Full opinion text
INDEX Page Nos. I. Introduction ......................1215-1221 II. Asserted Errors — Miscellaneous A1-A13 .......................... 1221-1228 III. Asserted Errors Involving Exculsion of Evidence at Trial B1-B15 ...... 1228-1240 IV. Asserted Errors Regarding Discovery C1-C6 ....................... 1240-1242 V. Asserted Errors Involving Evidence Admitted at Trial D1-D4 ......... 1242-1243 VI. Asserted Error in Entering Judgment on the Verdict E ........... 1243-1244 VII. Asserted Error Concerning Jury Instruction on Proximate Cause F .. 1244-1245 VIII. Asserted Error Concerning Jury Requested Jury Instruction Regarding FDA G ............... 1245 IX. Asserted Errors by Minority Members of Lead Counsel Committee H1-H3 .......................... 1245-1246 X. Asserted Errors Raised Only in Plaintiffs Memorandum 11-17 ..... 1246-1249 XI. Conclusion .......................1249 XII. Appendix A: Order No. 1066, Nov. 16, 1983 XIII. Appendix B: Standard Juror Questionnaire XIV. Appendix C: Bendectin Supplemental Juror Questionnaire XV. Appendix D: Jury Instructions XVI. Appendix E: Order No. 2862, Peb. 19, 1985 XVII. Appendix F: In Re Bendectin Products Liability Litigation, 97 F.R.D. 481 I. INTRODUCTION CARL B. RUBIN, Chief Judge. This matter is before the Court on the Motions of plaintiff for Judgment Non Obstante Veredicto and for a New Trial, upon the responses thereto by defendant and upon a hearing held in open court on August 2, 1985. There is an inherent problem of communication between trial courts and appellate courts. The trial judge's reasons for proceeding as he did are explained to a reviewing court in a secondhand fashion. It is only from the perceptions of the litigating parties that his analysis and reasoning may be determined. All too often, those perceptions are colored by adversarial positions and may or may not reflect accurate reasons for the action taken. It will be the purpose of this Order to deal not only with each issue raised by plaintiffs but also to indicate the thought process and the authority relied upon for the action taken. The “Bendectin Litigation” in this Court began with an assignment of 47 cases by the Panel on Multi-District Litigation (Panel) in February of 1982. Eighteen months were allotted by the Court for pre-trial discovery. Five attorneys were selected as Lead Counsel in pre-trial order # 1 dated May 5, 1982. (Doc. no. 9A). Between May of 1982, and March of 1985, 582 additional cases were referred by the Panel and 557 cases were filed in the Southern District of Ohio. A. In an effort to try all common issues of liability, the Court, on November 16, 1983, issued an Order (doc. no. 1066) (See Appendix A) consolidating all cases filed in the Southern District of Ohio, those filed in the Northern District of Ohio and referred by the Panel, and those referred by the Panel whose attorneys wished to be involved. No litigant who had not individually invoked the jurisdiction of this Court was required to participate in the common issues trial unless such litigant through his attorney specifically “opted in” (doc. no. 2277). Such “opt ins” were barred after March 1, 1985 (doc. no. 2866). All cases filed after that date in the Southern District of Ohio or referred by the Panel thereafter were excluded. At the cut-off date of March 1, 1985, 557 cases originating in the Southern District of Ohio and 261 cases which had opted in were thereafter subject to the decision of the jury. Trial was originally scheduled to begin in June of 1984. On June 11,1984, a jury was impaneled. Before actual trial began, an offer of settlement in the total sum of $120 million for all Bendectin cases, both current and future, was made by Defendant Merrell-Dow Pharmaceuticals, Inc. (Merrell). The pendency of that offer caused the Court to conclude that trial should not begin and the impaneled jury was thereupon dismissed. The conditions of such offer required a certification of a settlement class. That certification was reviewed by the United States Court of Appeals for the Sixth Circuit and deemed to be beyond the power of this Court. See In re: Bendectin Products Liability Litigation, 749 F.2d 300 (6th Cir.1984). This Court thereupon directed that trial begin on February 4,1985, with a new jury. The large number of cases involved required some unusual procedures. To assist counsel in their jury selection, the standard jury questionnaire form (Appendix B) was supplemented by an additional questionnaire (Appendix C) designed jointly by all counsel. The additional questionnaire was mailed to prospective jurors and returned before the beginning of trial. Based upon an examination of that second questionnaire and by agreement of counsel, some prospective jurors were excused. Those excused were persons employed by Merrell or its associated companies, or persons who were parents of children with birth defects. Voir dire was conducted by the Court in accordance with the procedure outlined in Federal Rule of Civil Procedure 47(a) and supplemented with questions submitted by counsel. At the conclusion of the voir dire in open court, counsel and the Court retired to Chambers where seven challenges per side were exercised (T. 52-53). By agreement, six jurors were selected together with six alternates. It should be noted that an offer had been made by the Court for selection of a jury with special qualifications. As early as May of 1984, it was obvious to the parties that in the first portion of the trial there would be technical and complex testimony by experts on the issue of causation. The Court discussed with counsel selecting a jury composed of persons knowledgeable in the field or a jury of those persons having the most formal education available in the jury panel. Two terms were used for descriptive purposes. The jury of persons knowledgeable in the field was referred to as a “blue, blue ribbon jury” and those who had the greatest amount of formal education were referred to as a “blue ribbon jury.” Neither of these concepts is recognized in the Federal Rules of Civil Procedure. Only by agreement of all parties could either have been used. The following excerpts from a conference held May 11, 1984 may be instructive. At page 9 of the transcript, the following appears: THE COURT: If this is going to be a trial question that will rely on expert testimony, would you give any consideration to the the phrase Mrs. Ringenbach (“Law Clerk”) coined which I think is very discriptive, the “Blue, Blue Ribbon Jury.” A Blue, Blue Ribbon Jury would be composed of people knowledgeable in the field that you could agree upon. I don’t care, 15, 20 and then we could use the device of a struck jury where you strike off those that you considered unacceptable. Now, this has the advantage of people who would be knowledgeable in the field. It has a very distinct disadvantage that they may well have already made up their minds. I pass this on as a suggestion. (Emphasis added) Is there any conceivable interest in it? DR. WOODSIDE: (Counsel for Defendant) We would be interested. MR. CHESLEY: (Counsel for Plaintiffs) Your Honor, we would not be interested. On page 12 of the transcript of such conference, the following appears: THE COURT: If you will not accept a blue, blue ribbon jury, will you accept a blue ribbon jury? MR. CHESLEY: No, Judge.... I want to explain our position. THE COURT: I don’t care what your position is. MR. CHESLEY: I don’t want to sit here and look like we are adamant. THE COURT: You are not required. This is something that is separate and apart from the rules of the United States District Court and of this local court as well. If you say ‘I don’t like the idea,’ period. The jury impaneled in February 1985, consisted of five women and one man. Three substitutions were ultimately made. Juror no. 3 became ill early on and was replaced. Her replacement, Mr. William O’Shaunnessy, discovered several weeks into trial that he was acquainted with the mother of defendant’s counsel. When this matter was called to the Court’s attention, Mr. O’Schaunnessy was excused. (T. 2591-2609; 2785-2786, February 27, 1985). Subsequently, Mr. O’Shaunnessy’s replacement, a Mr. Guth, likewise became ill and he was replaced by Joyce Lee Beck. The jury that deliberated consisted of five women and one man. The jurors averaged 44.75 years in age. Their education ranged from a failure to attend high school by one to the possession of a graduate degree by another. Specifically, one juror had no high school, one had quit high school at the end of the 11th grade, one had graduated from high school, one had graduated from high school and taken technical training as a practical nurse, one had a Bachelor of Arts Degree and one both a Bachelor’s and a Master’s Degree. The jurors were the parents of 13 children. Two of the jurors had none, two had one each, one had three and another had eight. It is a supportable, although irrelevant, hypothesis that a jury of five women and one man called upon to deal with a product involved with pregnancy would be at least sympathetic to problems occasioned by such pregnancy. The presentation of evidence required a total of 21 days. During that time, 10 expert witnesses were presented on behalf of plaintiffs, eight on direct and two on rebuttal and nine expert witnesses were presented on behalf of defendant. Plaintiffs required 41 hours 15 minutes to present their case both by direct, cross and rebuttal, while defendant required 31 hours, 30 minutes to present its case on direct and on cross. Final argument and instruction consumed an additional day. The jury deliberated less than one day. There is an understandable tendency among trial lawyers faced with the obligation of overturning an unfavorable verdict to create an impression that somehow they did not receive a fair trial. The Court does not state this in a critical fashion. Trial lawyers as a group are intense, energetic and dedicated lawyers. As advocates, they would regard any unfavorable ruling in the same fashion as any batter who is called out at first. For purposes only of placing this trial in an appropriate context, the Court sets forth herein its underlying philosophy of trial procedures. Under our system, there is a burden of going foreward imposed upon a plaintiff. If he does not prevail by a preponderance of the evidence, he must lose. Evidence is not subject to precise calibration. Often it appears to be in equipoise. To carry the baseball analogy further, the Court favors, where applicable, an unwritten rule of baseball umpiring. The rule may be simply stated as follows: “In a tie, favor the runner.” In the same fashion, on close questions, the offense, i.e., the plaintiff, should be given the benefit of the doubt. The principal of “tie, favor the runner” was employed in a five separate disputes of some magnitude, all of which resulted in decisions favorable to the plaintiffs. First, juror William O’Shaunnessy, referred to above, coaches swimming teams. On one occasion, after several weeks of trial, the mother of Dr. Frank Woodside, defense counsel, appeared in the courtroom as a spectator. Mrs. Woodside is likewise a swimmer. Mr. O’Shaunnessy had not previously connected her with Dr. Wood-side nor was she more than an acquaintance of his. He simply recognized her and made that fact known to the Courtroom Deputy. It is debatable whether or not that mere acquaintance should be grounds for removal. A remote possibility of prejudice to the plaintiffs, did exist and rather than conduct an inquiry, it was the Court’s decision to excuse him. The advantage of this determination, if any, went to the plaintiffs. Second, among the witnesses presented by the plaintiffs on videotape was Dr. Johannes Theirsch. Dr. Theirsch spoke with a heavy German accent. As a result, his taped testimony lacked the clarity of a live witness. In order to equalize the situation and to assist the jury in following Dr. Theirsch’s testimony, the Court sua sponte directed counsel to distribute to the jurors a transcript of the deposition. There is a danger in this technique because alone of all the expert witnesses, Dr. Theirsch’s testimony was thus given special attention. The advantage in this decision went to the plaintiffs. Third, as a result of the complexity of the pre-trial proceedings and the thousands of documents involved, it developed late in the trial that plaintiffs had unwittingly agreed to a stipulation waiving the hearsay objection to certain documents which the defendant proposed to use. The colloquy concerning this situation began on page 1928 of the transcript. Excerpts of it are instructive. Dr. WOODSIDE: Your Honor, I want to read to you from the Court’s Order which was agreed upon by counsel. ‘Under such circumstances, the Court ruled that hearsay objections hereto are overruled with respect to the studies themselves.’ What happened was, in agreement for us not to go take depositions all around the world, they agreed to waive the hearsay objections and the Court so ruled. THE COURT: I’ll hold you to it. MR. EATON: (Counsel for Plaintiff) We agreed with respect to their authenticity. THE COURT: No, you agreed to more that that. You agreed to waive a hearsay objection. (T. 1935) MR. EATON: Well, Your Honor, if that is the case, I would respectfully request the permission to withdraw that stipulation because I think it’s going to be tremendously unfair to the plaintiffs. (Emphasis added) (T. 1943) MR. BLEAKLEY: I have taken these things on balance and in view of the clear mandate of Rule 803.18 (Rule 803, exception 18) that even if we had stipulated, we would request relief from it. The Court absolutely has discretion to do it under the Northwest Mutual case we cited to the Court. That would be the plaintiffs’ position. THE COURT: Frankly, Mr. Bleakley, Mr. Eaton, that last sentence is the most significant one’ I have heard. That’s what I have to look at. If in fact, the plaintiffs are damaged by this, that is a different matter. (Emphasis added) (T. 1955) THE COURT: At this precise time, I am not going to permit this to be displayed to the jury. I will reserve the question of admissibility until a later date but at this moment, I will ask you to proceed without the jury having them in front of them. The documents in question despite the waiver of the hearsay objection were never presented to the jury and were never admitted into evidence in the case. While there is no question that the plaintiffs, perhaps unintentionally, had agreed to admissibility of some potentially damaging exhibits, the Court relieved them of their error. The Court also notes in passing-certain colloquy between plaintiffs’ counsel and the Court as it may bear upon the advisability of a formally educated jury. The following appears at page 1940 of the transcript. MR. BLEAKLEY: (Counsel for Plaintiffs) For example, Dr. Smithells received a letter from Dr. Rothman who is a colleague of Dr. McMahon at the Harvard Epidemiology Department very seriously criticizing not only the conclusions that Dr. Smithells had drawn but suggesting the fact his study did not prove the safety of Bendectin. To hand a jury that is untrained in analyzing this— THE COURT: One comment on this, Mr. Bleakley, and I won’t interrupt any more. I made an offer to counsel in this instance to select a jury with the maximum amount of formal education available. You know who turned it down? It was plaintiffs’ counsel not defendant. So don’t argue to me now about the fact that we have a jury that does not have a great deal of formal education. You may proceed. MR. BLEAKLEY: Your Honor, that was simply not my point. THE COURT: Yeah, but it’s my point. If you are concerned over the fact that we are giving technical information, I agree with you. But I point out that an effort was made to obtain a jury with the maximum amount of formal education and that offer was declined by plaintiffs’ counsel. (Emphasis added) Fourth, in each instance when an expert witness was presented, the Court read selected qualifications submitted by counsel and advised the jury that the witness in question qualified as an expert and could give opinions and could give reasons for the opinions. This assertion, however, was qualified by jury instruction no. 5006 (See Appendix D) which indicated the manner in which expert testimony was to be received. On only one instance did an opposing party object to the expertise of a given witness. Dr. James Goddard was called by the defendant on February 26. Plaintiffs questioned his expertise and were accorded the opportunity to conduct voir dire in the presence of the jury before Dr. Goddard testified. (T. 2567-72). In that instance, the Court did not instruct the jury that Dr. Goddard qualified as an expert and instead made the following statement: “The plaintiffs in this case question whether or not Dr. Goddard qualifies as an expert. Accordingly, I will permit a representative of plaintiffs counsel to interrogate this witness, and the ultimate question of whether or not he qualifies as an expert' is up to you.” (T. 2566). Alone, of all the experts who testified, Dr. Goddard’s qualifications were thus questioned in front of the jury. It is obviously not possible to quantify the advantage to a plaintiff who questions a witness’s expertise. Since Dr. Goddard alone was subjected to this inquiry, it would seem that some advantage went to the plaintiffs. Fifth, the Court ruled favorably to the plaintiffs in the matter of approval by the Food and Drug Administration (FDA) of the product Bendectin. (See Appendix E Order 2862 Feb. 19, 1985) A persuasive argument can be made that the action of the FDA bears upon the question of causation. It can be argued that the actions of a public agency are admissible in accordance with exception 8 to Federal Rule of Evidence 803. Even the traditional balancing test of probative value versus prejudicial effect would suggest a ruling against the plaintiffs’ position. The action of the FDA is probative on the question of causation since that agency is charged with the obligation of insuring that drugs sold on the market are subjected to rigorous testing. A determination of drug safety has no “prejudicial” effect other than the effect of any unfavorable evidence. The Court determined, however, that the FDA’s approval was no better than the tests it relied upon at the time the approval was issued sometime in the early 1960’s. In the sense that the imprimatur of the federal government which was indicative only of the state of the art at that time could, at least, be confusing, the Court concluded that the evidence should not be admitted. The plaintiffs were saved, thereby, from the additional task of seeking to demonstrate that the tests the FDA relied upon were inadequate. On the general issue of whether or not the plaintiffs were permitted to present their case fully and adequately, an examination of the exhibits submitted to the jury is pertinent. Plaintiffs offered 142 exhibits. Of these, 95 were admitted into evidence for an “admissibility” percentage of 67%. The defendant offered 86 exhibits of which 50 were admitted for an “admissibility”- percentage of 58%. In terms of exhibits available for jury examination, almost twice as many plaintiffs’ exhibits were admitted as defendant’s. The foregoing is significant only as it bears upon the question of a fair trial before an impartial jury. In all of the foregoing significant decisions, at least, the principal of “tie, favor the runner” benefit-fed the plaintiffs. It is in the context of a “fair trial” that the Court now turns to the specific assertions of error made by plaintiffs. ASSERTED ERROR #A 1 “The Court erred by improperly bifurcating issues of liability and causation under the circumstances of this case so as to create a sterile or laboratory environment in which causation was parted from the reality of injury.” Rule 42(b) of the Federal Rules of Civil Procedure states in part as follows: “The court, in furtherance of convenience ... may order a separate trial of any claim ...” The Bendectin Litigation alone had the capability of substantially immobilizing the entire Federal Judiciary. There have been only four cases involving Bendectin which have been individually tried. They required an average of 38 trial days. It takes little mathematical calculation to determine that if each of over 1100 cases were tried separately for 38 trial days a substantial number of the District Judges in this country could do nothing for a year but try Bendectin cases. The United States Court of Appeals for the Sixth Circuit has had occasion to consider this problem previously. Decisions by trial judges bifurcating under Rule 42 have been approved in Helminski v. Ayerst Laboratories, 766 F.2d 208 (1985); In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982) cert. denied sub nom Brian Electric Company v. Kicer, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983); Koster v. 7-Up Co., 595 F.2d 347 (6th Cir. 1978); Palmer v. National Cash Register, 503 F.2d 275 (6th Cir.1974); Crummett v. Corbin, 475 F.2d 816 (6th Cir.1973); Moos v. Associated Transport Inc., 344 F.2d 23 (6th Cir.1965). The only admonition that may be found in any of the foregoing cases is dicta. In In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), the Court stated: “There is a danger that bifurcation may deprive plaintiffs of their legitimate right to place before the jury the circumstances and atmosphere of the entire cause of action which they have brought into the Court, replacing it with sterile or laboratory atmosphere in which causation is parted from the reality of injury. In a litigation of lesser complexity such consideration may well have prompted the trial judge to reject such a procedure ... Further the proofs themselves, although limited, were nevertheless fully adequate to apprise the jury of the general circumstances of the tragedy and the environment in which the fire arose____” M at 217 (emphasis added). The experiences of time consumption that have already occurred in individual Bendectin cases lead inescapably to the conclusion that it is not just judicial economy that is involved. Under any other procedure some plaintiffs might wait years or even decades for their cases to be heard. In In re Beverly Hills Fire Litigation, the United States Court of Appeals further observed: “The conclusion of the Trial Judge has support on the record. The trial on causation alone took 32 days.” Id. at 216. In the matter at hand the trial on causation alone took 22 days. In an effort to avoid the “sterile or laboratory atmosphere” the Court made the following observations to the jury at the outset of trial: “The evidence in this case will indicate that this is a consolidated case; that is, the plaintiffs represent some hundreds of other plaintiffs.” (T. 34). “Let me suggest to you that what you are about to do may be one of the most important things you will ever do in your entire life. This is a significant case. It involves a lot of people. It involves not only the plaintiffs, who are individuals; it involves people, scientists, people who have done experiments, people who are employees of the defendant company. The totality of this case involves people and while you will hear technical evidence I do point out to you that at all times you should keep in mind that on both sides there are people involved.” (T. 59-60). (Emphasis added). A causation trial by definition must involve scientific and technical evidence. A Court can only comply with the admonition regarding sterile or laboratory atmosphere by reminding the jury that such evidence must be considered as it relates to people. ASSERTED ERROR # A 2 “The Court erred by entering judgment on the jury verdict which was merely advisory in character, based on hypothetical facts and was not the product of a true case or controversy the net effect of which was a legal nullity." A simple issue was presented to the jury. (See Appendix D 5050). “Does Bendectin cause birth defects?” It is difficult to understand why this is not the appropriate issue. It was severed pursuant to Rule 42(b). If plaintiffs cannot establish that Bendectin was the cause of birth defects, it matters not what else they might establish. They have failed to prove the essential element of their case. Were it otherwise the issue of causation could never be severed and the entire purpose of Rule 42(b) would be thwarted. See Beeck v. Aquaslide, ‘N’ Dive Corp., 562 F.2d 537 (8th Cir.1977); In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982). ASSERTED ERROR # A 3 “The Court erred in excluding crippled minor Plaintiffs from the courtroom in which the determination of ‘causation’ was determined in the abstract separate, in the part of [sic] reality from injury.” This theme permeates plaintiffs’ argument. Plaintiffs assert that the presence of crippled children in the courtroom would somehow enable the jury to render a fair and impartial verdict while their absence would not. It was freely admitted by almost every expert witness that birth defects do occur. There was statistical information, although somewhat in controversy, as to percentage, (see infra p. 1226) that out of a given number of live births there will be some birth defects. An accumulation of one or ten or fifty children in the courtroom, each with a birth defect, cannot without more demonstrate that such birth defects were caused by Bendectin. Rule 102 of the Federal Rules of Evidence sets forth the guiding principle of any trial: “These rules shall be construed to secure fairness in administration ... to the end that the truth may be ascertained and proceedings justly determined.” While the presence of birth defect plaintiffs should not be evidence, the rationale of Rule 403 is significant. That rule provides in part: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury____” It is. beyond argument that in a trial of causation alone, the appearance of children with birth defects might confuse the issue or might ■ mislead the jury. A trial court is always faced with the same inherent problem. Trial attorneys do not seek an impartial jury. They seek a sympathetic jury. While it may be assumed that under the adversarial system the two efforts will cancel each other out and that, in fact, a fair and impartial jury will be impaneled, attempts to engender sympathy will always continue. Because of its complexity, as above noted, the Bendectin litigation required application of Rule 42(b). Liability and damages have always been separate concepts and neither should be used to buttress the other. To use a reductio ad absurdum analogy, let it be assumed that identical medicine was ingested by a month-old infant and by a serial killer of 100 human beings. In each instance, the ingestion caused immediate, irreversible and total paralysis. Could it be asserted that in the face of liability, the killer, who is “evil” incarnate, should be denied damages because he is a bad person? Could it be asserted in the absence of liability, that the infant, who is the personification of innocence and “goodness,” is entitled thereby to any damages? Although the decision to bifurcate the proceedings is separate from the decision to exclude the children with visible birth defects, the two are closely related. A decision to exclude plaintiffs because of a prejudicial effect on the jury necessitates bifurcation, because although these plaintiffs may be excluded from the liability phase, exclusion from the damages phase is inappropriate. Helminski v. Ayerst Labratories, 766 F.2d 208 (6th Cir.1985). In the present case, the initial issue confronted by the jury involved “liability” without respect to person. Plaintiffs have always asserted that the victims of Bendectin were children, whose birth defects were caused, not by their parents, but by a corporate third party, the Merrell-Dow Pharmaceutical, Inc. These children are plaintiffs in this matter. Generally, a plaintiff is present in the courtroom to testify and to confer with and assist his attorney in the presentation of his case. The United States Constitution, however, does not grant a civil litigant the absolute right to be present personally during the trial of his case. Helminski, 766 F.2d at 213. Even in criminal cases, the accused’s right to be present is not absolute. The Sixth Circuit in Helminski, set out a two prong analysis to test whether the exclusion of a litigant comports with due process. First, the court must determine if the party’s mere presence in the courtroom would be prejudicial, i.e. would it prevent the jury from deciding the case solely on the evidence before it. See McDonaugh Power Equipment, Inc., v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1982). Second, if the court determines there would be prejudice, it must consider whether the party can understand the proceeding and assist counsel in any meaningful way. If the court concludes that the party can understand the proceeding and aid counsel, due process mandates that the party be permitted to attend the trial regardless of the prejudicial impact. Helminski, 766 F.2d at 217-18. The analysis does not end at this point, however. If on review the appeals court determines that exclusion was improper under the first prong, but that, indeed, the party could not comprehend the proceedings or aid counsel in any meaningful way, the exclusion does not constitute reversible error. Id. at 218, 95 S.Ct. at 2532. It is clear that the presence at trial during the liability phase of children suffering from severe visible birth defects is inherently prejudicial. There is no more protected and beloved member of human society than a helpless newborn infant. Conversely, it has become fashionable to castigate and punish that depersonalized segment of society identified variously as “big business,” “soulless corporations,” or “industrial complex.” If the battle is emotional alone, between newborn infants and big business, there can be but one winner. Emotional battles, however, should not be staged in the federal courtroom. We deal in liability imposed not by emotion but by law. It is customary, in fact, to instruct juries that “[a]ll persons including corporations are entitled to a fair trial. The law is no respecter of persons.” (See Appendix D 5010.31) It is equally clear that the second prong of the Helminski test is met. In the matter at hand, there was no testimony by children and, indeed, none was either pertinent or contemplated. In a trial of causation, the testimony, by definition, must be limited to that question. Plaintiffs do not assert, nor could they assert, that the children could meaningfully consult with counsel in the presentation of this phase of the case.8 During the trial, various of the plaintiffs’ parents appeared in the courtroom on different days. Even those adults could not assist the presentation of the causation issue. The witnesses called by the plaintiff were well-qualified, outstanding experts in their fields. The suggestions and views of plaintiffs’ parents could hardly bear upon their proposed testimony. If that be true for adults, it would verge on the frivolous to assert anything different for the children. Remarkably, plaintiffs’ counsel have never claimed that the presence of even one child was necessary to assist them in their dealings with the expert witnesses. Clearly, plaintiffs’ counsel wanted deformed children in the courtroom to foster sympathy as a counterweight to the complex and frequently technical testimony of the experts. Although juror sympathy alone is insufficient to establish juror prejudice, as noted above, the mere presence of severely handicapped young children could “render the jury unable to arrive at an unbiased judgment concerning liability.” Helminski, 766 F.2d at 217. Without question, the deformities of a specific child are highly probative in a damages trial. See, e.g., Morley v. Superior Court of Arizona, 131 Ariz. 85, 88, 638 P.2d 1331, 1334 (1981) (cited in 766 F.2d at 217.) Once liability is established, the deformed child would be a critical, if not the ultimate, witness in order to award adequate damages. A fair trial contemplates fairness to both sides. In accordance with Rule 403 a trial judge must always balance probative value against prejudicial effect, confusion of the issue or misleading the jury. The probative value of a deformed child or children in the courtroom on an issue of liability alone is nonexistent. The unfair prejudicial effect of the presence of that child is beyond calculation. ASSERTED ERROR # A 4 “The Court erred by allowing the Defendants to assert the defenses raised by the Lamm charts for the first time at trial in admitting the Lamm charts in violation of Rule 1006 of the Federal Rules of Evidence over Plaintiffs’ objections.” This matter was the subject of a bench conference when the issue was first raised. The record of that conference demonstrates that plaintiffs recitation of the facts is incorrect. Plaintiffs had, in fact, been in possession of these charts for many months. They had been seen previously by plaintiffs’ counsel at the deposition of Dr. Lamm on October 20, 1984 and at a hearing before the Court on October 31, 1984 when division of a proposed settlement by defendants to all Bendectin claimants was considered. It is a matter of record that plaintiffs’ counsel cross-examined Dr. Lamm regarding the basis of his study both at the taking of his deposition and at the October 31 hearing. Dr. Lamm’s deposition was filed in this Court on November 6, 1984. At the sidebar conference, evidence was presented to the Court that plaintiffs were advised that the charts would be used. An offer was made by the court to give plaintiffs’ counsel time to examine the charts if they were, in fact, unfamiliar with them. Plaintiffs’ counsel declined that offer (T. 2626). The asserted violation of Rule 1006 of the Federal Rules of Evidence is somewhat unclear. The charts of Dr. Lamm do summarize the contents of his study. Rule 1006 provides in part that “such writing may be presented in the form of a chart, summary, or calculation.” Plaintiffs’ resort to Rule 1006 may be based upon an assertion that the underlying facts were inaccurate. That is an area appropriate to cross-examination. As noted in Footnote 11 plaintiffs’ counsel cross-examined Dr. Lamm exhaustively and thoroughly. Even inaccuracy does not render the charts inadmissable, it only addresses their weight and sufficiency. Dr. Goddard testified on February 26 and 27, which were the 15th and the 16th days of trial. Had plaintiffs' sought to impeach such testimony, an additional five days of trial were available to them prior to submission to the jury. ASSERTED ERROR # A 5 “The Court erred by not striking Dr. Goddard’s testimony after his declaration that Plaintiffs had paid for or sponsored the Lamm charts. His statement incurably prejudiced the Plaintiffs and the net effect was not obviated by the curative instruction.” This assigned error is difficult to understand. Dr. Goddard was permitted to testify as an expert. He based his testimony upon information usually relied upon by experts. He was cross-examined with the disclosure that plaintiffs had paid for the Lamm charts. This is a matter of weight and sufficiency and customarily for a jury to consider. The jury was given a standard jury instruction (Appendix C # 5006) that they were not required to believe an expert witness simply because he was an expert. The expertise of Dr. Goddard was questioned by plaintiffs in the presence of the jury (See supra 1219-1220). The basic question of his reliability as a witness was properly left to them. ASSERTED ERROR # A 6 “The Court erred by allowing defendant’s counsel to be addressed as 1Doctor’ and allowing Defendant’s counsel to relate his medical school experience during argument.” Attorney Frank Woodside is in fact a medical doctor. He earned that degree from the University of Cincinnati. He is thereby entitled to be addressed in that fashion. Final argument has traditionally been just that — argument—an opportunity for counsel to persuade, cajole or convince jurors. Plaintiffs’ counsel were not limited in any anecdotes that they told. Plaintiffs’ counsel were not limited as to any experience that they might bring to the Courtroom. A defense counsel, in seeking to persuade the jury, should be given the same entitlement. The Court notes in passing the numerous instances where plaintiffs’ counsel themselves referred to defense counsel as “Doctor”. (Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for a New Trial, May 13, 1985, doc. no. 3138 at 14). ASSERTED ERROR # A 7 “The Court erred in not allowing any fact testimony by Plaintiffs.” This assertion of error is merely a restatement of the objection to bifurcation. If causation can be separated pursuant to Rule 42(b) and submitted to the jury as the Court has done, then by definition such a question need not include fact testimony. The threshold issue of causation is not enhanced by fact testimony. Causation in a Bendectin case is a subject of great dispute. Outstanding experts on both sides reached different conclusions. It is difficult to understand even conceptually how any fact testimony by anyone would assist that determination. ASSERTED ERROR # 8 “The Court erred in excluding the rebuttal testimony of Dr. Garfinkel.” All parties had been aware at all times that the calling of surprise witnesses is discouraged. The testimony that Dr. Garfinkel would rebut was not unanticipated, nor was there any question about its significance in the case. It dealt with the necessity for scientific studies to have a 95% degree of statistical significance. This issue has been a part of this case since 1984. At that time, the defendant raised by Motion in Limine (doc. no. 1644 May 2, 1984) an effort to prevent that argument from being made. That motion was denied in February of 1985. (Doc. no. 2862). From February of 1985 to March of 1985, the plaintiffs had four opportunities to present testimony regarding the necessity for statistical significance. Their failure to do so is hardly a basis for suggesting that a surprise witness may be called on rebuttal without notice to defendant until the very day at which he would appear. Such testimony, under those circumstances, would be manifestly unfair. It would deny defendant an opportunity properly to cross-examine a witness who could have testified in plaintiffs’ case in chief. Each side was permitted 10 expert witnesses. (Transcript of final pretrial conference May 11, 1984 at 21-22). Plaintiffs in fact called but eight in their case in chief. ASSERTED ERROR #A 9 “The Court erred in excluding Tina Schaffer’s rebuttal testimony." The testimony of Tina Schaffer was not impeachment. Her proposed testimony would be that Dr. Peter Dignan, a defendant expert, had once told her that Bendectin could not be ruled out as a cause of birth defects because one cannot prove a negative. In fact, Dr. Dignan so testified. The following appears in the transcript at page 3156: “We cannot absolutely discard it. We cannot prove a negative.” It is likewise a matter of record that Dr. Dignan was asked on cross-examination whether he had made such a statement and he admitted doing so. (T. 3156). There can be no impeachment where a witness has agreed that he made the statement the impeaching witness would testify to. • ASSERTED ERROR # 10 “The Court erred in not allowing Plaintiffs’ counsel to test the knowledge of Defendant’s experts to see if they knew that some of the safety data on Bendectin was fraudulent.” Plaintiffs’ counsel asserted with quite some frequency that the Bunde-Bowles study was seriously flawed. It may have been. In no instance however was plaintiffs’ counsel denied an opportunity to inquire into the Bunde-Bowles study when a defendant’s expert relied upon it. Where a defendant’s expert did not rely upon that study, any effort to introduce its flaws or defects would be irrelevant and could only have been prejudicial to the defendant. Under those circumstances cross-examination was prohibited. (See, e.g., T. 2493-2501) For a complete discussion of plaintiffs’ attempts to discredit the Bunde-Bowles study, see infra pages 1229-1230. ASSERTED ERROR # A 11 “The Court erred in refusing to allow Plaintiffs’ counsel to cross-examine Defendant’s expert witnesses using learned treatises to the extent permitted under Rule 803(18) F.R.K” The Court’s ability to respond to this asserted error is severely handicapped by counsel’s failure to make reference to the trial transcript. It is difficult if not impossible to search over 3700 pages of transcript in an effort to supply instances of alleged error. The Court is aware of two instances. During the testimony of Dr. Bryan Hall, the Court ruled that plaintiffs could cross-examine on plaintiffs’ Exhibit no. 3300 regarding the mutagenicity of Decapryn, if the witness admitted that it was authoritative or if it was authenticated as authoritative by a prior witness. Neither condition was met, so cross-examination was not allowed. (T. 2892-98). When Dr. Lewis Holmes admitted to having reviewed the article, cross-examination was permitted. (T. 3086-89). Plaintiffs counsel were given full opportunity for cross-examination. Seventeen hours and forty-five minutes were expended in the cross-examination of defendant’s nine expert witnesses. In the absence of specific references by plaintiff’s counsel this asserted error is denied. ASSERTED ERROR # 12 “The Court erred in permitting Defendant’s counsel to argue based upon alleged conversations between himself and co-counsel regarding the Lamm charts.” The matter of the Lamm charts has been carefully considered herein (supra pp. 1226-1229). The uncontroverted evidence indicates that plaintiffs’ counsel were aware of the Lamm charts, conducted extensive cross examination of Dr. Lamm as to the basis of his opinion and were given ample opportunity to interrogate Dr. Goddard regarding his use of the charts. Plaintiffs had the opportunity either to call a rebuttal witness or to read from their cross-examination of Dr. Lamm. They elected to do neither. It serves little purpose to repeat the analysis the Court has already made. This asserted assignment of error is denied. ASSERTED ERROR # 13 “The Court utilized the incorrect burden of proof of proximate cause when violations of the Food, Drug and Cosmetic Act are alleged.” This asserted error, even if correct, is totally irrelevant to the issue presented to the jury. The Court has discussed previously its exclusion from the record of the PDA approval of the drug {supra p. 1220) and repeats once again that the issue presented to the jury in this case is as follows: “Have the plaintiffs established by a preponderance of the evidence that ingestion of Bendectin at therapeutic doses during the period of fetal organogenisis is a proximate cause of human birth defects (Appendix C-5750). If this asserted error seeks to raise the question of a definition of proximate cause it is the Court’s position that proximate cause was defined in accordance with controlling Ohio law (Appendix C-5730). This assertion of error is hereby denied.” ASSERTED ERROR #B 1 “The Court erred in not allowing the individual Plaintiffs to adduce evidence of the time of ingestion, injuries suffered, genetic history, history of, or absence of history of ingestion of other drugs during the critical period of pregnancy or the absence of other possible causes of the Plaintiffs birth defects.” The Court is unaware that this issue was raised at trial. Plaintiffs have not provided a citation to the trial transcript supporting their allegation. There was an objection made at the Final Pretrial Conference {see doc. no. 1814), where the Court limited the witnesses to be presented at trial to expert witnesses. Plaintiffs did not express such a concern over not being permitted to call any of the 613 plaintiffs identified in the witness list attached to the Final Pretrial Conference Order (doc. no. 1672 at 22-33.) No objection was made to the preclusion of individual plaintiffs’ testimony in the March 19, 1984 Status Conference, although the subject was discussed. (Doc. no. 1504 at 33-35). As late as January 18, 1985, the plaintiffs stated in a memorandum that “[they] do not dispute the format of this trial nor do they dispute that the respective parties during their case in chief, will be limited to the use of expert witness [sic].” (Doc. no. 2468 at 2). Nevertheless, the Court will briefly describe the rationale for its decision to exclude testimony and evidence pertaining to the individual plaintiffs. Initially it is noted that evidence of the dates when the over 800 plaintiffs ingested Bendectin was unnecessary and irrelevant in the first phase of the trial because the jury was instructed, without objection from the plaintiffs, to assume that Bendectin was ingested at therapeutic doses during the period of fetal organogenesis. (Appendix C-5730). Indeed, the plaintiffs submitted the following jury instruction to the Court: “For purposes of determining the issues before you, you are to assume that the mothers in this litigation who ingested Bendectin during pregnancy, took Bendectin in therapeutic amounts, as prescribed by their respective physicians and were not exposed to other substances which may cause birth defects.” (Doc. no. 2981). Evidence and testimony concerning the injuries suffered, the genetic history of, and the drug history of the plaintiffs listed in the Final Pretrial Conference Order (doc. no. 1672) are not relevant because they do not tend to make the fact of consequence in the causation phase of the trial more or less probable. The mere fact that one or several or a thousand plaintiffs ingested Bendectin and, nine months later, gave birth to a malformed child is simply a temporal association. Temporal associations do not establish causation. Accepting for illustrative purposes the figure of 30 million pregnant women who have taken Bendectin during pregnancy and further assuming a background birth defect rate of 2 to 5%, one would expect 600,000 to 1,500,000 children to be born malformed due to chance (i.e., a cause other then Bendectin). In view of these facts, a single incident of a malformed child produced by a woman who had ingested Bendectin does not support a cause and effect relationship but is, rather, conjecture which contributes nothing meaningful to the determination of the issue at hand. Hosier v. United States, 718 F.2d 202, 205-06 (6th Cir.1983). The demonstration of a temporal relationship, not being probative of causation, renders the testimony concerning the individual plaintiffs irrelevant and inadmissible. Fed.R.Evid. 401, 402. See Hupp v. United States, 563 F.Supp. 25, 30 (S.D.Ohio 1982). Even if such evidence were viewed as relevant, the low probative value of the testimony of the individual plaintiffs is substantially outweighed by the danger of confusion of the issues, risk of unfair prejudice, and considerations of undue delay and waste of time. See Fed.R.Evid. 403. The unfair prejudice exists in permitting a number of plaintiffs to testify or submit evidence, thereby potentially inducing a decision of the jury on an emotional basis. See Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir.1980). Additionally, the admission of such evidence would have confused the jury in that they inevitably would have focused their attention on the specific details of the individual plaintiffs who had testified rather than concentrating on the central issue of causation. To allow evidence and testimony concerning all plaintiffs or even a portion thereof would have unquestionably resulted in a substantial delay in an already lengthy trial on issues that were collateral to the central issue in the first phase. See Stengel v. Belcher, 522 F.2d 438, 442 (6th Cir.1975). Testimony pertaining to the individual plaintiffs was not totally barred — it was only held inappropriate to the causation issue. Had plaintiffs prevailed on causation such testimony would have been probative and essential. The Court concludes that the Rule 403 balance should be struck in favor of excluding evidence of individual plaintiffs’ medical histories. ASSERTED ERROR # B 2 “The Court erred in excluding evidence of fraud by Merrell in the conduct of animal and human tests with Bendectin and more specifically, evidence that the Bunde-Bowles study was fraudulent, and that Merrell falsely reported the results of the animal tests.” The allegation of the plaintiffs is not completely accurate. The fact is that there was evidence admitted at trial which developed in detail the deficiencies of the Bunde-Bowles study. Such evidence consisted of the following trial testimony: 1. The co-author of the Bunde-Bowles study, Dr. Bunde, was a member of the Department of Medical Research at the Merrell Company (T. 397). Dr. Bowles was also associated with the defendant (T. 1958). 2. The study was “poorly designed” and “one really designed not to be likely to provide very useful information.” (T. 400). 3. Other shortcomings included: the sample size was too small (T. 400-401); the matching of the exposed sample to the control was improperly done (T. 401); the method of determining whether a mother did, in fact, take Bendectin “was not a very thorough one,” (T. 401); the records relied upon to indicate the presence of malformations may not have been dependable (T. 401-402); the data in the study demonstrating a lower incidence of malformations in the control group as opposed to the exposed group makes the data “suspect” (T. 406); the data suggest a form of preselection (indicative of a lack of a representive sample) (T. 407). 4. Dr. Done performed his own analysis. of the raw data generated by the Bunde-Bowles study and discussed his analysis at length (T. 408-435). There were problems in the data collection phase of the Bunde-Bowles study (T. 413), such as the same patient being classified as a member of both the control group and the Bendectin-exposed group (T. 413); quite a few births were not found recorded in the birth registery records obtained from the hospital (T. 415); there were thirty-six instances in which patients were reported to have taken Bendectin in the study but there were no records indicating that they had, in fact, been provided Bendectin (T. 415). 5. When asked if he had an opinion as to whether the Bunde-Bowles study was “reliable in proving the causation of Bendectin” (T. 446), Dr. Done testified “[t]hat from the scientific standpoint, the study is totally worthless.” (Id.). 6. Dr. Done then discussed rat and rabbit studies performed by Merrell with Bendectin and its chemical components (T. 446). He criticized the studies for failing to select the appropriate doses of the drug administered to the animals in order to delineate a potential dose-response relationship (T. 458). 7. Dr. McMahon accorded “little weight” to the Bunde-Bowles study (T. 2073). He further characterized the study as “very weak” because the questionable methodology used resulted in an underassessment of the number of malformations which occurred (T. 2077-79). 8. Dr. Newberne discussed a 1962-63 rabbit teratology study conducted by the defendant (T. 2467). He relied on the study only “to a small extent.” (Id.). The deficiencies in the study, such as the small number of rabbits used and the fact that there was below-zero weather during the experiment were discussed, with Dr. Newberne concluding the study “had very little relevance.” (Id.). The Court admitted the animal study into evidence (T. 3465). He further testified that, in his capacity as Director of Safety at Merrell, he did not rely upon the findings of the Bunde-Bowles study (T. 2500). 9. Dr. Holmes did not consider the Bunde-Bowles study “helpful.” (T. 3059-60). The plaintiffs have cited to no pretrial ruling specifically excluding evidence that the Bunde-Bowles or any other study was fraudulent. The Court did limit the first phase of the trial to causation, deferring issues of negligence and fraud until a later stage. (Doc. no. 1504 at 28). To the extent that the plaintiffs’ alleged trial error results from that point, Federal Rules of Evidence 401 and 403 were the grounds for excluding such evidence from the causation phase of the trial. (See supra pp. 1221-22). To the extent that the plaintiff’s assertion of trial error is premised on the Court’s exclusion of fact witnesses in the first phase of the trial, the basis for that ruling is discussed in detail below (see supra pp. 1221-22,1226-27) and need not be duplicated here. The alleged error is unsupported by the evidence. ASSERTED ERRORS # B 3 & 4 “The Court erred by failing to allow evidence that drugs chemically related to Doxylamine contained pregnancy warnings and were contraindicated in premature infants” and “in excluding evidence that Unisom, a brand of Doxylamine, sold by other manufacturers contained pregnancy warnings and was contraindicated in premature infants.” At trial, the plaintiffs did not dispute the fact that their proffered exhibits 3188, 3189, and 3190 had not been disclosed to the defendants until they were offered into evidence during Dr. Thoman’s testimony. Such conduct violated this Court’s Rule II.B, which mandates the disclosure of all documents “expected to be used at trial” to the opposing counsel prior to the Final Pretrial Conference. This factor alone would have been sufficient grounds to prohibit the plaintiffs from introducing the three exhibits into evidence, see Fed.R. Civ.P. 16, 37(b)(2)(B), as was noted by this Court at trial (T. 1676). Additionally, the merits of the offered exhibits containing the labels for Pyribenzamine, Benadryl, and Unisom were reviewed at trial. The threshold requirement of relevancy simply was not met. The fact that warnings were placed on these three over-the-counter (nonprescription) drugs by manufacturers other than the defendant did not make the existence of a fact of consequence more or less probable. While the fact that a warning was placed by a third party on a nonprescription drug is conceivably relevant to a subsequent issue of notice or negligence, it is not germane to the single issue of whether Bendectin causes birth defects. The exhibits were later resubmitted at trial in the form of excerpts from the Physicians’ Desk Reference (5th ed. 1984) (“PDR”). Again it was argued that the warnings and contraindications contained in the PDR for each of the three drugs were “probative because the drug companies are experts,” citing Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 423 N.E.2d 831 (1981), and Tomer v. American Home Products Corp., 170 Conn. 681, 368 A.2d 35, 40 (1976), (T. 1681-82). The plaintiffs’ argument is defective factually and logically. The contraindications and warnings on these drugs are ambiguous, at best, when attempting to infer the purpose for which the warnings were designed. A “contraindication” does not attempt to establish or report a cause and effect relationship. Rather, it deals with the general clinical advisability of a particular drug therapy being used to treat a disease or condition. Schmidt's Attorney’s Dictionary of Medicine (J. Schmidt ed. 1985); Stedman’s Medical Dictionary (W. Dornette 5th ed. 1982). Contrast such proffered evidence with studies demonstrating the teratogenicity of the three drugs. Here, rather than introducing scientific or medical evidence on the teratogenicity of Unisom or of chemical compounds allegedly similar to Bendectin in order to make the fact of consequence in this case, i.e. Bendectin’s teratogenicity, more or less probable, the plaintiffs seek to derive that inference from a warning placed on a nonprescription drug by third parties as such parties were required by law to do. Without delving into a lengthy discussion on the legal background of over-the-counter drug warning requirements, the Court observes that the Seley and Tomer cases cited by the plaintiffs to support their position actually weigh heavily against them. Those cases exemplify the significant differences between the law on drug warnings and the principles of causation. The Seley Court stated that “[a] jury may find that a warning is inadequate and unreasonable even where the existence of a risk, i.e., a causal relationship between the user of the product and resulting injury, has not been definitely established____ Thus, where scientific or medical evidence exists tending to show that a certain danger is associated with the use of the drug, the manufacturer may not ignore or discount that information in drafting its warning solely because it finds it to be unconvincing____ [A] warning is adequate for Comment K purposes where, under all the circumstances, it reasonably discloses to the medical profession all risks inherent in the use of drug which the manufacturer knew or should have known to exist.” Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 198, 423 N.E.2d 831, 836-37 (1981) (citations omitted). A reading of the Tomer case, the second case cited by the plaintiffs, reveals that the manufacturer is obligated to warn in cases where the drug may affect only a small number of idiosyncratic or hypersensitive users. Tomer v. American Home Products Corp., 170 Conn. 681, 368 A.2d 35, 40 (1976). Given this background, it is clear that the mere fact that a drug has a general warning or contraindication against its use in pregnancy is not probative of the drug’s teratogenic effect. When requested to bolster their position on the Unisom PDR with evidence that the drug causes birth defects, the plaintiffs simply pointed to the warning against giving Unisom to a nursing child. (T. 3299-3300). Again, the contraindications listed for Unisom against asthma, glaucoma, enlarged prostrate glands, and pregnancy were too vague and ambiguous to be probative of any teratogenic effect of the drug. (See Pltfs.’s Exh. 3190,3332). In fact, the plaintiffs did not dispute the argument of the defendant that Unisom was labeled with a warning because of anticipated regulations rather than because of any concern about the potential teratogenicity of the drug. (T. 3298, 3529-30). Furthermore, the statements contained in the PDRs for Pyribenzamine and Benadryl were not probative of their teratogenic effect. (Pltfs.’s Exh. 3188: “Although no Pyribenzamine-related teratogenic potential or other adverse effects on the fetus have been observed in limited animal reproduction studies____”); (Pltfs.’s Exh. 3189: “Experience with this drug in pregnant women is inadequate to determine whether there exists a potential for harm to the developing fetus”). In sum, the three exhibits are not relevant. The warnings are out-of-court statements offered to prove the truth of the matters asserted. Even when resubmitted in PDR form, the warnings do not fall within the learned treatise exception of Federal Rule of Evidence 803(18) nor the commercial publications exception of Rule 803(17). The warnings are in fact inadmissible hearsay. Even if viewed as relevant under Rule 401, the low probative value of such evidence is substantially outweighed by the danger of confusing and misleading the jury and by the delay which would result from litigating these collateral issues. Fed.R.Evid. 403. . The plaintiffs also offered the exhibits through the testimony of Dr. Thoman. Rule 703 provides that if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be adm