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PAGE 629 SHEET 1 629 I 2 3 STEPHEN! 5 of the Estate of deceased, and r 6 individually, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK I as Administrator _LKELLER PHEN KELLER, CV-96-0470 United States Courthouse Haupnauge, New York [-RUDDY O QAISAR __ CHEST PHYSICIANS, and BROOKHAVEN 'QIC ASSOCIATES, PC, June 4,1998 -X 9:30 o'clock ajn TRANSCRIPT OF TRIAL BEFORE THE HONORABLE DENIS R HUR] UNITED STATES DISTRICT JUDGE, and a jury APPEARANCES: 2Nev?Vork,rNew York 10007 7 For the Plaintiff: BY: BRADLEY A SACKS, ESQ 18 REGINAJABBOURESQ 19 20 For the Defendant: MARTIN, CLEARWATER & BELL For Deft White-Ruddy 21 220 East 42nd Street New York New York 10017 22 BY: BRUCE HABIAN, ESQ 3 LAW OFFICES OF GERARD J MARULLI 24 For Deft AfzalA Suffolk 115 Broadway 25 New York New York 10006 BY: SANDFORDR LINDENBAUM, ESQ MARYANN STEIGER, CSR OFFICIAL COURT REPORTER 1 THE COURT: Good morning, everybody If you would 2 all be seated 3 Yes, Mr Undenbaum 4 MR LINDENBAUM: Your Honor, I happened to see a 5 news broadcast last night on channel S and heard a 6 broadcast on the radio -1 think it was WFAN - on the way 7 home last night about a football player, LeShon Johnson, 8 who plays (or the Giants who was diagnosed yesterday - or 9 it was announced yesterday-be was diagnosed with 10 rymphoma 11 What was significant is that all of the broadcasts 121 heard, and including the New York Times article on it 13 this morning, I haven't seen any other papers describe it 14 Essentially I'm quoting from the Times: 15 Team doctors detected an abnormality after a 16 routine chest X-ray last month and in subsequent tests 17 determined Johnson, 27, had a cancerous tumor 18 That's excerpted from the article 19 I would simply ask the Court to give an 20 appropriate instruction to the jury I'm not suggesting 21 that the plaintiff has done anything to engender this, of 22 course, but because it was a football player, because it 23 has been made public, we have eight people on the jury 24 How many of them listen to sports broadcasts or listen to 25 the news, this happened to have been a news item I heard as MARYANN STEIGER, CSR OFFICIAL COURT REPORTER PAGE 630 630 1 APPEARANCES: (Continued) MATTURRO & ASSOCIATES Court Reporter MARY ANN STEIGER 6 300 Rabro Drive Haupnauge, New York 11788 7 (5I6J582-1147 8 9 Proceedings recorded by mechanical stenography, transcript 10 produceobycomputer 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 MARYANN STEIGER, CSR OFFICIAL COURT REPORTER PAGE 632 632 1 opposed to a sports broadcast on television I think an 2 instruction would be appropriate 3 THE COURT: The next question is, firstly, what 4 the instructions should be 5 I assume what it ought to be is reiterating the 6 fact that their decision has to be based on the evidence 7 adduced during the course of the trial, and anything they 8 may see or read concerning cancer, other persons afflicted 9 with cancer, cannot, in any way -- do you want me to go 10 beyond that? 11 MR LINDENBAUM: I will think out loud for a 12 minute if I may, Judge, because I think it's a common 13 problem for all of us 14 But something along the lines that from time to 15 time the media reports certain things about cancer about 16 people Those circumstances should not be construed to 17 have any relationship to this case The facts there may be 18 entirely different from the facts here, and there's no 19 relationship and no conclusions that you should draw 10 Oerefrom and the balance of what you were suggesting is 21 fine 22 THE COURT Is it satisfactory that I do something 23 like that with the jury? 24 MR SACKS: No, it's not 25 You instructed the jury in the preliminary MARYANN STEIGER, CSR OFFICIAL COURT REPORTER • PAGE 633 SHEET 2 633 1 instruction that the case is to be decided based on the 2 evidence they heard in the courtroom, and you're going to 3 instruct the jury as to the same thing at the close of all 4 of evidence 5 This is nothing more than what we read in the 6 papers everyday There have been articles throughout the 7 last few weeks regarding smoking, regarding cancer, 8 regarding treatments for cancer, regarding treatments for 9 breast cancer, lung cancer It is a daily matter in the 10 newspapers 11 There is no reason to highlight this particular 12 issue other than what you will say in your ordinary 13 charge 14 To repeat the instruction now, you're highlighting 15 something that in and of itself is not prejudicial to 16 anybody 17 There's no evidence that can be presented that the 18 mere fact that somebody was diagnosed with cancer on an 19 X-ray will effect this jury, so there is no need to go 20 beyond the instructions you given them and will give them 21 Every event in life does not require a special 22 instruction 23 It would be plaintiffs position that at the 24 a
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