Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv—00990-AWT Document 25-5 Filed 06/15/2004 Page 1 of 3
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LEXSEE 1998 U.S. DIST. LEXIS 22413
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LYNN GOLD v. DALKON SHIELD CLAIMAN TS TRUST
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No. B-82-383 (EBB)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT
1998 ILS. Dist. LEIHS 22413
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June 15, 1998, Decided
June 15, 1998, Filed
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DISPOSITION: [*1] Defendants Motion for through the settlement procedure detailed in the Plan.
Summary 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 surnmary judgment pursuant to FED. R. CI V P. 56.
For DALKON SHEILD CLAHVIANTS TRUST, For the reasons set forth below, the defendants motion
defendant: R. Cornelius Danaher, Jr., Nancy K. Roux, (Doc. No. 68) is GRANTED. ,
Danaher, Tedford, Lagnese & Neal, Hartford, CT.
I. Statement of Relevant Facts
For DALKON SHEILD CLAIMANTS TRUST, . . E
defendant: pai F. Sm, Elizabeth C. Honeywell, Thscmsumsrzstsslrthsssf¤¤s.bs*·srsd E
. . necessary to an understanding of the issues in, and the g
Venable, Baetjer & Howard, Baltimore, MD. . . . .
decision rendered on, th1s motion. The facts are culled p
·¤¤>·=ES=E¤#E~BP~EEB¤srS»SENI¤Rt¤¤GEi fttttttitiidtiit;,$.?.€§§‘iE2;“;‘.t;‘.f.i§;“£.1El2S..t.1 l
UNITED STATES DISTRICT COURT` 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 partial expulsion from the
Ruunc on DEFENDANTS Morrow Fon t"°“‘S·d(i“ M? 3·,l?7%,,€‘ Daum S%‘°ld IUD W? h
SUMMARY JUDGMENT mserte into t ep a1nt1 s uterus. T e next mont, t e i
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 i
against A.!-I. Robins Company, allegmg 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.I—I. Robins time the Dalkon Shieid was in place the plaintiffs
Company declared bankniptcy, a Plan of Reorganization medical records reflect that she intermittently
("Plan") was created in 1988 that established the Dalkon complained of abdominal discomfort. ni
Shield Claimants‘ Trust ("Trust") to handle the many
claims tiled against the company in relation to the
Dalkon Shield. Ms. Gold attempted to resolve her claim


Case 3:03-cv—00990-AWT Document 25-5 Filed 06/15/2004 Pa e 2 ot 3
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1998 U.S. Dist. LEXIS 22413, *
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ni 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.
mm. January $*1979- In aiidmom Sha mcounts The Court is mandated to resolve "all ambiguities
. having experienced an episode of acute . . . 1
. . . . . . and draw all inferences rn favor of the nonmoving party
abdsmmstprnwhrhrtsbiblrGsmedtdwth tt order to tanning nmnnnntn an Wan l
the fever` PL S Dep at 73` decide." Aldrich, supra, 963 F2a' 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 summaryjudgment proper,. [*6] "
hysterosalpingogram on the plaintiff. This procedure Bryant v. Majucci, 923 F. 2d 979, 982 (2d Cir.), cert. Q
involves injection of a radiopaque material after which denied, 502 US. 849, 1 12 S Ct. 152, 116 L. Ed 2a' 11 7
the fallopian tubes and uterus can be visualized by (1991). See also Suburban v. Proctor Gas, 1nc., 953 1i2d
roentgenography (x—ray). The radiologist concluded that 780, 788 (2d Cir. 1992).
the plaintiff suffered nom bilateral hydrosalpinx, i.e. . . . . .
antnnninn nrtnn rnirnpinn tartan by aan nun. rite same B· The C°“"°°"°"t P’"°d"°t L‘ab""Y A°t 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 US C. § 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
in 1994, the praintirrrtna brand samples sent by tut L*al”l“>’ A°? ( CPLA lr C°""· Gm S"“`· § . 52'5 727* it 1
seq. She claims damages based on the theories of strict 1
Stamford Department of Health to the Centers for . . . . . . 1
. . liability rn tort, negligence, failure to warn, breach of 1
D‘S°i‘S° C°‘"T°l t° me °"t °"lamyd‘a as "‘ "a“S°" Of thc wnnnnty and annaninnt tnlntt nnnntntrnn n2 ettntnn l
presumed PID. Her clinical diagnosis on the blood test ’ . . P . . ` 1
. . . . . each of these theories requires the plamtrff to prove 1
order forms is listed as infertility. The blood tests were . . . . . . »
. . causation, the following analysis applies to the plaintiffs 1
Hrgerrtfrtchlsmrdlt- nnn stnnn. 1
H. Legal Analysis
A. The Standard of Review n2 The plaintiff also alleges "civil
. . . conspiracy" in her Second Amended Complaint.
In a.mOu0H for S‘"'““i“YJ"dg‘“f“t the burden is OH Because no such tort lies under the CPLA, either 1
the moving party to establish that there are no genuine . . a
. . . . . . . explicitly, see Conn. Gen. Stat. § 52-5 72m(b), or 1
issues of material fact m dispute and that rt is entitled to im 111:111 under tha common 1aW the com mad 1
judgment as a matter of law. FED.R. C1 VP. 56(c); Hcjsaddrgss this 3118 ation ’
Anderson v. Liberty Lobby, 477 US. 242, 256, 106 S Ct. g `
2505, 2518, 91 L. Ed 2d 202, (1986); Goenaga v. March 1*71
of Dimes Birth Defects Foundation, 51 FZ3d 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 Falls, 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, 627A.2a' 1347 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 F.2d 341,
party,"‘ Aldrich v. Randolph 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, 627 A.2d at 1354
440, 121 L. Ed 2d 359, (1992) (quoting Anderson, (explicating the requirements for proximate cause under
supra, 477 US at 248). Conn. Gen. Stat. § 52-5 72a(o)).
After discovery, if the nomnoving 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 appr;pS1·ia21e.2Ce.1$otex in the Dtalkon Shield and her injuples. Def's flglem. in h
Corp. v. Catrett, 477 US. 317, 323, 10 . t. 54 , Supp. o Mot. or Sumrn. J. at 5. e p ainti arguest at
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 25-5 Filed 06/15/2004 Page 3 of 3
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1998 U.S. Dist. LEXIS 22413, *
appointed expert, written reports, and affidavits. Pl.'s (citing Collette v. Collette, 1 77 Conn. 4 65, 418 A.2d 891,
Mem. in Opp‘n to Mot. for Summ. J. at I3. 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 Hom 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 ofthe evidence that this series of events l
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 finds 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
gccgssiligzm;;r;i;;`;§;]£1;g§ggvggtsglglajvigglicss Even assuming that the plaintiff can show that the
Y pp g P p Dalkon Shield was defective and that she suffered the
the defendant would have to bear the expense. . . . . . . ,
. . . injuries she claims, without a proffer of expert medical ,
That decision however, does not contradict the . . . . . i
, . . . . . testimony as to causation to link the defect to the injury, i
Courts finding rn this Ruling that ajury of bl . ld f. d th Hb 1 . {ffh ;
la en do need expert guidance in determining H reasom E Jury mu mt m a .€ P ff 1. as i
ym . Th C lm . I 1 th b d { proved that the defect caused her specific injuries. She,
Causainon C . 0. Slmp Y P aces .6 .uI BH 0 therefore, fails to demonstrate the existence of a triable
proving the plamtrffs case on the plaintiff where . . . a
. . . issue of fact to goto a jury. Given the absence of 2
it properly belongs m Om advarsmml System evidence to prove the plaintiffs case, the defendant trust
is entitled to summary judgment. Covollo v. Stor [
Expert testimony is required when the factual Enterprise, 892 F Supp. 7561 774 (ED. Va. i
content ofthe underlying issues is not found within the 1995)(granting summary judgment for defendant in a j
[*9] laypersons' common knowledge and experience. toxic tort case when the plaintiffs failedeto offer g
F one v. Zimmer, 927 E2d 124, 131 (2d Cir. 1991) admissible expert testimony in opposition to defendant's
(affirming the trial court's directed verdict for the summary judgment [*11] motion), affd, 100 E 3 d 1150
defendant in a product liability case because, absent (4/th Cir. 1996).
expert medical testimony on the issue of causation, the .
plaintiffs could not prove the elements of strict liability H. Conclusion
or negligence); In rg Flmggcim Z4? COM"' 15; 690 A‘2d For the foregoing reasons, the defendant's Motion
865, 876 (Conn. 1997)(applyrng this standard in the for S a Jud Sm (DOC No 68) is GRANTED
context of an alleged ethical violation by a state court ly gm ` ` `
judge). SO ORDERED
Medical evidence relating to causes of injury to the ELLEN BREE BURNS, SENIOR IUDGE
human body is not normally considered to dwell within UNITED STATES DISTRICT COURT
the common knowledge of a layperson. Connecticut v. g
Mcclgm 207 CO}/m' 233’ 541 A'2d 96’ 100 (Cm"` 1988) Dated at New Haven, Connecticut, this 15th day of June,
1998.