Free Reply to Response to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00990-AWT Document 29-3 Filed 07/06/2004 Page 1 of 3
LEXSEE 1998 US DIST LEXIS 22413
LYNN GOLD v. DALKON SHIELD CLAIMANTS TRUST
No. B-82-383 (EBB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
l 1998 [LS. Dirt. LEXIS 22413
June 15, 1998, Decided
June 15, 1998, Filed
DISPOSITION: [*1] Defendants Motion for through the settlement procedure detailed in the Plan.
Sunrrnary Judgment GRANTED. When this process failed to resolve the matter to her
satisfaction, the plaintiff was certified [*2] on December
LexisNexis(R) Headnotes 13, 1996 by the United States Bankruptcy Court for the
Eastern District of Virginia to reopen her previous
litigation, filed in this court. On January 30, 1998, the
COUNSEL: LYNN GOLD, plaintiff Pro se, Southport, plaintiff filed her second amended complaint in the
CT. reopened litigation. Now the defendant moves the Court
for summary judgment pursuant to FED. R. C11/Y P. 56.
For DALKON SHEILD CLAIMANTS TRUST, For the reasons set forth below, the defendants motion
defendant: R. Cornelius Danaher, Jr., Nancy K. Roux, (Doc. No. 68) is GRANTED.
Danaber, Tedford, Lagnese & Neal, Hartford, CT.
I. Statement of Relevant Facts
For DALKON SHEILD CLAIMANTS TRUST, . .
tartar, Pau] F. Sr..r.r. Elizabeth C. H.m.,W.rr, Thc Cm my me f¤¤tS.b¤11eed
Vmablc Baefcr & Howard Baltimore MD necessary to an understanding of the issues rn, and the
’ J ’ ’ ' decision rendered on, this motion. The facts are culled
_ from the affidavits, depositions and other exhibits
IOR JUDGE, submitted by both parties. Unless otherwise indicated,
` ` these facts are not in dispute between the parties.
OPINIONBY: ELLEN BREE BURNS The plaintiffs medical records show that she had a
Lippes Loop IUD inserted in September, 1970. This IUD
OPINION: was later removed due to partialexpulsion from the
, uterus. On May 3, 1972 a Dalkon Shield IUD was
SUN¥`I£;E;GJ([;§ S MOTION FOR inserted into the plaintiffs uterus. The next month the
plaintiff complained of heavy menses and cramping. The
In 1982, the plaintiff; Lynn Gold, brought an action Dalkon Shield was checked and evaluated as "O.K." On
against A.H. Robins Company, alleging personal injury January 31, 1978 the plaintiff had a pelvic exam [*3]
caused by the Dalkon Shield, an intrauterine which led to a diagnosis of endometriosis. On February
` contraceptive device ("IUD"), designed, manufactured, 8, 1979 the Dalkon Shield was removed. Throughout the
and sold by the defendant company. After A.H. Robins tinre the Dalkon Shield was in place the plaintiffs
Company declared bankruptcy, a Plan of Reorganization medical records reflect that she intermittently
("Plan") was created in 1988 that established the Dalkon complained of abdominal discomfort. nl
Shield Claimants' Trust ("Trust") to handle the many
claims filed against the company in relation to the
Dalkon Shield. Ms. Gold attempted to resolve her claim
..,,,, ,. ..,., -I-,II.I--..C...-..... .-.,,.,...-.-_.I ......... -...,.......,.,..,,,,n,L.,I,s,..2-._LI .............. - ............ .. ..... ,,_.._-.-...- ................ ....,,,. ,......,.., .,,,2 .,,. mama, .... -.,-.....- ..- .... -..-..,..-.,.,..--..,._m_-.s.-..., ....... -.

Case 3:03-cv-00990-AWT Document 29-3 Filed 07/06/2004 Page 2 of 3
Page 2
1998 U.S. Dist. LEXIS 22413, *
nl The plaintiff also testified in her moving party is entitled to summary judgment if it can
deposition that she experienced a recurrent fever show that there is an absence of evidence to support the
beginning in the late fall of 1978 and proceeding nonmoving party's case. Id at 325.
g1*¤.¢'r-Hurry si we in rsd=¤¤¤» the resets iii eiiiii ii iiiiiii ii ··iii iiiiiiiiiiiii
avmg experienced an episode of acute . . .
. . . . . . and draw all inferences m favor of the nonrnovrng party
abdominal pam which probably couicrded with . . h 1 . ld
the fever P1 ,S Dep at 73 rn order to deterrnrne ow a reasonab e jury wou
` ` ` ` decide." Aldrich, supra, 963 F.2d at 523. Hence, "only
when reasonable minds could not differ as to the import
On July 8, 1980, Dr. Theodore Reed performed a ofthe evidence is summary judgment proper. [*6] "
hysterosalpingogram on the plaintiff This procedure Bryant v. Majjizcci, 923 F .2d 979, 982 (2d Cir.), cert.
involves injection of a radiopaque material after which denied, 502 US. 849, 112 S. Ct. 152, 116 L. Ed 2d 117
the fallopian tubes and uterus can be visualized by (1991). See also Suburban v. Proctor Gas, Inc., 953 F.2d
roentgenography (x-ray). The radiologist concluded that 780, 788 (2d Cir. 1992).
the plaintiff suffered from bilateral hydrosalpinx, i.e. . . . . .
distension of the fallopian tubes by clear fluid. The same B` The Cmmecucut Product Liability Act Claim
procedure was performed by Dr. Reed again on April 2, The Court has jurisdiction over this action pursuant
1981. A different radiologist concluded that [*4] the to 18 USC. § 1332 (conferring diversity jurisdiction).
plaintiff had persistent hydrosalpinx "presumably due to Therefore, the plaintiffs cause of action lies under
past PID" (pelvic inflammatory disease). Connecticut law, specifically, the Connecticut Product
iii 1994, ini preriiair had urine Sampras Sem by are L‘“'°‘"W AC? ( CPLA )i COM Ger Sm § . 52* 729 it
seq. She claims damages based on the theories of strict
Stijmford Department of Health to the Centers for liability in tort negligence failure to warn breach of
Disease Control to rule out chlamydia as a cause of the ’ ’. . ’
. . . . warranty, and fraudulent misrepresentation. n2 Because
presumed PID. Her clinical diagnosis on the blood test . . . .
. . . . . each of these theories requires the plaintiff to prove
order forms 1S listed as mfertrlrty. The blood tests were . . . . . .
. . causation, the following analysis applies to the plaintiffs
"°g“""° fe °h""mY°"“· iiriirie iiiiiriie of iieiriiii.
II. Legal Analysis
A. The Standard of Review n2 The plaintiff also alleges "civil
. . . conspiracy" in her Second Amended Complaint.
In 2 motion for S my Judgment the burden is OH Because no such tort lies under the CPLA either
the moving party to establish that there are no genume GX HCM SEG COM Gm Sm, § 52_572I;1(b) Or
issues of material fact in dispute and that it is entitled to . p . . y’ ' ' ' ’
. _ implicitly under the common law, the Court need
judgment as a matter of law. FEDR. C1 KP. 56(c), not address this aug ation
Anderson v. Liberty Lobby, 477 US. 242, 256 106 S. Ct. g `
2505, 2518, 91 L. Ed 2a' 202, (1986); Goenaga v. March [*7]
of Dimes Birth Defects Foundation, 51 E3 d 14, 18 (2d [
Cir. 1995). A court must grant summary judgment "'if As just intimated, the deficiency in the plaintiffs
the pleadings, depositions, answers to interrogatories, case is found in her inability to meet her burden of proof
and admissions on file, together with affidavits, if any, as to causation. Under the CPLA a plaintiff must prove
show that there is no genuine issue of material fact."' that the product was defective and that the defect
Miner v. City of Glens F ai/s, 999 F .2d 655, 661 (2d Cir. proximately caused her injuries. Sharp v. Wyatt, Inc., 31
1993)(citation omitted). "A dispute [*5] regarding a Conn. App. 824, 627 A.2d 1 34 7, 1352 (Conn. App.
material fact is genuine 'if the evidence is such that a 1993). A requisite element of proximate cause is "cause
reasonable jury could return a verdict for the nonmoving in fact." See e. g. Fitzgerald v. Manning, 679 F2d 341,
party."‘ Aldrich v. Randohnh Cent. Sch. Dist., 963 E2d 348 (4th Cir. 1982)(defining proximate cause in a
520, 523 (2d Cir.), cert. denied, 506 US. 965, 113 S Ct. medical malpractice action); Sharp, 627A.2d at 1354
440, 121 L. Ed 2a' 359, (1992) (quoting Anderson, (explicating the requirements for proximate cause under
supra, 4 77 US. at 248). Conn. Gen. Stat § 52-5 72q·(c)). T
After discovery, if the nonmoving party "has failed The defendant maintains that the plaintiff cannot
to make a sufficient showing on an essential element of demonstrate cause in fact because she has failed to retain
[its] case with respect to which [it] has the burden of an expert to testify to the causal link between any defects
proof" then summary judgment is appropriate. Celotex in the Dalkon Shield and her injuries. Def's Mem. in
Corp. v. Catrett, 477 US 317, 323, 106 S Ct. 2548, Supp. of Mot. for Summ. J. at 5. The plaintiff argues that
2554, 91 L. Ed 2d 265, (1986). As a corollary, the she will prove causation with the testimony of a court-

Case 3:03-cv-00990-AWT Document 29-3 Filed 07/06/2004 Page 3 of 3
` Page 3
1998 U.S. Dist. LEXIS 22413, *
appointed expert, written reports, and affidavits. Pl.'s (citing Collette v. Collette, 1 77 Conn. 465, 418 A.2cl 891,
Mem. in Opp‘n to Mot. for Summ. J. at 13. 894 (Conn. 1979).
The Court has recently declined to appoint an To meet her burden of proof as to cause in fact, the
independent expert as requested by the [*8] plaintiff n3 plaintiff must establish a causal link between a defect in
The dispositive issue for the resolution of this motion for the Dalkon Shield and her claimed injuries. Specifically,
summary judgment is, therefore, whether a reasonable she must demonstrate that it is more probable than not
jury could find that the plaintiff has met her burden of that a defective tail string in the Dalkon Shield caused
proof as to causation without the benefit of expert her to contract PID which then led to her infertility. The
testimony. plaintiff [*10] cannot make this showing nom articles
and clinical studies which conclude that a defective tail
string in the Dalkon Shield tends to cause PID which
n3 See Ruling on Plaintiffs Petition to have often leads to infertility. She must prove by a
the Court Appoint Expert Witnesses, dated June preponderance of the evidence that this series of events
3, 1998. The Court concluded that the plaintiff that she alleges actually occurred in her case. The Court
failed to make a strong enough showing that the fmds that expert medical testimony is the sole means by
issues involved were so highly technical that it is which she can carry this burden of proof
mcessmiy F0 mterlcrc with the advarsmal plloccss Even assuming that the plaintiff can show that the
by appointing an independent expert for which D . .
alkon Shield was defective and that she suffered the
the defendant would have to bear the expense. . . . . . .
. . . injuries she claims, wrthout a proffer of expert medical
That decision however, does not contradict the . . l. k h d f t 1: h . .
C0m,S Ending in this Ruling that ajury Of testimony as to causation to rn t e e ec ot e injury,
. . . . a reasonable jury could not find that the plaintiff has
layman do Had cxpcrt gmdancc m dcmrmmmg proved that the defect caused her specific injuries She
causation. The Court simply places the burden of . . '. ’
. . . . . therefore, fails to demonstrate the existence of a triable
proving the plarntiffs case on the plaintiff, where issue Of fact to O to a . Giwm thc absence Of
it pmpmy belongs in our advcrsarial System evidence to proie the jallgjnqtiffs case, the defendant trust
is entitled to summary judgment. Ccrvallo v. Star
Expert testimony is required when the factual Enterprise, 892 F. Supp. 756, 774 (E. D. Vo.
content of the underlying issues is not found within the 1995)(granting summary judgment for defendant in a
[*9] laypersons' common knowledge and experience. toxic tort case when the plaintiffs failed to offer
F one v. Zimmer, 927 F.2tl 124, 131 (2d Cir. 1991) admissible expert testimony in opposition to defendant's
(affirming the trial court's directed verdict for the stunmary judgment [*11] motion), affd, 100 F .3d 1150
defendant in a product liability case because, absent (4th Cir. 1996).
expert medical testimony on the issue of causation, the
plaintiffs could not prove the elements of strict liability I]. Conclusion
Or ncghgenccx In rg Ffmmg°in’ 2*9 Con"` 15; 690 A`2d For the foregoing reasons, the defendant's Motion
865· 876 (C“””· 199 Marrlrmg this Standmd m ihr rm Summa Jud mem mee No 68) is GRANTED
context of an alleged ethical violation by a state court ry g ' ` `
judge). SO ORDERED
Medical evidence relating to causes of injury to the ELLEN BREE BURNS, SENIOR JUDGE
tliltunan body is not normally considered to dwell within UNITED STATES DISTR1 CT COURT
e common knowledge of a layperson. Connecticut v.
MCC]m”y’ 207 Colm 233’ 54] A`2d 96’ 100 (Cm"` 1988) Dated at New Haven, Connecticut, this 15th day of June,
1998.