Radecki v. GlaxoSmithKline - Connecticut Employment Law Blog

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eference to health problems. The court and counsel agreed toconsider the matter overnight and discuss it further the nextmorning.The next morning, the defense informed the court that it wasmoving for a mistrial. In support of its motion for a mistrial,the defense argued first that “[t]he assumption . . . that jurieswill follow limiting and curative instructions does not applywhen prejudice is so severe that the instructions would beineffective.” (Trial Tr. Vol. II, 199, May 8, 2009) (citingUnited States v. Hamdy, No. 05-CR-232S, 2006 U.S. Dist. LEXIS44043, at *6 (W.D.N.Y. June 28, 2006) (citation and internalquotation marks omitted)). The defense contended that theprejudice was so severe here so as to render a curativeinstruction ineffective because, based on Radecki’s statementthat he had stage III prostate cancer with a metastatic brainlesion, the jury could reasonably infer that Radecki was dying.The court agreed that such an inference would be a reasonableone. In addition, the defense pointed to a concern that whenRadecki was asked if he was looking for a job after his surgery,he said “on paper,” and whereas the defense would ordinarilyconfront a witness who gave such a response about his effort tomitigate damages, if the defense sought to confront the plaintiffon that point, it would simply remind the jury about his cancer.At the point the motion for a mistrial was made, the defense-4-
proceeded with the understanding that Radecki had a metastaticbrain lesion, as did Radecki’s counsel and the court.Thecourt and counsel discussed various options as to how to proceed.The court eventually decided to require the plaintiff to obtainand deliver to the defense all his medical records, and alsodecided to meet with counsel later that day after defense counselhad an opportunity to review the medical records. After theparties were informed that the plaintiff would be required toturn over his medical records, Radecki had a private conversationwith his counsel, immediately after which his counsel stated:I just want to clarify one other issue, I don’t know ifwe need to go any further with it. With respect to the illness andthe treatment itself, he had the surgery and the postoperativecourse. Right now apparently he’s clear. The brain issue is notan issue–-what showed up on the imaging had not progressed, didn’twarrant treatment. I wanted you to understand. You mentioned theissue that they could be concerned that he might be [dying], wecould actually resolve that if you want to. He’s apparently clearnow.(Trial Tr. Vol. II, 213, May 8, 2009.) The jury was excused forthe day, and a recess followed.On the afternoon of May 8, the court continued the hearingafter the defense had had an opportunity to review theplaintiff’s medical records. Radecki’s medical records reflectthat he was given a whole body bone scan on October 2, 2008. Thedoctor noted a small non-specific abnormality in the rightfrontal skull and observed that the mild intensity and small sizesuggested that it was benign. However, the doctor stated that a-5-
Page 1 and 2: UNITED STATES DISTRICT COURTDISTRIC
Page 3: A: Because of the last week of Octo
Page 7 and 8: merely told the jurors not to consi
Page 9 and 10: (Trial Tr. Vol. I, 152, May 7, 2009
Page 11 and 12: change conveyed to the jury not jus
Page 13 and 14: discovery tactics designed and inte
Page 15 and 16: Id. at 1301. In Rybner v. Cannon De
Page 17 and 18: sanction in response to perjury is
Page 19 and 20: his case before a new jury would gi

Radecki v. GlaxoSmithKline - Connecticut Employment Law Blog

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