Federal judge denies motion for new trial, says keeping juror was OK

Jessica M. Karmasek Oct. 2, 2012, 10:00am


MINNEAPOLIS (Legal Newsline) - A federal judge last week refused to change a jury verdict reached earlier this year in a lawsuit over Johnson and Johnson's drug Levaquin, despite a juror's connection to the defendant pharmaceutical company.

Judge John R. Tunheim, for the U.S. District Court for the District of Minnesota, upheld a jury's finding in January that defendants Johnson and Johnson and Janssen Pharmaceuticals Inc. failed to adequately warn plaintiff Clifford Straka's prescribing physician of the risks associated with Levaquin but that the companies' failure to warn was not a "direct cause" of the man's injuries.

Levaquin is often used to treat severe or life-threatening bacterial infections or bacterial infections that have failed to respond to other antibiotic classes.

In this case, Straka said the companies failed to warn his physician about the risk of tendon rupture.

Tunheim, in his 20-page ruling Friday, denied Straka's motion for a new trial.

Among his arguments, Straka claimed the trial court should have excused one of the jurors after she became aware of a business connection with the defendants.

But Tunheim said the lower court's denial of Straka's motion to strike the juror -- referred to in court documents as "Juror Biorn" -- was not legal error meriting a new trial.

After several weeks of trial but before deliberations began, Biorn disclosed to the lower court that her company, BMI, does work for Reed Group, the disability insurance carrier for Johnson and Johnson.

Biorn said she became aware of the connection when she returned to her office on a day the court was not in session.

While Biorn was reviewing her schedule with her human resources manager, the manager remarked that Johnson and Johnson was in the caption on the schedule and "made reference of that," saying, "I'm surprised he didn't pull you from having a conflict for the fact that we support Johnson and Johnson business."

Biorn could not recall having ever worked on a Johnson and Johnson case, and she indicated she was unaware what proportion of her work came from Reed Group and what proportion of Reed Group's claims came from Johnson and Johnson.

When asked if her company's connection with Johnson and Johnson would affect her ability to be fair and impartial, the juror said no.

At this point, Straka moved to remove Biorn on the ground that knowledge of her connection to Johnson and Johnson would have affected the way he used his preemptory strikes.

The trial court denied the motion because it found Biorn's connection to be attenuated and because she averred her ability to be fair.

On appeal, Straka argued that Biorn should have been excused.

"Straka does not present any evidence of actual bias but instead argues that the doctrine of implied bias required the court to strike Juror Biorn," Tunheim wrote.

The doctrine of implied bias -- also referred to in some cases as "implicit bias" -- requires a court to strike a juror in "extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances."

Even if implied bias is sometimes applicable, Biorn's circumstances do not warrant it because they are not "extreme," "extraordinary" or "exceptional," Tunheim said.

"Biorn did not have the type of financial relationship that would require the court to presume implied bias: she was not employed by Defendants, or even employed by a company that worked directly for Johnson and Johnson," the federal judge wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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