Coursen v. A.H. Robins Co., Inc.

• Citation: 764 F.2d 1329
• Decision Date: 03 July 1985
• Docket Number: Nos. 84-3854,s. 84-3854
• Parties: 18 Fed. R. Evid. Serv. 428, Prod.Liab.Rep.(CCH)P 10,840 Sarah COURSEN and Katherine Cook, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant-Appellee. Terri JOHNSON, Gayle McCann, Laurie Jo Franz, Debbie Rohn, and Pamela Van Duyn, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant-Appellee. to 84-3861.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1329

764 F.2d 1329

18 Fed. R. Evid. Serv. 428, Prod.Liab.Rep.(CCH)P 10,840

Sarah COURSEN and Katherine Cook, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation,

Defendant-Appellee.

Terri JOHNSON, Gayle McCann, Laurie Jo Franz, Debbie Rohn, and Pamela Van Duyn, Plaintiffs-Appellants, v. A.H. ROBINS COMPANY, INC., a Virginia corporation, Defendant-Appellee.

Nos. 84-3854 to 84-3861.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 18, 1985.

Decided July 3, 1985.

Jacob Tanzer, Ball, Janik & Novack, Portland, Or., for plaintiffs-appellants.

Carol A. Hewitt, Lindsay, Hart, Neil & Weigler, Portland, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and SKOPIL, Circuit Judges, and VUKASIN, ^* District Judge.

SKOPIL, Circuit Judge:

These consolidated appeals are from judgments in actions for compensatory and punitive damages instituted by plaintiffs against defendant, A.H. Robins Co., Inc. ("Robins"), manufacturer of a contraceptive intrauterine device known as the Dalkon Shield. Plaintiffs raise a number of evidentiary and other legal issues on appeal. For reasons stated below, we affirm in part, reverse in part, and remand in part.

FACTS AND PROCEEDINGS BELOW

Each plaintiff maintained that she had been injured by use of the Dalkon Shield by contracting pelvic inflammatory disease ("PID"). PID is a disease caused when harmful bacteria from the vagina enter the uterus.

Other plaintiffs in related proceedings not at issue here allege they had been damaged by becoming pregnant while using the Dalkon Shield and subsequently undergoing elective abortions. Gray v. A.H. Robins, Inc., No. 80-6334-E (D.Or.1980). In an early evidentiary ruling, the district court held that where plaintiffs' claims were limited to injuries associated with pregnancy, any testimony regarding other possible injuries to, or other side effects suffered by, users of the Dalkon Shield would be inadmissible as irrelevant, prejudicial, collateral, and potentially confusing. Steimetz v. A.H. Robins Co., Inc., No. 75-716 (D.Or.1975). Consistent with that holding, the court refused to admit evidence of pregnancy rates in PID cases. The parties stipulated that when discussing the efficacy of the Dalkon Shield, both parties would treat it "as if it were no better and no worse than other IUDs in this regard."

All pregnancy-related cases were eventually settled or dismissed. The district court ordered consolidation of the remaining PID cases for trial. Under the district court's consolidation order, general liability issues common to the PID plaintiffs on the In November 1983, prior to the trial of the liability issues, plaintiffs filed motions in limine to exclude evidence regarding sexual histories. The trial judge denied plaintiffs' motions. The right to consider such evidence on a case-by-case basis was reserved.

theories of fraud, negligence, and strict liability were tried first. Individual causation and damage issues were tried thereafter in seriatim fashion before the same jury. The district court also bifurcated the issue of punitive damages for consideration when all individual causation and compensatory damage trials had been completed.

The jury found that the Dalkon Shield was dangerously defective, but that plaintiffs had failed to prove that Robins was negligent or had committed fraud. ¹

Individual claims were tried before the same jury. In the seven individual cases adjudicated by the jury, three ended in plaintiffs' verdicts: Van Duyn ($147,500), Kuhnhenn ($273,000), and Johnson ($175,000); and three ended in defense verdicts: McCann, Franz, and Rohl. The jury declined to award Van Duyn's husband, James Van Duyn, damages for loss of consortium.

The claims of appellants Cook and Coursen were scheduled for trial. Before their trials, Cook and Coursen filed renewed motions in limine to exclude evidence of sexual activity. Consistent with its prior ruling, the district court declined to exclude sexual activity evidence, and indicated that defendant was entitled to offer to prove that plaintiffs' infections were caused by sexual activity.

After denial of their renewed motions, Cook and Coursen moved for and were granted what they characterized as involuntary dismissals with prejudice. Upon defendant's motion and following a hearing, an order correcting the minute entry and recharacterizing the dismissals as voluntary was issued. Judgments were entered accordingly. Cook and Coursen filed a notice of appeal.

Following resolution of all individual claims, the district court granted Robins' motion to strike plaintiffs' prayers for punitive damages. Because the jury found plaintiffs had failed to prove negligence, the court concluded that defendant could not be guilty of "wanton misconduct," a prerequisite to the recovery of punitive damages.

Pursuant to Fed.R.App.P. 42(b), plaintiff Kuhnhenn and defendant Robins have stipulated to the dismissal of her appeal. An order has been entered. Except for James Van Duyn, all other plaintiffs appeal. Pamela Van Duyn appeals only from the denial of punitive damages. McCann, Franz, Johnson, and Rohl appeal from the judgment in its entirety. They do not challenge the verdict's finding of strict liability. Robins cross-appeals in the Van Duyn case arguing that if reversal is ordered by this court, the reversal is applicable to all plaintiffs and all claims. Rohl also claims error in the denial of a continuance in her individual trial.

ISSUES

1. Did the district court err in excluding evidence of pregnancy rates associated with the Dalkon Shield?

2. Did the district court err in striking plaintiffs' prayers for punitive damages?

3. Did the district court err in instructing the jury on the unavoidable danger defense?

4. Did the district court err in admitting evidence of plaintiffs' sexual histories?

5. Did the district court err in rescheduling the Rohl trial?

6. Are the district court's ruling on the Cook and Coursen motions in limine reviewable where appellants' cases

were dismissed before trial based on the perceived prejudicial effect of those rulings?

DISCUSSION

1. Pregnancy Rates Evidence.

Appellants maintain that the district court erred in excluding relevant pregnancy rates evidence. Pregnancy rates evidence refers to two types of evidence--evidence of the actual effectiveness of the Dalkon Shield and evidence that Robins in promotional literature frequently misrepresented the effectiveness of the Dalkon Shield.

Evidentiary decisions are reviewed for an abuse of discretion. Liew v. Official Receiver and Liquidator, 685 F.2d 1192, 1195 (9th Cir.1982); Hill v. Rolleri, 615 F.2d 886, 890 (9th Cir.1980). The admission or exclusion of evidence under Fed.R.Evid. 403 or 404 is reversible only for a clear abuse of discretion. See United States v. Diggs, 649 F.2d 731, 737 (9th Cir.) (Rule 403 and 404), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 387 (1981); United States v. Ford, 632 F.2d 1354, 1375 (9th Cir.1980) (Rule 404), rejected on other grounds, United States v. DeBright, 730 F.2d 1255 (9th Cir.1984) (en banc); Longenecker v. General Motors Corp., 594 F.2d 1283, 1286 (9th Cir.1979) (Rule 403). Evidentiary errors will not be reversed absent some resulting prejudice. Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983); see also Hill, 615 F.2d at 890 (evidentiary error is a basis for reversal if the error affected "any substantial rights" of a party).

A. Actual Effectiveness Rates

Appellants contend that evidence of actual pregnancy rates associated with the Dalkon Shield should have been admitted to show the benefits of the product did not outweigh its dangers. Because appellants failed to make an offer of proof, Robins maintains that the exclusion of such evidence is not reviewable. Alternatively it claims the district court's exclusion of such evidence was not erroneous.

A district court's exclusion of evidence is reviewable on appeal only if "the substance of the evidence was made known to the court by offer or was apparent from the context in which the questions were asked." Fed.R.Evid. 103(a)(2). Here, while appellants made no formal offer of proof, they did apprise the judge of the purpose of the evidence. The evidence of pregnancy rates associated with the Dalkon Shield was offered so "the jury would not be left with the mistaken impression that the Shield's benefits outweighed its risks." The trial judge was sufficiently familiar with the multiple theories of liability and the substance of the pregnancy rates evidence to make an informed evidentiary decision. See United States v. Sims, 617 F.2d 1371, 1376 n. 4 (9th Cir.1980) (exclusion of evidence reviewable although no offer of proof). See also United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (despite the absence of formal offer of proof, the exclusion of evidence is reviewable), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Nevitt, 563 F.2d 406, 409 (9th Cir.1977) (no offer of proof required where court was "fully aware of the substance of the excluded evidence"), cert. denied, 444 U.S. 847, 100 S.Ct. 95, 62 L.Ed.2d 61 (1979). We do not believe Fed.R.Evid. 103(a)(2) bars our review of this evidentiary issue.

Evidence of pregnancy rates associated with the Dalkon Shield is probative of strict liability and negligence issues. In determining whether a product is defective, it is always necessary to balance a product's utility against any harm it may cause. Phillips v. Kimwood Machine Co., 269 Or. 485, 499, 525 P.2d 1033, 1039 (1974); Legislative Codification of Strict Products Liability Law in Oregon, 59 Or.L.Rev. 363, 370-71 (1980). Similarly, in evaluating the reasonableness of defendant's conduct in a negligence action, the jury is entitled to weigh the usefulness of a product against its harm. Phillips, 269 Or. at 499, 525 P.2d...