768 F.2d 93 (6th Cir. 1985), 82-1790, Bogorad v. Eli Lilly & Co.

Docket Nº:82-1790.
Citation:768 F.2d 93
Party Name:Sherri BOGORAD, Plaintiff-Appellant, v. ELI LILLY & COMPANY, Defendant-Appellee.
Case Date:July 17, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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768 F.2d 93 (6th Cir. 1985)

Sherri BOGORAD, Plaintiff-Appellant,


ELI LILLY & COMPANY, Defendant-Appellee.

No. 82-1790.

United States Court of Appeals, Sixth Circuit

July 17, 1985

Argued Feb. 24, 1984.

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John A. Obee, Charfoos, Christensen, Gilbert & Archer, P.C., Adrienne G. Southgate, argued, Detroit, Mich., for plaintiff-appellant.

John E.S. Scott, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., Larry R. O'Neal, argued, Shook, Hardy & Bacon, Kansas City, Mo., for defendant-appellee.

Before EDWARDS [*] and CONTIE, Circuit Judges, and SPIEGEL, [**] District Judge.


Plaintiff Sherri Bogorad filed a complaint in the U.S. District Court for the Eastern District of Michigan which was dismissed on defendant Lilly's motion. Bogorad appeals. The appeal presents two important issues--one procedural and the other substantive.

The Procedural Issue

The District Court dismissed this case before trial. Lilly claims that Bogorad's counsel "voluntarily" sought the dismissal and that the dismissal is therefore final and unappealable under Rule 41(a), Federal Rules of Civil Procedure. Bogorad's counsel claims that the District Court had dismissed finally the only viable claim which she had advanced and that such a dismissal was "final" even though the District Judge offered to hear her suit to the degree that it sounded in negligence.

This court, in its latest treatment of this issue, has held that a similar judgment was appealable when the "solicitation of the formal dismissal was designed only to expedite review of an order which had in effect dismissed appellant's complaint." Raceway Properties, Inc. v. Emprise Corp., 613 F.2d 656, 657 (6th Cir.1980); see also United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

We decline to dismiss appellant's appeal upon the procedural ground argued by appellee. Appellant's motion to dismiss must be read in the light of the District Judge's rulings which ruled out the cause of action she was seeking to present. As will be shown below, we believe she had stated a case for jury trial under Michigan law.

The Substantive Issue

Plaintiff Sherri Bogorad's claim in outline form is as follows: 1) Her mother, Diane Bogorad, took massive doses of diethylstilbestrol (DES) in 1951 when she was pregnant with Sherri; 2) Lilly manufactured

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and recommended to doctors including Mrs. Bogorad's doctor the drug Diane Bogorad took; 3) By 1951 it was known in the scientific community that DES taken by a pregnant woman could adversely affect her fetus; 4) Before 1951, cancer researchers were giving DES to animals as a carcinogen in order to study resulting cancers; 5) By 1975 Sherri Bogorad had developed vaginal adenosis--a condition defined as "the presence in the vagina of multiple ectopic areas of folded endocervical mucosa; " 6) This last stated condition occasioned portions of Sherri Bogorad's vagina to be removed surgically; 7) As a result of Sherri Bogorad's exposure and the operation just referred to, she is subject to the possibility of inflammatory disease in the pelvis, irregular menstrual periods and a greater possibility of infertility than a normal female who had not been exposed to DES; 8) She has experienced psychological trauma as a result of the circumstances related above and will need to be monitored for the rest of her life due to the possibility of vaginal cancer and faces an increased risk of an unfavorable outcome of any pregnancy she may have.

Plaintiff's claims as just outlined are, of course, completely untested due to the dismissal entered by the District Judge, but our review of this case convinces us that they should be tried.

We are aided in this decision by two recent decisions of the Michigan Supreme Court which the District Judge did not have available to him at the time of his ruling. Subsequent to the trial court's decision and to the briefing and argument of this case in this court, the Michigan Supreme Court handed down a lengthy and carefully phrased unanimous decision. We read it as reiterating the strong inclination in Michigan law toward favoring trial of any properly pled claims unless those claims are "clearly unenforceable as a matter of law." Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984). Chief Justice Williams' opinion bears quotation in this respect:

"The test which the court should apply in considering motions under GCR 1963, 117.2(1) is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery." Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 431, 202 N.W.2d 577 (1972).

418 Mich. at 323, 343 N.W.2d at 169. 1

The District Judge could not have reviewed plaintiff-appellant's complaint with this exact standard in mind since the Abel opinion was not available to him at that time.

Even more importantly, we believe he should have available a still later opinion of the Michigan Supreme Court which appears to us to mandate trial of the issues in this case. In Prentis v. Yale Manufacturing Co., 421 Mich. 670, 365 N.W.2d 176 (1984) (released Feb. 11, 1985), the Michigan Supreme Court said as follows:

"We hold that in this products liability action against a manufacturer for an alleged defect in the design of its product, where the jury was properly instructed on the theory of negligent design, the trial judge's refusal to instruct on breach of warranty was not reversible error. Such instructions could have created juror confusion and prejudicial error. Indeed, such an instruction would have been repetitive and unnecessary and could have misled the jury into believing that plaintiff could recover on the warranty count even if it found there was no "defect" in the design of the product. See Smith v. E.R. Squibb & Sons, 405 Mich. 79, 91, 273 N.W.2d 476 (1979).

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"This opinion is limited solely to its facts. We do not suggest that implied warranty and negligence are not separate and distinct theories of recovery; see Squibb, supra, p. 98, 273 N.W.2d 476 (Levin, J., dissenting ), or that the Michigan products liability statute, M.C.L. Sec. 600.2945; M.S.A. Sec. 27A.2945, has merged all former products liability theories or causes of action into a single unified 'products liability theory.' 30 We do not dispute the generally recognized distinction between the elements of negligence and breach of warranty. We recognize that the negligence theory generally focuses on the defendant's conduct, requiring a showing that it was unreasonable, while warranty generally focuses upon the fitness of the product, irrespective of the defendant's conduct. See Squibb, supra, pp. 98-99, 273 N.W.2d 476 (Levin, J., dissenting ).

"This holding is based upon the recognition that under the common law of products liability, in an action against the manufacturer of a product based upon an alleged defect, in its design, 'breach of implied warranty and negligence involve identical evidence and require proof of exactly the same elements.' See Squibb, supra, p. 88, 273 N.W.2d 476. A manufacturer has a duty to design its product so as to eliminate any unreasonable risk of foreseeable injury. Owens v. Allis-Chalmers Corp., 414 Mich. 413, 425, 326 N.W.2d 372 (1982). For the lack of reasonable care in the face of such duty, the manufacturer may be answerable in a negligence action. Elsasser v. American Motors Corp., 81 Mich.App. 379, 384, 265 N.W.2d 339 (1978). When proceeding under a theory of implied warranty, a design defect is established by proof that the product is not reasonably safe for the uses intended, anticipated, or reasonably foreseeable. Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14, 241 N.W.2d 738 (1976), lv. den. 397 Mich. 862 (1976). For the sale of a product defective in such...

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