Bogorad v. Eli Lilly & Co.
Decision Date | 17 July 1985 |
Docket Number | No. 82-1790,82-1790 |
Citation | 768 F.2d 93 |
Court | U.S. Court of Appeals — Sixth Circuit |
Parties | Prod.Liab.Rep.(CCH)P 10,622 Sherri BOGORAD, Plaintiff-Appellant, v. ELI LILLY & COMPANY, Defendant-Appellee. |
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 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.
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 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:
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