14,500 pages 21 of transcript. We have well in excess of that. We have more 22 plaintiffs. We have everything, and Judge, the express, 23 express holding in Lowe, and I know it's the Fourth D i s t r i c t 24 sitting in the Fifth District, but they are not d e v o i d of " 26 1 judicial power when they are assigned to hear the case. I t 's 2 the Fifth Distr i c t opinion. And that is the law of the State 3 of Illinois on con s o l i d a t i o n of cases. That opinion is A binding on on this Court, and we filed this motion for the 5 mistrial on the basis of the consolidation on this second 6 a n n i v e r s a r y of this trial, having consistently opposed it, 7 and I don't b e l iev e there is any fair reading of the Lowe 8 case that d o e s n ' t say Your Honor is supposed to m i stry this 9 case, because to continue the trial will cause a reviewing 10 Court to say that this c o n s olidation was reversible error, 11 that this trial was horrendous mistake. That jury cannot 12 sort out these plain t i f f s and that this thing ought to stop. 13 It shouldn't ever have started the way it is. 14 Mow, I want to say one thing that there are a who l e 15 bunch of cases over in St. Louis, same identical 16 circumstances, and Mr. Carr filed his supplement and in that 17 he suggested that -- 18 THE COURT: I read it. 19 MR. CRAVEN: And that I find very provocative. 20 That was drawn with great care and it was a suggestion to the 21 Court in St. L ouis that that Court as a matter of law 22 determine the matter set forth in that motion, and it was a 23 legal det e r m i n a t i o n for the Court, and we expressly said that 24 we w a n t e d the c o n s o l i d a t e d hearing for the narrow purpose of 27 1 determining this and for no other purpose, and we were not 2 thereby waiving any objections to subsequent consolidations 3 and so forth and then for him to come along and take that and 4 assert that that was a waiver of consolidation is simply not 5 presenting the full import of that St. Louis motion to this 6 Court. The trial of a lawsuit is designed to assert truth 7 and give parties a fair trial. I don't believe that anybody 8 will c o n tend that this jury with this massive material can in 9 any way arrive at a judgment as to any plaintiff. Right now 10 you could ask the jury, you know, pick out the name of a 11 plain t i f f and ask the jury something about that person and I 12 would venture to say that few, if any of them, would know. 13 If the law is to have any stability, we have traveled in the 14 footsteps of those who have gone before, somebody said, and 15 this Court has to do that, and Judge, the Lowe case and not 16 the class action cases that Hr. Carr has cited to the Court, 17 class action c ases are not relevant to the question of 18 consolidation. The Lowe case is a barrier to any further 19 proceeding in this court under this Court's order of 20 consolidation. A n d , we already know that three judges of the 21 Supreme Court are per s u a d e d that the order in limine, both of 22 them, should be reversed. I think that's what the order 23 says. We know that the Lowe Court would say this 24 consolidation is reversible error. We know that this jury 28 1 can't fairly decide this case. 2 I see jurors who are not always awake. As a matter 3 of fact, sometimes I find it difficult after lunch to be 4 really alert. 3ut to ask these people to come into this 5 courtroom and to hear this material, day after day after day 6 after day for 385 days tells the public that there is 7 something wrong with a judicial process, and to inflict that * 8 on 12 citizens, 14 now, and pa y them $5 a day for these 9 number of days, any time you talk about this case, anyplace, 10 under any circumstances, to any group, it is an 11 embarrassment, because they say what do you do to people? 12 What do you do to jurors? Why have you done this? Why do 13 you mix this all up? And the base for the error was this 14 Court's order conso l i d a t i ng the cases. And now it's engraved 15 in stone,, and this should be undone and terminated, judicial 16 euthanasia is the kindest thing that we can do; because it is 17 economic burden on anybody, the Plaintiffs, the defendant, 18 the county, the jurors, everybody. 19 And under the Lowe case, that which this Court has 20 done is an abusive discretion, reversible error, and the time 21 to correct it is now. V7e think the motion for mistrial 22 should be granted and granted instanter. 23 THE COURT: Okay. Mr. Carr? You were finished., 24 weren't you? 29 1 MR. CRAVEN: Yes, I was. 2 MR. CARR: Your Honor, I'd like to correct a few 3 comments of Mr. Craven about the jury. The jury has been 4 from the beginning the most attentive jury that I'm familiar 5 with yet, the jury is obviously happy. You can hear the 6 laughter in their recesses. They're happy with one another. 7 They are happy with the case. And they recognize that they 8 are on a case that will be monumental in its effect upon our 9 American community and hopefully more than America with its 10 final decision. 11 I might point out, as the Court is aware, on 12 occasion there have been an opportunity for the p o s s i b i l i t y 13 of proceeding without other jurors, without jurors here, and 14 they have let the Court know as the Court has a d v i s e d in the 15 past that they don't want to be excused. The Court will 16 recall when we had Juror, I forget her name, Melton, had her 17 appendectomy, that the Court was in the p r o cess of h aving the 18 bailiff line up the jurors to go on and she let it be known 19 that she was unhappy that the case might go on w i t h o u t her. 20 And, if you recall one juror that had a p r o b l e m with over 21 heating or hyperventilation was being taken from the 22 courtroom about a year ago, she raised up from her stretcher 23 and said, I'll be back, I'll be back. Nov/ this jury is a 24 happy jury. They express a b solutely no d i s s a t i s f a c t i o n with 30 1 the case nor with the length of the case. They express no 2 dissatisfaction with the Court and counsel. I might say they 3 are unfailingly attentive to both sides, and they yet 4 continue to take notes when it's appropriate so to do. 5 I feel that the jury is one to be proud of and they 6 recognize that they are doing something important and will do 7 something important in the final analysis. 8 With reference to the comments counsel has made 9 about the motion in St. Louis, what counsel has failed to 10 acknowledge is that Monsanto took the position in St. Louis 11 that the dictates of judicial committee would require the 12 hearing that they want over there be a consolidated hearing 13 in order not to have 55 separate trials. Monsanto, out of 14 the corner of its mouth that resides in Missouri, says we 15 need this case, this hearing on their peti t i o n in Missouri 16 c onsolidated and not heard 55 separate times. They 17 acknowledge that. They also acknowledge that to have the 18 Court understand the issues involved in their 55 petitions it 19 would be best to hear it at one time, because they want to 20 put all the evidence in because it all bears upon -- all the 21 evidence in the 54 bears upon the result in the 55th case, as 22 they have acknowledged. And, Your Honor, both of those 23 points apply here, that Monsanto is not saying that here. 24 And Monsanto is taking the position here simply Decause this 31