Baker v. Dalkon Shield Claimants Trust

• Decision Date: 30 July 1998
• Docket Number: No. 98-1214,98-1214
• Parties: Anita BAKER, Plaintiff, Appellee, v. DALKON SHIELD CLAIMANTS TRUST, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 248

156 F.3d 248

Anita BAKER, Plaintiff, Appellee, v. DALKON SHIELD CLAIMANTS TRUST, Defendant, Appellant.

No. 98-1214.

United States Court of Appeals, First Circuit.

Heard July 30, 1998.

Decided Sept. 23, 1998.

Paul F. Strain with whom Terri L. Turner, Venable, Baetjer and Howard, LLP, Richard A. Oetheimer and Goodwin, Proctor & Hoar LLP were on brief for appellant.

Robert V. Costello with whom Schneider, Reilly, Zabin & Costello, P.C., Neil Rossman and Rossman, Rossman & Eschelbacher were on brief for appellee.

Before SELYA, BOUDIN and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

Dalkon Shield Claimants Trust (the "Trust") appeals from a judgment in favor of Anita Baker for damage allegedly caused by the Dalkon Shield contraceptive intrauterine device (the "IUD"). The background facts, drawn from the trial record, are largely undisputed. In October 1972, Anita Baker underwent a routine gynecological examination that revealed that she had a slightly enlarged right ovary and that trichomonas, a sexually transmitted organism, was present in her Pap smear. Baker had a Dalkon Shield IUD inserted in July 1973 and removed in September 1974 after suffering severe discomfort.

In October 1974, Baker went to obstetrician/gynecologist Dr. Miles St. John. He examined Baker and fit a diaphragm for her. In the course of his examination, he noted hardness and slight irregularity in the uterus. His diagnosis was that it could have been caused by pelvic inflammatory disease ("PID") or by a fibroid tumor or by endometriosis. Concerned about this development, he asked Baker to return for a follow-up visit in three months. In January 1975, Baker returned to Dr. St. John; he reexamined her and concluded that the problem had resolved itself. He also asked Baker to return in six months but she did not do so.

In January 1979, Baker had a laparoscopy--a visual inspection through a scope--to determine why she was having difficulty conceiving. The procedure revealed that Baker had a fibroid tumor in her uterus and adhesions in her left and right fallopian tubes. It also indicated damage consistent with PID. In February 1979, she underwent exploratory and reconstructive surgery that confirmed that her infertility was due to PID. In December 1979, Baker underwent extensive reconstructive surgery and microsurgery on her reproductive organs. Sometime later, after an ectopic pregnancy, Baker had her right fallopian tube removed and her left fallopian tube sealed.

In 1980, Baker filed a complaint against A.H. Robins Company, Inc. in the district court for negligence, breach of warranty, and fraud, claiming that the Dalkon Shield IUD was responsible for her PID and subsequent infertility. There ensued a substantial delay due to the bankruptcy of A.H. Robins, the establishment of the Trust, and the processing of Baker's claim through the Trust's claims settlement process. In January 1995, Baker was certified by the bankruptcy court in charge of the A.H. Robins bankruptcy to reopen the case and proceed with litigation. The aspect of that case that concerns us on this appeal relates to chlamydia, a sexually transmitted disease now widespread in the United States.

In 1996, two chlamydia titer tests were performed upon a sample of Baker's blood. ¹ One was performed at the Trust's request, the other at Baker's. Both titer tests were positive for chlamydia, indicating that Baker had been infected by chlamydia at some earlier time. This was of importance to the defense because--in addition to disputing that Dalkon Shield IUDs could cause the PID and the effects claimed by Baker--the Trust planned to point to chlamydia as an alternative, exculpatory cause of her injury.

In October 1997, immediately before the trial, Baker moved in limine to exclude the evidence of the two 1996 chlamydia antibody titer tests as remote in time and unduly prejudicial. In support of their admissibility, the Trust submitted an affidavit by Dr. Mary Jane Minkin, a gynecologist. Dr. Minkin's affidavit explained that the medical community considered titer tests reliable evidence of prior infection by chlamydia and that chlamydia is the most common cause of the type of PID that the Trust claimed that Baker had suffered. The trial court postponed its ruling on the admissibility of the titer test evidence until a voir dire of the Trust's experts could be conducted.

Trial began in November 1997. Since the Trust's experts were not immediately available, the district court first allowed the Trust to assert in opening argument its intention to offer evidence in support of its alternative causation theory, namely, that Baker's PID was caused by chlamydia. The district court also allowed the Trust to cross-examine Baker's first witness, gynecologist Dr. St. John regarding the Trust's alternative causation chlamydia theory.

On the second day of trial and outside the presence of the jury, the district court heard the voir dire testimony of Dr. Richard Jones, another of the Trust's expert gynecologists. Dr. Jones explained (as more fully set forth below) why he believed that Baker's PID had been caused by chlamydia and not by the IUD and why the positive 1996 chlamydia titer tests reinforced his opinion. Following the voir dire testimony, the district court granted Baker's motion to exclude any reference by Dr. Jones to chlamydia or the 1996 titer tests.

The district judge said that the opinion Dr. Jones had presented in voir dire regarding the alternative causation chlamydia theory "strikes [the court] as being nothing more than a guess." In later references to this issue, which recurred throughout the trial in relation to different pieces of evidence, the district court stated that there was no "basis" for discussing the theory. On one occasion, the court remarked that the evidence relating to chlamydia was more prejudicial than probative and suggested that direct testimony by Dr. Jones on this topic would "inject ... sexual innuendo" into the trial.

Thereafter, the district court barred the Trust's experts, Drs. Jones and Minkin, from testifying about chlamydia, and barred the Trust's counsel from cross examining Baker's principal medical expert, Dr. Phillip Stubblefield, on the issue of chlamydia as an alternative cause of the PID. By closing arguments, the district court had completely barred the Trust's counsel from mentioning the word "chlamydia," and restricted counsel from referring either to his earlier cross examination of Dr. St. John on chlamydia or to Baker's medical records regarding the trichomonas that appeared in the 1972 Pap smear, both of which were already in evidence.

Prior to reaching a verdict, the jury asked the district judge several questions about the medical records in evidence that described the presence of trichomonas in 1972. These questions appeared to refer to the issues surrounding the Trust's alternative-causation argument based on chlamydia. Following deliberations, the jury returned a verdict for Baker on the issue of causation and awarded damages of $175,000.

The district court entered a judgment for $175,000 in damages and $365,802.73 in prejudgment interest. The Trust moved to modify the judgment by striking the prejudgment interest on the ground that the United States Bankruptcy Court for the Eastern District of Virginia had sole jurisdiction over whether prejudgment interest could be awarded to Dalkon Shield plaintiffs under the A.H. Robins Co., Inc. plan of reorganization. The motion was denied by the district court. This appeal followed.

In this court, the Trust argues that the district court committed reversible error in effectively excluding its entire alternative causation defense from trial by restricting or barring direct expert opinion testimony, by excluding scientific evidence, and by limiting cross examination of plaintiff's expert witnesses. The Trust also argues that the district court improperly awarded prejudgment interest. We agree on the first point and remand for a new trial; on the second point, Baker now is contending that the issue should be resolved in accordance with the decision in a related Fourth Circuit case.

The trial court has broad discretion in determining issues of admissibility of expert testimony and scientific evidence, see United States v. Shay, 57 F.3d 126, 132 (1st Cir.1995), as well as in ruling on specific questions regarding cross examination of witnesses, see Nickerson v. G.D. Searle & Co., 900 F.2d 412, 421 (1st Cir.1990). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court observed:

Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses.

Id. (Citations and internal quotations omitted.)

It is commonly said that a trial judge's decision regarding the admissibility of expert testimony will not be disturbed absent a clear abuse of discretion. See DaSilva v. American Brands, Inc., 845 F.2d 356, 361 (1st Cir.1988). This formulation is adequate to our case which involves judgments of balancing and degree as to relevance, prejudice and the like. It is useful to note, however, that admissibility of evidence issues can also turn on abstract questions of law, where review is de novo, see United States v. Omar, 104 F.3d 519, 522 (1st Cir.1997), or on findings by the judge of specific facts, where review is for clear error, see Mitchell v. United States, 141 F.3d 8, 17 (1st Cir.1998).

In a product liability action, the burden of proving causation rests on the plaintiff, but the defendant may--in addition to disputing the plaintiffs' affirmative showing--present evidence showing that some other cause accounts for the injury. Cf. Wilder v. Eberhart, 977 F.2d 673, 676 (1st Cir.1992...