Opposition Brief — In re Albert

85-620

Petition for a Writ of Certiorari from the

United States Court of Appeals for the Sixth Circuit

CATHERINE and FRANK HELMINSKI,

as Next Friends of HUGH HELMIN-

skI, a Minor,

Petitioners ,

VS. Supreme Court No. _

Circuit Court No. 83-1726

[766 F.2nd 208 (1985)]

District Court No. 82

70042

AYERST LABORATORIES, a Division

of American Home Products Cor

poration, a Delawate corporation,

Respondent.

Brian J. McKEEN

Attorney for Petitioners

“4 ~

MiIcHAEL L. UppDIKE

Attorney for Respondent

BRIEF OF RESPONDENT AYERST

LABORATORIES IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI OF PETITIONERS

CATHERINE AND FRANK HELMINSKI

KOHL, SECREST, WARDLE, LYNCH,

CLARK and HAMPTON

Dated: October 10, 1985 By: Michael L. Updike

Attorneys for Respondent Ayerst

Laboratorwes

Post Office Box 3040

30903 Northwestern Highway

Farmington Hills, Michigan 48018-8040

(313) 851-9500

RENAISSANCE PRINTING, INC., 1133 GRISWOLD

4TH FLOOR, DETROIT, MICHIGAN 48226 (313) 964-3185

copy

dL, JR

Jn the Supreme Court of the Gnited States. ‘

BEST AVAILABLE

COUNTERSTATEMENT OF THE

QUESTION PRESENTED

IS A TRIAL COURT CORRECT IN EXCLUD-

ING A MINOR PLAINTIFF FROM THE LIA-

BILITY PORTION OF A BIFURCATED PRO-

DUCTS LIABILITY TRIAL, WHEN ALL

PARTIES TO THE ACTION AGREE TRE

MINOR PLAINTIFF IS AUTISTIC, HAS THE

EMOTIONAL MATURITY OF A TWO-YEAR

OLD CHILD, HAS NO CONTROL OVER HIS

BODILY FUNCTIONS, IS UNABLE TO COM-

PREHEND COURTROOM PROCEEDINGS

OR OTHERWISE ASSIST COUNSEL IN THE

PRESENTATION OF HIS CASE, AND

WHOSE PRESENCE WOULD BE UNDULY

PREJUDICIAL TO THE DEFENDANT?

The Petitioners contend the answer to the question is ‘ No’’.

The Respondent contends the answer to the question is

“.".

The District Court, the Honorable Robert E. Demascio of the

United States District Court for the Eastern District of

Michigan, answered the question ‘‘Yes’’.

The Court of Appeals, the Henorabie Anthony J. Celebrezze,

the Honorable Albert J. Engel, and the Honorable Damon J.

Keith of the United States Court of Appeals for the Sixth Cir-

cuit answered the question ‘‘Yes’’, providing the Minor Plain-

tiff was examined by the District Court prior to exclusion.

il

TABLE OF CONTENTS

Counterstatement of the Question Presented ......

Indies: of Asustiesitins 2... .464s cata ee

Summery of Argumemt .. 66. 6b eee

Argument

A trial court is correct in excluding a minor plain-

tiff from the liability portion of a bifureatea pro-

ducts liability trial, when all parties to the action

agree the minor plaintiff is autistic, has the emotion-

al maturity of a two-year old child, has no control

over his bodily functions, is unable to comprehend

courtroom proceedings or otherwise assist counsel

in the presentation of his case, and whose presence

would be unduly prejudicial to the defendant.

I.

IT.

ITI.

IV.

Certiorari should be denied because of the

lack of a substantial Federal question. ..... .

The action of the District Court, affirmed by

the Sixth Circuit, was in accord with settled

and well-reasoned precedents.............

The authorities cited by the Petitioners 2re in-

applicable to the facts of the instant litigation . .

The paramount concern of the American sys-

tem of justice, correctly recognized by the

Sixth Circuit, is to guarantee all parties a fair

trial . ods csdue dee beeen

12-15

15-17

ill

PAGE

V. The Sixth Circuit did not err by allowing

persons unable to understand proceedings or

to assist counsel to be excluded from the lia-

bility portion of a bifurcated products liabil-

OS Ee err eee ee ce ee 20-22

VI. The Sixth Circuit did not err in allowing the

decision of the District Court to exclude the

incompetent minor without an in-court exam-

ination of the minor to stand ............-- 23-24

Conclusion and Request for Relief... ......-.-- 25

iv

INDEX OF AUTHORITIES

CASES

Anderson v. Sears, Roebuck & Company, 377 F.

ee ere

Andes v. Lauer, 80 Ill App 3rd 411; 35 Ill Dec 701;

Se TU SOC ROED 0 55.6 5 owe we one us

Appleton v. Matthews, 16 Ohio Misc 130; 45 Ohio

Opin 2nd 90; 238 NE2nd 846 (1968) ......

Bartholomay v. St. Thomas Lumber Company, 148

ee ye

Brown v. United States, 411 U.S. 223 (1973). .....

Bruton v. United States, 391 U.S. 123 (1968). .....

Bryant v. Kansas City Railways Company, 228

a | ee

Carlisle v. County of Nassau, 64 AD2nd 15 (1978). .

Carrington v. Rash, 380 U.S. 89 (1968) .........

Casson v. Horton, 226 Md 575; 174 A.2nd 581

Es AS 5a a a bY i oe ais as

Chicago Great Western Railway Company v. Beecher,

150 F.2nd 394 (8th Cir., 1945), certiorari denied,

ee ee eee

Dickson v. Bober, 269 Minn 334; 130 NW2nd 526

DN etek eee epee Oi ew Pugs

Dublin Sportswear v. Charlett, 485 Pa 633; 403

PE 5.8% SN Sa ees ee Ke eke ews

Fillippon v. Albion Vein Slate Company, 240 U.S. 76

a ae ee ra ee ree

Florida Greyhound Lines v. Jones, 60 SW2nd 396

eer rrr rE ear

PAGE

18,

18,

13, 14,

16

15

Griffin v. County School Board, 377 U.S. 218

(Pree yeeeeur, TTT reer Cree cere e

Heck v. Anderson, 12 NW2nd 849 (Iowa, 1944) ...

Helfferich v. Farley, 36 Conn Sup 333; 419 A.2nd

it. er entre ety ee

Helminski v. Ayerst Laboratories, 766 F.2nd 208

i) eer rs errs ere eee

Hunter v. Szumlawskt, 124 Mich App 521 (1983) ..

Indiana & Michigan Electric Company v. Miller, 19

Mich App 16 (1969), leave to appeal denied, 383

et.) ns er ern

In re Watson, 91 Cal App 3rd 455 (1979) ........

Irvin v. Dowd, 366 U.S. 717 (1961) ..... 6.6...

Kotteakos v. United States, 328 U.S. 750 (1946)....

Loving v. Virginia, 388 U.S. 1(1967)........-.-

Lunney v. Graham, 91 AD2nd 592; 457 NYS2nd

fee re torre see ere eee

Lutwak v. United States, 344 U.S. 604 (1953) .....

McDonough Power Equipment Company, Inc. v.

Greenwood, ____._ U.S. . L.Ed.2nd

s 906S.Cr. 845 (1904)... cece

Morley v. Superior Court of Arizona, 131 Ariz 85; 638

P.2nd 1331 (1981), rehearing denied ..........

Odom v. Corn Products Refining Company, 173 Ill

ee terre ere rer tee

PAGE

11,

18,

18,

18, 20,

tz, 83,

vi

Purvis v. Inter-County Telephone & Telegrath Com-

pany, 203 So. 2nd 508 (Fla. App., 1967), rehearing

“seats co ERR TTT yey:

Railway Express Agency, Inc. v. New York, 336 U.S.

rate fae eee QO ee eR en Bie Ain adios

Raper v. Berrier, 246 NC 193 STE 6s «as kee cn

Smith v. Phillips, 455 U.S. 209 ( Mee

COURT RULES:

Federal Rule of Civil Procedure 61 ..........

PAGE

15

21

16

18

24

COUNTERSTATEMENT OF THE CASE

I. PROCEDURAL HISTORY

This case is a drug products liability action, filed in the

United States District Court for the Eastern District of Michi-

gan on January 7, 1982. The plaintiffs, Petitioners here,

claimed that the im utero exposure of Hugh Helminski to an

anesthesia gas known as Fluothane caused him to develop

autism. The Fluothane had been marketed in the United

States by Ayerst Laboratories, Respondent here.

The case went to trial before The Honorable Robert E.

Demascio and a jury on August 15, 1983. The trial was bifur-

cated into liability and damages portions. The liability portion

of the trial concluded in a jury verdict of no cause for action on

August 26, 1983.

On September 25, 1983, the Petitioners moved for a new

trial, based on various errors alleged to have occurred during

the course of trial. The motion was denied in an Order of the

District Court dated March 28, 1984.

The Petitioners appealed as of right to the United States

Court of Appeals for the Sixth Circuit. On June 25, 1985 the

Sixth Circuit, Senior Circuit Judge Anthony J. Celebrezze

and Circuit Judges Albert J. Engel and Damon J. Keith, af-

firmed the decision of the District Court not to grant the Peti-

tioners a new trial. The decision of the Court of Appeals is

reported at 766 F.2nd 208 (1985) and was written by Senior

Circuit Judge Celebrezze.

On September 23, 1985 the Petitioners filed a Petition for a

Writ of Certiorari with this Honorable United States Supreme

Court. The instant Brief in Opposition of Respondent was filed

in due course.

Il. RELEVANT FACTS

Petitioners are certified registered nurse anesthetists.

(R:29-30/JA:152-153)' Mrs. Helminski worked as a certified

registered nurse anesthetist at Holy Cross Hospital in Detroit,

Michigan from 1959 until the time of trial. In January, 1966,

Mrs. Helminski became pregnant with her second child. Dur-

ing her pregnancy, Mrs. Helminski participated as the anes-

thetist in 148 operations. Approximately 140 of those opera-

tions involved the administration of Fluothane *.esthesia gas.

(R:35, 42, 50; JA:50, 158, 160)

Fluothane is the trade name for halothane, an anesthetic. It

was developed in Great Britain in the 1950's. Ayerst Labora-

tories received permission from the Federal Food and Drug

Administration to market Fluothane as a surgical anesthetic in

1958. (R:570-571, 573-574; JA:301-302, 323-324)

In September, 1966 Hugh Helminski was born. He was

eventually diagnosed as being autistic. At the time of trial,

Hugh Helminski required 24-hour care and could not be left

alone in public. He was not toilet trained, and required con-

stant watching to make sure he did not get into trouble. He

did not speak. The Helminskis were unable to go anywhere as

a family because of Hugh Helminski’s inability to control his

behavior. He could not be taken to a restaurant, church, pub-

lic bathroom, or even a playground, if others were present.

(R:67, 73-74, 79, 175, 527; JA:174-176, 301)

Mrs. Helminski’s first child was born in 1957. Her third

child was born in 1970. Neither child suffers from autism or

' Material here is referenced to testimony introduced at trial of this case.

““R”’ refers to pages within the trial transcript, while ‘‘JA’’ refers to

pages within the Joint Appendix submitted by the parties to the United

States Court of Appeals for the Sixth Circuit.

any similar problem. During her third pregnancy she contin-

ued to work as a certified registered nurse anesthetist and

administered Fluothane anesthetic to patients. (R:33, 64-65;

JA:156, 171-172)

On January 7, 1982, Mr. and Mrs. Helminski, as Next

Friends of Hugh Helminski, filed suit against Ayerst Labora-

tories in the United States District Court for the Eastern Dis-

trict of Michigan. Their Complaint was in six counts, but

could fairly be summarized as a drug products liability claim.

( JA:1-9)

At trial, the Helminskis presented seven (7) witnesses. The

first witness was Mrs. Helminski, who gave factual testimony as

to her use of Fluothane and the condition of Hugh Helminski.

The second witness was Robert Laird, an alleged expert

witness in the area of pharmacology. During cross-examination

it was established that Mr. Laird had never been licensed to

practice medicine except briefly during World War II, had

been fired or laid off from the Parke-Davis pharmaceutical

firm, and had been terminated as an Assistant Professor at

Wayne State University because it was ‘‘doubtful he could

ever become a productive basic scientist’? in pharmacology.

(R:148, 170, 178-179; JA:189, 211, 215, 219-220)

During the course of his testimony, Mr. Laird admitted he

could not specify the extent of Mrs. Helminski’s exposure to

Fluothane. He also admitted there was no published scientific

research in any way linking exposure to Fluothane with au-

tism. Finally, he admitted that the most recent research indi-

cated there was no evidence of any correlation between birth

defects of any sort and general anesthesia agents, including

Fluothane. (R:220-221, 249, 259-260, 288, 294; JA:

246-247, 249, 250-253)

The third witness called by the Helrainskis was Dr. Mark

Thoman. Dr. Thoman testified he spent 15% to 20% of his

time testifying on behalf of plaintiffs in birth defect cases. In

his opinion, Ayerst should have done animal testing to deter-

mine whether exposure to Fluothane while pregnant could

lead to birth defects or autism. On cross-examination, how-

ever, Dr. Thoman admitted he had previously testified in

another case that animal testing was not particularly useful in

determining a product’s toxicity towards humans. (R:376-

378, 398-399, 403, 405; JA:204, 254-258, 262, 278)

The fourth witness called by the Helminskis was Dr. Thomas

Corbett. Dr. Corbett offered no opinion as to whether there

was a causal link between Mrs. Helminski’s exposure to

Fluothane while pregnant and Hugh Helminski’s autism. He

did admit, however, that his own scudy of nurse anesthetists,

performed during 1972-1976, did not indicate exposure to

anesthesia produced birth defects. (R:494, 513; JA:288, 292)

The fifth witness called by the Helminskis was Dr. Foster

Redding. Dr. Redding testified he had examined Hugh

Helminski in 1983 and diagnosed him as autistic. He offered

no opinion as to the cause of autism, noting the cause was not

presently known to science. (R:519-520; JA:296-297)

The sixth witness called by the Helminskis was Francis J.

Helminski, the older brother of Hugh Helminski. He testified

that Hugh Helminski was not toilet trained and required con-

stant attendance.

Prior to calling their seventh and final witness, the Helmin-

skis, through counsel, informed the Court that they would be

presenting Hugh Helminski as a ‘‘witness’’, although he was

obviously unable to give any testimony. After considerable

discussion, the District Court bifurcated the trial into liability

and damages portions, with Hugh Helminski to be excluded

w

from the liability portion only. The District Court, Judge

Demascio, stated:

‘‘T see no purpose at all to it [the presentation of Hugh

Helminski to the jury] other than to inflame the jury.

And that is not the purpose of a court room. It is not the

purpose of a trial. We are really here to determine wheth-

er or not there is truth to the claim that there is a causal

connection between the exposure of a pregnant woman

and autistic birth.”’

(R:533-535; JA:305-307)

The final witness called by the Helminskis was Mr. Frank

Helminski, father of Hugh Helminski and one of the Peti-

tioners here. He ‘‘imagined’’ that his wife had been exposed

to comparatively high levels of Fluothane while administering

anesthesia at Holy Cross Hospital. (R:536, 542, 544; JA:308,

314, 316)

The District Court dened an Ayerst motion for a directed

verdict and ordered Ayers to present its case in chief. Ayerst

called three witnesses. The first witness was Dr. John B.

Jewell, former Medical Director for Ayerst. He testified that

extensive animal testimony of Fluothane had been conducted

during 1951-1954, while Ayerst had conducted extensive

clinical studies both before and after FDA approval of the

drug. There had never been any report anywhere linking ex-

posure to Fluothane with autism. (R:567-580, 587, 610;

JA:321-329, 332, 330)

The second witness called by Ayerst was Dr. David Ben-

jamin, a neurologist. He had examined Hugh Helminski, and

concluded he was autistic. However, no one knew how autism

worked or why it occurred. (R:628; JA:333)

The third and final witness called by Ayerst was Dr. Ed-

ward R. Ritvo, a doctor specializing in autism. He testified

there was some evidence autism may be genetically linked.

However, there was no relationship between Hugh Helmin-

ski’s autism and his mother’s exposure to Fluothane while

pregnant. Dr. Ritvo stated:

‘There isn’t the slightest shred of evidence that the

anesthetic gas exposure [to Fluothane] in any way caused

the [autism] syndrome to develop in [Hugh Helminski].

There just isn’t the slightest evidence that there is a con-

nection between the two.”’

Dr. Ritvo further opined there was no way to correlate ex-

posure to Fluothane with autism, as there was a total absence

of any causative factor. (R:671-672, 677-679; JA:336-337,

338-340)

Following usual motions, closing arguments and instruc-

tions, the jury returned a verdict of no cause for action. The

Heiminskis sought a new trial, raising six points of error. The

District Court rejected each point, and denied the Helmin-

skis’ motion. On appeal to the United States Court of Appeals

for the Sixth Circuit, the Helminskis reduced their claim of er-

ror to three points: the claim by Ayerst that the Helminski

case was the first of its kind during trial; the bifurcation of the

trial; and the exclusion of Hugh Helminski from trial follow-

ing bifurcation. The Sixth Circuit rejected all three, but focus-

ed most of its attention on the exclusion of Hugh Helminski.

The Sixth Circuit concluded there was no absolute right of a

party to be present at a civil trial, but that any involuntary ex-

clusion must comport with due process. Due process required

a determination by the trial court that (a) the person sought to

be excluded was unable to comprehend courtroom _pro-

ceedings or otherwise assist his or her counsel, and (b) the

presence of the person would be prejudicial and contrary to

the interests of justice.

In their Petition to this Supreme Court, the Helminskis

have reduced their claim of error to one: the exclusion of

Hugh Helminski during the liability portion of the trial.”

SUMMARY OF ARGUMENT

The instant Petition for a Writ of Certiorari should be

denied by this Supreme Court because no substantial Federal

question is presented by the Petitioners. It is well established

that no absolute right to be physically present at all phases of a

civil jury trial exists. The circumstances of this case, specifical-

ly the bifurcation of the trial into liability and damage portions

and the inability of the incompetent minor to assist counsel or

otherwise participate in the proceedings, fully justify the deci-

sion of the District Court to exclude the incompetent minor

from the liability portion of the trial. The Sixth Circuit was

similarly justified in affirming the decision of the District

Court.

Courts that have considered situations analogous to the one

at bar have concluded the interests of justice are served by

(a) bifurcating trials into liability and damage portions, and

(b) excluding anyone unable to assist counsel or otherwise

participate in courtroom proceedings from the liability por-

tion, where the presence of the individual would likely pre-

judice the jury. This course of action promotes a fair trial by

keeping the ‘ury impartial. A person’s disability or its extent is

irrelevant on the issue of liability.

The authorities cited by the Petitioners have no application

to the case at bar. All of the authorities deal with cases where

2 It is recognized the Petitioners present three questions for review.

However, all three revolve around the exclusion of Hugh Helminski.

there was no bifurcation of a trial into liability and damage

portions, or are ctherwise inapplicable to the facts of the in-

stant litigation.

The paramount concern of the American system of justice

is to provide all litigants a fair trial. A fair trial essentially

means that a litigant has a right to have his or her case heard

by an impartial panel. In the case at bar, the incompetent

minor’s condition (autism, emotional maturity of a two year

old child, lack of toilet training, inability to communicate, un-

controllable outbursts) was completely irrelevant on the issue

of liability. The only reason the Petitioners sought to present

the incompetent minor was to prejudice the jury against the

Respondent, the Petitioners’ liability case having largely col-

lapsed. Balancing the Respondent’s absolute right to have a

fair trial and the incompetent minor’s conditional right to be

present in court, the only logical course was to bar the in-

competent minor from the liability portion of the case. This

was recognized by the District Court and the Sixth Circuit,

and does not merit further review by this Supreme Court.

Due process and equal protection do not require that all

persons be treated alike. Only if classifications are arbitrary or

invidious does a violation of due process and equal protection

occur. In the case at bar, mentally incapacitated individuals

may legitimately be treated somewhat differently than

physically handicapped individuals because of the underlying

purpose of allowing litigants to attend trial. That purpose is to

allow litigants to assist counsel in the presentation of their

case. The mentally incapacitated cannot assist counsel. It is

therefore not a violation of due process and equal protection

wk.:n an autistic minor, requiring 24-hour a day care and

unable to communicate with others, is excluded from the

liability portion of a bifurcated products liability case.

The Sixth Circuit held that a mentally incapacitated minor,

such as the incompetent minor in the case at bar, may be ex-

cluded from the liability portion of a bifurcated trial, but only

after an examination by the trial court. The District Court did

not perform this examination in the instant litigation.

However, the Sixth Circuit correctly recognized no reversible

error occurred, inasmuch as the condition of the incompetent

minor was made clear to the jury and the incompetent minor

could not assist counsel or otherwise participate in the pro-

ceedings. Litigants are only entitled to a fair trial, not a perfect

one. The error of the District Court did not deprive the Peti-

tioners of a fair trial, and so forms no basis for reversal.

ARGUMENT

A TRIAL COURT IS CORRECT IN EX-

CLUDING A MINOR PLAINTIFF FROM

THE LIABILITY PORTION OF A BIFUR-

CATED PRODUCTS LIABILITY TRIAL,

WHEN ALL PARTIES TO THE ACTION

AGREE THE MINOR PLAINTIFF IS

AUTISTIC, HAS THE EMOTIONAL

MATURITY OF A TWO-YEAR OLD CHILD,

HAS NO CONTROL OVER HIS BODILY

FUNCTIONS, IS UNABLE TO COM-

PREHEND COURTROOM PROCEEDINGS

OR OTHERWISE ASSIST COUNSEL IN THE

PRESENTATION OF HIS CASE, AND

WHOSE PRESENCE WOULD BE UNDULY

PREJUDICIAL TO THE DEFENDANT.

I. CERTIORARI SHOULD BE DENIED

BECAUSE OF THE LACK OF A

SUBSTANTIAL FEDERAL QUESTION.

10

The Petitioners maintain the instant case presents an im-

portant Federal question, specifically the right of a party to be

present at a civil jury trial. The Respondent suggests that no

such question is involved, and the facts of the case militate

against the granting of certiorari even if the Supreme Court

wished to consider the issue of exclusion of parties from jury

trials.

In the case at bar, there was absolutely no disagreement as to

the condition of the excluded party, Hugh Helminski. He had

no control over either his bodily functions or his behaviour, and

had to be watched constantly. It was utterly impossible for him

to have either understood the proceedings in the District Court

or have assisted his counsel in any way. The only argument

raised as to why he should have been present? was his purported

constitutional ‘‘right’’ to be present.

‘“Your Honor, my response [to the Respondent’s objec-

tion to the production of Hugh Helminski] would be that

the right to trial by jury, specifically a civil trial, is a right

that’s embodied in amendments to the United States

Constitution, and the Plaintiff in this litigation is the

minor, Hugh Michael Helminski. He has every bit a

right to be part of this proceeding as Mr. Alteri [co-trial

counsel for Respondent] or myself to be present.’’

* There was and is a curious inconsistency in the Petitioners’ argument.

The Petitioners maintain in effect there is an absolute right of parties, in-

cluding Hugh Helminski, to be present during the liability portion of a

bifurcated drug products liability trial. However, at trial they: (a) initial-

ly had no plans to bring Hugh Helminski to trial, and (b) indicated to the

District Court they planned to show him to the jury for no more than

‘‘five minutes or so’’, so the jury could ‘‘visualize’’ him. Ifa party has an

absolute right to be present at trial, it would seem to apply for the entire

trial, and not some minute fraction of the trial. In the case at bar the trial

lasted seven days.

te

11

Remarks of Thomas Bleakley, trial counsel for the Peti-

tioners. (R:532; JA:304)

There is no provision in the United States Constitution, nor

in any of the-twenty-six Amendments to the Constitution, that

establishes a right, absolute or otherwise, of a civil litigant to

be present at all phases of a jury trial. No statute of the United

States, nor any statute of any of the several states, has created

such a right. No decision of this Supreme Court has ever

fcund such a right to exist by implication in the Constitution

or statutes of the United States.

The general rule is that, while a party normally has a right

to be present during civil jury trials, the right is not absolute.

Casson v. Horton, 226 Md 575; 174 A.2nd 581 (1961); Heck v.

Anderson, 12 NW2nd 849 (Iowa, 1944). Parties can be exclud-

ed if the circumstances warrant it. Helfferich v. Farley, 36 Conn

Sup 333; 419 A.2nd 913 (1980); Lunney v. Graham, 91 AD2nd

592; 457 NYS2nd 282 (1982); and Dublin Sportswear v. Charlett,

485 Pa 633; 403 A.2nd 568 (1979). A party should not,

however, be excluded if his or her presence would be of impor-

tance to counsel in the cross-examination of witnesses or in the

general conduct of the case. Hunter v. Szumlawski, 124 Mich

App 521 (1983). In the case at bar, it was undisputed that

Hugh Helminski could not possibly have any understanding

of the proceedings at trial, or be of any assistance to counsel.

Respondent suggests the general rule outlined above is

soundly based in both law and logic. There is no good reason to

modify it. Even if this Supreme Court wished to examine the

issue of a party’s right to be present at a civil jury trial, the in-

stant case would not be a suitable vehicle because of the ex-

treme facts. Given the facts of Hugh Helminski’s condition, his

lack of control over bodily functions and behavior, his inability

to comprehend the proceedings and so forth, it would be dif-

ficult if not impossible to fashion a rule of general application.

Accordingly, the Petitioners’ request for a Writ of Certiorari

should be denied.

12

Il. THE ACTION OF THE DISTRICT

COURT, AFFIRMED BY THE SIXTH CIR-

CUIT, WAS IN ACCORD WITH SETTLED

AND WELL-REASONED PRECEDENTS.

Petitioners imply that the action of the District Court was

without precedent. That is simply not true. A number of

courts have considered fact situations virtually indistin

guishable from the one at bar and have taken the same action

as the District Court. In Morley v. Supertor Court of Arizona, 131

Ariz 85; 638 P.2nd 1331 (1981), rehearing denied, the plaintiff

had been injured in an automobile accident and was in a

coma. The trial court bifurcated the trial into liability and

damage portions. The plaintiff was excluded from appearing

in court during the liability portion of the trial. The Arizona

Supreme Court explained:

‘*The record before us would support a finding in the in-

stant case that the evidence relevant to the two issues [of

liability and damages] is unrelated. Moreover, because

we hold infra that Paul Morley [the plaintiff in the coma]

has a right to appear before the jury during trial of the

damages issue but not the liability issue, severance

prevents undue prejudice to the City of Scottsdale [the

defendant] which would result if the jury saw Morley’s

injuries before it considered wheter the City was liable

for those injuries. Severance wil! insure that Paul Morley

will be present only when his presence is relevant to this

case.”’

Morley, at 1333.

The Arizona Supreme Court made it clear that the injured

plaintiff was beng excluded only because the trial had been

bifurcated. He could not be excluded from trial if liability was

found and the issue of damages had to be tried.

13

‘‘Having considered the various precedents, we believe

the best rule is applied in Dickson v. Bober, 269 Minn. at

338 n. 3, 130 NW2nd at 530 n.3 (1964). ‘[A] plaintiff

unable by. reason of his injuries to contribute to or

understand the trial proceedings’ may be excluded, in

the court’s discretion, from the trial of the /iadility issue if

the plaintiff will be ‘fully and adequately represented by

counsel.’ Jd. at 337, 130 NW2nd at 530. A plaintiff

unable to communicate with counsel will have no right

denied by exclusion from the courtroom during the

liability portion of the trial. If in addition the plaintiff's

physical condition, allegedly caused by the defendant, is

so pitiable that the trial court determines the plaintiff's

mere presence would prejudice the jury, then failure to

exclude the plaintiff during the liability phase would

deny the defendant’s right to an unbiasd jury when the

source of the bias is totally irrelevant to the liability

issue.

Morley, at 1334, emphasis provided by the Arizona Supreme

Court. Petitioners objected to the bifurcation of the trial of the

case at bar into liability and damage portions in the District

Court and the Court of Appeals, but has since abandoned the

issue.

The principal case relied upon by the Morley Court was

Dickson v. Bober, 130 NW2nd 526 (1964). In Dickson, the plain-

tiff had suffered injuries in a motorcycle accident which left

him mentally incapacitated. The trial court excluded the

plaintiff from the entire trial, even though it had not been

bifurcated into liability and damage portions. The jury

returned a verdict of no cause for action. The trial court

granted the plaintiff a new trial, believing in retrospect that

the exclusion of the plaintiff from trial had been error.

The Minnesota Supreme Court reversed the trial court,

and remanded the case back for entry of the jury’s verdict of

14

no cause for action. The key part of the Dickson opinion is

presented below.

‘‘The accident changed Allan Dickson from a vital, in-

telligent, healthy youth to one unable to express or sus-

tain himself, helpless and entirely dependent on others,

and wholly unable to comprehend trial proceedings.

Before deciding against his appearance in court, the trial

judge observed him and noted:

‘***His eyes seem to function on detection of an

unusual movement. Hideous and agonizing groans

and sounds emanated from plaintiff. In this trial

test, arranged so the court would have some concep-

tion of what was involved, the above is a fair

description of the depressing spectacle that in all

likelihood could have been enacted if the plaintiff's

request [to present Allan Dickson to the jury] had

been granted.’

Plaintiffs cite numerous decisions to support their claim

that Allan had an absolute constitutional right to be in

court during his trial. None is authority for the proposi-

tion that the plaintiff in a personal injury action who can

neither contribute evidence on the question of fault nor

comprehend the proceedings is entitled as a matter of

constitutional right to be present in court when the

liability issue is litigated... .’’

Dicksen, at 529-530. The Minnesota Supreme Court did

observe, in a footnote, that an ‘‘effective’’ way of handling

cases involving grievously injured plaintiffs would be to bifur-

cate them into liability and damage portions. The plaintiffs

could appear during the latter once liability was established.

They could not appear during the liability portion, as their ap-

pearance was irrelevant and would likely be prejudicial to the

defendant,

15

The Sixth Circuit adopted the rule enunciated in Morley v.

Superior Court of Arizona, supra, and Dickson v. Bober, supra. It

was fully entitled to do so, there being no contrary authority

ever published by the Supreme Court or an earlier panel of the

Sixth Circuit or any of the Circuit Courts of Appeal. Review-

ing the Sixth Circuit’s decision in the case at bar would

therefore not resolve a split of authority which was creating

substantial confusion among bench and bar.

III. THE AUTHORITIES CITED BY THE

PETITIONERS ARE INAPPLICABLE

TO THE FACTS OF THE INSTANT

LITIGATION,

It is admitted there are a number of cases in existence where

an incompetent party has been allowed to be present in the

courtroom despite his or her inability to participate mean-

ingfully in the proceedings or otherwise assist counsel in the

presentation of his or her case. However, every single one of

the eleven cases cited by the Petitioners involves either a situa-

tion where there was no bifurcation of the trial into liability

and damages portions, or a factual background totally re-

moved from the one at bar.* The plaintiffs in the cases cited by

* The cases relied upon by Petitioners were: Florida Greyhound Lines v.

Jones, 60 SW2nd 396 (Fla., 1952)(action for damages only); Purvis v.

Inter-County Telephone & Telegraph Company, 203 So.2nd 508 (Fla. App.,

1967), rehearing denied (action for damages only); Anderson v. Sears, Roebuck

& Company, 377 F. Supp. 136 (E.D., La., 1974)(simultaneous trial on

issues of liability and damages; District Court specifically noted lack of

any ‘wrongful conduct’’ on part of child, the child being ‘‘well behaved

and quiet the entire time she was in the courtroom’’); Carlisle v. County of

Nassau, 64 AD2nd 15 (1978) (liability and damages tried simultaneously;

plaintiff not mentally incapacitated in any way and able to assist counsel

during jury selection); Bartholomay v. St. Thomas Lumber Company, 148

NWe2nd 278 (N.D., 1967)(liability and damages tried simultaneously;

(footnotes continued on next page)

16

=~.

the Petitioners were either allowed or required to put on a

single case in chief, addressing liability and damages

simultaneously. Under these circumstances, the condition of

the plaintiff becomes relevant as it goes to the measure of

damages. The plaintiff's inability to either understand pro-

ceedings or to assist counsel is not important, as the plaintiff's

condition is what is at issue.°

(footnotes continued from previous page)

exclusion of children too young to understand trial proceedings up to

discretion of trial court); Bryant v. Kansas City Ratlways Company, 228

SW2nd 472 (Mo., 1921)(liability and damages tried simultaneously);

Odom v. Corn Products Refining Company, 173 Ill App 348 (1912)(liability

and damages tried simultaneously; appellate court indicates in od:ter dicta

exclusion of children, others might be proper under certain circum-

stances); Hunter v.’Szumlanski, 124 Mich App 521 (1983)(jury selection

process started without plaintiff, who would have been able to assist

counsel in picking jurors); Raper v. Bernier, 246 NC 193 (1957)(child

custody dispute; trial court held to have improperly excluded parents

from in camera examination of minor child); Chicago Great Western Railway

Company v. Beecher, 150 F.2nd 394 (8th Cir., 1945), certiorart denied, 326

U.S. 781 (1946) (liability and damage issues tried simultaneously); and

Fillippon v. Albion Vein Slate Company, 240 U.S. 76 (1919)(supplementa!

jury instruction given by trial court outside presence of parties and their

counsel; held error to give supplemental instruction except in presence of

parties or their counsel).

* In the case of Jn re Watson, 91 Cal App 3rd 455 (1979), it was held a

developmentally disabled person had the right to attend his or her own

commitment he: jag. In such circumstances, the condition of the in-

dividual is the paramount issue in the case. It would be impossible to con-

duct a meaningful hearing without the individual present for at least part

of the proceeding.

17

The case at bar was bifurcated into liability and damage

portions. The Petitioners no longer contest bifurcation was

improper.® They have cited no authority which requires a trial

court to allow an incompetent person unable to understand

proceedings or assist counsel to be physically present at trial

where that person’s condition is not relevant to the matter

under consideration. The Respondent suggests that this

Supreme Court should not create such authority. To do so

would be to drastically limit a trial court’s ability to run order-

ly proceedings. More importantly, it would make it much

more difficult for defendants to receive fair trials, as will be

shown infra.

IV. THE PARAMOUNT CONCERN OF THE

AMERICAN SYSTEM OF JUSTICE,

CORRECTLY RECOGNIZED BY THE

SIXTH CIRCUIT, IS TO GUARANTEE

ALL PARTIES A FAIR TRIAL.

In its decision in the case at bar, the Sixth Circuit, speaking

through Senior Circuit Judge Celebrezze, stated:

‘*The benchmark of our judiciary rests on the ability of

the courts to provide all parties with a fair trial.”’

Helminski v. Ayerst Laboratories, 766 F.2nd 208 (1985), at 217.

In order to have a fair trial, a party must have his or her case

heard by an unbiased finder of fact, be it a judge or jury.

® The Petitioners did strenuously argue against bifurcation in both the

District Court and the Court of Appeals. The Court of Appeals dismissed

the Petitioners’ claim of error on bifurcation by noting bifurcation was a

discretionary matter. The Petitioners had failed to establish any prej-

udice to themselves as a result of the bifurcation. Accordingly, it could

not be said the District Court abused its discretion in bifurcating the trial.

18

Justice Marshail stated in his dissent in Smith v. Phillips, 455

U.S. 269 (1982), at 224: |

‘*The right to a trial by an impartial jury lies at the very

heart of due process. Irvin v. Dowd, 366 U.S. 717,

721-722, 81 S. Ct. 1639, 1641-1642, 6 L.E.2d 751

(196i).”’

Although no one is entitled to a perfect trial, everyone is,

without exception of any sort, entitled to a fair trial.

McDonough Power Equipment Company, Inc. v. Greenwood,

U.S. _.; __ L.Ed.2nd __; 104 S. Ct. 845 (1984); Brown v.

United States, 411 U.S. 223 (1973); Bruton v. United States, 391

U.S. 123 (1968); and Lutwak v. United States, 344 U.S. 604

(1953).

In the case at bar, the District Court was faced with a con-

flict between the Respondent’s absolute right to a fair trial,

and the Petitioners’ claimed right to have an incompetent

minor who could not understand proceedings or assist counsel

present for the liability portion of the case. The District Court

made the decision that the Respondent’s right to a fair trial, to

have the case heard by an impartial jury, outweighed the right

for the incompetent minor to appear briefly during the liabili-

ty portion of the trial.’ It was the correct decision then, as was

recognized by the Sixth Circuit. It should not be reversed by

this Supreme Court, as the right of everyone to a fair trial — a

trial by unbiased jurors — would inevitably be compromised

by such action.

’ Everyone agreed the incompetent minor could be present during the

damages portion, assuming the jury made the initial finding of liability in

favor of the Petitioners. The physical and mental condition of the in-

competent minor would be relevant to the issue of damages if liability was

established.

oes

Ct ROM Lote Gina rane

ee ee eee meee

19

This Supreme Court should also understand the context

under which this issue arose. Although the incompetent minor

had been listed on the pretrial witness list, the list had been

prepared before the trial was bifurcated into liability and

damage portions. Further, the Petitioners’ trial counsel had

made no move whatsoever to produce the incompetent minor,

and had indicated he was going to show a videotape (com-

monly called a ‘‘day in the life of’’ presentation) to the jury.

It would be fair to say the Petitioners’ case in chief on

liability did not go well. Their expert witnesses on causation,

Mr. Laird and Dr. Thoman, were shown during cross-

examination to have either egregious memories or to have

simply lied during their direct examination. See, generally,

R:138-201, 398-415; JA:179-241, 257-274. Neither man

was able to point to any hard evidence linking Fluothane with

autism or any birth defect. The other two experts called by the

Petitioners did not have the same credibility problem, but

their testimony did not establish a causal relationship between

exposure to Fluothane and autism. For example, Dr. Corbett

had performed a study of birth defects suffered by the children

of nurse anesthetists, but was unable to express an opinion as

to the relationship between exposure to Fluothane and

autism. (R:513; JA:292) Dr. Redding testified the incompe-

tent minor was autistic — but he had no idea what caused the

autism. (R:520-523; JA:297-299)

After their liability case had collapsed, the Petitioners sud-

denly discovered their incompetent minor had an absolute

right to be present at trial. Since it was and is undisputed the

incompetent minor could not give testimony or otherw ~e par-

ticipate in the proceedings because of his inability to com-

municate and emotional maturity level (i.e., that of a two-

year old child), the Petitioners were planning to do nothing

less than introduce him as an exhibit.

20

The Petitioners never explained to the District Court why

the presence or brief appearance of the incompetent minor

was relevant to the issue of liability. They did not explain the

minor’s relevancy to the Sixth Circuit. They do not explain

his relevance to this Supreme Court. The Respondent sug-

gests the reason the Petitioners do not address relevancy

because there is no relevancy. The Petitioners sought to pro-

duce the incompetent minor for one reason and one reason

only: to salvage their liability case by appealing to the sym-

pathies of the jury. Given the undisputed condition of the in-

competent minor, there is littke doubt sympathies would have

been aroused. To avoid this, and to make sure the case was

considered by a panel of impartial jurors, the District Court

took the only rational course of action open to it: the exclusion

of the incompetent minor until such time as the liability issue

was decided. By so doing, the District Court obeyed the dic-

tates of this Supreme Court, as established in such cases as

McDonough Power Equipment Company v. Greenwood, Irvin v.

Dowd, and the other cases cited supra. No good purpose would

be served by using the resources of this Supreme Court to

review that decision — there was no error, and the principle of

a fair trial by impartial jurors is too important to be re-

examined through the highly questionable circumstances sur-

rounding the attempt to bring the incompetent minor before

the jury.

V. THE SIXTH CIRCUIT DID NOT ERR BY

ALLOWING PERSONS UNABLE TO UN-

DERSTAND PROCEEDINGS OR TO

ASSIST COUNSEL TO BE EXCLUDED

FROM THE LIABILITY PORTION OF A

BIFURCATED PRODUCTS LIABILITY

TRIAL.

The Petitioners maintain the Sixth Circuit erred by creating

two classes of litigants: the physically handicapped and the

el in A tlt a es eA AD CANE is Te CRAIN cli are

21

mentally handicapped. According to the Petitioners, the

holding of the Sixth Circuit that mentally handicapped indi-

viduals can be excluded from certain phases of court proceed-

ings (specifically, the liability portion of a bifurcated products

case) violates the due process and equal protection provisions

of the United States Constitution. In the Petitioners’ view,

both the physically and mentally handicapped should be

treated exactly alike.

This Supreme Court has never held that all individuals

must be treated alike. The mere showing that different per-

sons are treated differently does not show a denial of due pro-

cess and equal protection. See, generally, Griffin v. County

School Board, 377 U.S. 218 (1964). Mere classification does not

deprieve a group of equal protection. Carrington v. Rash, 380

U.S. 89 (1965). The key is whether any classifications repre-

sent invidious and arbitrary discrimination. Loving v. Virginia,

388 U.S. 1 (1967). Classifications must have a relation to the

purpose for which they are made; theoretical inconsistencies

are of little importance. Railway Express Agency, Inc. v. New

York, 336 U.S. 106 (1949).

In the case at bar, the Sixth Circuit set up a classification

based on one’s ability to participate in a courtroom proceeding

and assist counsel. Physically handicapped individuals can

almost without exception assist counsei in the presentation of

a case. Their appearance may create sympathy, but to exclude

physically handicapped individuals would be even more prej-

udicial — they could not assist counsel in the presentation of

the case. The paramount concern remains insuring a fair trial.

The Sixth Circuit made the determination that the negative

effects of excluding the physically handicapped from trial and

thus preventing them from assisting counsel were more severe

than whatever prejudice might be introduced as a result of

their appearance. It was and is a rational approach to a difficult

problem where there is no completely satisfactory solution.

22

While the physically handicapped can and generally do assist

counsel and participate in courtroom proceedings, the men-

tally handicapped, such as the incompetent minor in the case

at bar, do not. This statement does not indicate prejudice on

the part of the writer, but is simple recognition of a fact of life.

Indeed, the handicap suffered by a mentally handicapped per-

son is basically the inability to communicate and understand

one’s surroundings. The Sixth Circuit correctly recognized

that the problem of jury prejudice and sympathy could be

overcome by excluding the mentally handicapped from those

limited classes of cases where the condition of the mentally han-

dicapped individual is not an issue, such as the liability portion

of the trial in the instant litigation. No prejudice would accrue

to the mentally handicapped individual, due to the individual’s

inability to assist counsel or to otherwise participate in the pro-

ceedings. In other words, there was a rational basis for the

classification, and the classification was directly related to a

legitimate end: the minimization of the possibility of jury pre-

judice and the promotion of a trial by impartial jurors.

The limited nature of the Sixth Circuit’s decision must be

emphasized. The mentally handicapped, those unable to

assist counsel and to understand and participate in proceed-

ings, can be excluded only from those proceedings where their

condition is not an issue. The typical example would be a pro-

ducts liability case, bifurcated into liability and damage por-

tions. The mentally handicapped could, if the trial court

believed it appropriate, be excluded from the former but not

the latter. In a nonbifurcated trial, or where liability was

admitted, the mentally handicapped could not be excluded,

although their time in the courtroom could be limited if neces-

sary for courtroom decorum and the like. Overall, the rule

enunciated in the Sixth Circuit will have very limited applica-

tion, assuming it was universally followed.

23

VI. THE SIXTH CIRCUIT DID NOT ERR

IN ALLOWING THE DECISION OF

THE DISTRICT COURT TO EX-

CLUDE THE INCOMPETENT MINOR

WITHOUT AN IN-COURT EXAMINA-

TION OF THE MINOR TO STAND.

The Sixth Circuit held that, while a District Court could ex-

clude a mentally handicapped individual unable to assist

counsel or to otherwise participate in proceedings from trial, it

could do so only after an examination of the handicapped indi-

vidual. The District Court in the case at bar did not hold an

examination of the incompetent minor, but excluded him on

the basis of representations and testimony made by his coun-

sel, mother, brother and various expert witnesses. For the

record, the testimony established that the incompetent minor

was 16 years old, was approximately six feet tall, weighed 90

pounds, was not toilet trained, had the emotional maturity of

a two-year old child, did not communicate with anyone, could

not be taken in public due to his frequent loud outbursts, and

basically required 24-hour a day care and supervision. It was

uncontested that the incompetent minor was totally unable to

assist counsel or otherwise participate in the proceedings,

although he was represented in the courtroom by his counsel

and his Next Friends, his mother and father.

The Sixth Circuit concluded the District C. urt should have

held an examination on the incompetent minor before exclud-

ing him during the liability portion of the trial. However, it

was not reversible error since there was absolutely no indica-

tion the presence of the incompetent minor in court during the

liability portion of the trial could have assisted the Petitioners

in the presentation of their case. The Sixth Circuit also noted

the jury was fully advised of the parameters of the incompe-

tent minor’s condition.

24

It is well settled that a litigant is entitled to a fair trial, but

not a perfect one. McDonough Power Equipment, Inc. v. Green-

wood, supra; Brown v. United States, supra; Bruton v. United States,

supra; Lutwak v. United States; see also Andes v. Lauer, 80 Ill App

3rd 411; 35 Ill Dec 701; 399 NE2nd 990 (1980); Indiana ©

Michigan Electric Company v. Miller, 19 Mich App 16 (1969),

leave to appeal denied, 383 Mich 781 (1970); and Appleton v. Mat-

thews, 16 Ohio Misc 130; 45 Ohio Opin 2nd 90; 238 NE2nd

846 (1968). The general rule is that errors which do not affect

the essential fairness of the trial are not to be used as a basis for

reversal. McDonough Power Equipment, Inc. v. Greenwood, supra;

see also Kotteakos v. United States, 328 U.S. 750 (1946) and

Federal Rule of Civil Procedure 61.

The Sixth Circuit determined the incompetent minor in the

case at bar did not have an unlimited, absolute right to be

present in the courtroom during the liability portion of the

trial. Absent such a holding, the District Court’s decision to

exclude the incompetent minor without a direct examination

cannot legitimately be considered violation of a constitutional

right. Accordingly, the Sixth Circuit was correct in finding no

reversible error, particularly in light of the other circum-

stances of the case (i.e., the representation provided the

incompetent minor by his counsel and Next Friends, his

inability to assist counsel or otherwise participate in the pro-

ceedings, et cetera).

25

CONCLUSION AND REQUEST FOR RELIEF

The Respondent Ayerst Laboratories respectfully requests

this Honorable Supreme Court of the United States to enter

an Order denying the Petitioners’ Petition for a Writ of Cer-

tiorari in the above-entitled cause of action for the reasons

presented in this Brief.

Respectfully submitted,

KOHL, SecREsT, WARDLE, LYNCH,

CLARK and HAMPTON

BY:

Michael L. Updike

Attorneys for Respondent Ayerst

Laboratories

Post Office Box 3040

30903 Northwestern Highway

Farmington Hills, Michigan 48018-8040

(313) 851-9500

DATED: October 10, 1985