Krist v. Eli Lilly and Co., 89-1376

Citation897 F.2d 293
Decision Date13 March 1990
Docket NumberNo. 89-1376,89-1376
PartiesPenelope KRIST, Plaintiff-Appellant, v. ELI LILLY AND COMPANY, Defendant-Appellee, v. ABBOTT LABORATORIES, et al., Third-Party Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Daniel S. Grable, Rummel, Daly & Grable, Oconomowoc, Wis., for plaintiff-appellant.

John Swietlik, Kasdorf, Lewis & Swietlik, Milwaukee, Wis., David W. Brooks, Shook, Hardy & Bacon, Kansas City, Mo., for Eli Lilly & Co.

Harold Laufer, Davis & Kuelthau, Milwaukee, Wis., for Abbott Laboratories.

Donald Carlson, Frank Steeves, Riordan, Crivello, Carlson & Mentkowski, Milwaukee, Wis., for Premo Pharmaceutical Labs.

Robert W. Connell, Connell & Connell, Milwaukee, Wis., for Cooper Laboratories and Boyle & Co.

John H. Schaller, Francis Hughes, Fox, Carpenter, O'Neill & Shannon, Milwaukee, Wis., for Dorsey Laboratories.

Donald R. Peterson, Peterson, Johnson & Murray and Robert W. Connell, Connell & Connell, Milwaukee, Wis., for Boyle & Co.

Frank Doster, Hodan & Doster, Milwaukee, Wis., for E.R. Squibb & Sons.

Lee J. Geronime, Michael, Best & Friedrich, Milwaukee, Wis., for Kremers-Urban Co.

Before POSNER and EASTERBROOK, Circuit Judges, and DUMBAULD, Senior District Judge. *

POSNER, Circuit Judge.

In the late 1940s, doctors began prescribing DES (diethylstilbestrol, a synthetic estrogen developed in England in the 1930s) to prevent miscarriages. Years later it was discovered that DES could injure the reproductive system of the daughters of women who had taken it. Penelope Krist claims to be one of those injured daughters. She brought this tort suit in 1987 against Eli Lilly and Company, which along with a number of other drug companies had in 1947, the year before Penelope Krist's mother became pregnant, begun making and selling DES for the prevention of miscarriages. Under Wisconsin law, which all agree governs the substantive issues in this diversity suit, all that Penelope Krist had to prove in order to recover damages from Lilly was that her mother had taken DES when pregnant with Penelope (which is conceded for purposes of summary judgment); that the DES caused the injury for which she sues (also conceded for those purposes); and that Lilly had at the time when Penelope's mother was pregnant with her "produced or marketed the type (e.g., color, shape, markings, size, or other identifiable characteristics) of DES taken by the plaintiff's mother." Collins v. Eli Lilly Co., 116 Wis.2d 166, 193, 342 N.W.2d 37, 50 (1984) (emphasis in original). It is on this last element that Lilly took its stand and persuaded the district court, on the eve of trial, to grant summary judgment and dismiss the suit.

The medical records of Penelope Krist's mother from 1948 do not indicate the brand of DES she took, but the mother (who is 68 years old) testified at her deposition in 1987 about the type of DES she took. She recalled taking, several times a day for at least six straight weeks, small, shiny, smooth, coated, red pills shaped "much like an M & M candy" (that is, convex rather than flat like an aspirin), only smaller--approximately half the size of an aspirin. She testified that in 1952 she had had a total hysterectomy, after which her doctor had prescribed DES to replace the estrogen lost by the removal of her ovaries, and that she had told her husband that the pills she received in 1952 were the same kind that she had taken during her pregnancy in 1948. When this suit was filed she was still taking the pills prescribed back in 1952--and the pills she was taking were made by Lilly. If they were the same pills she had been taking not only in 1952 but also in 1948, then probably those pills were made by Lilly too; it is on this theory that the plaintiff's counsel named Lilly as the defendant.

After the mother had signed her deposition but before the statute of limitations for suing other manufacturers of DES had expired, Lilly's counsel informed the plaintiff's counsel that Lilly had not manufactured red DES pills in 1948. Lilly later submitted evidence to that effect (and also to the effect that it had not manufactured coated DES pills in 1948, as she had also testified). The plaintiff does not contest this evidence, yet she failed either to change her theory of the case (as she might have done, we shall see) or to join any additional defendants; her counsel told us that it would have been beyond the plaintiff's financial means to do so. It is now too late for her to join additional defendants. Although Lilly brought additional drug manufacturers into the case as third-party defendants, to share the burden of liability should the plaintiff win a judgment against it, Collins v. Eli Lilly Co., supra, 116 Wis.2d at 195, 342 N.W.2d at 51, the plaintiff concedes that she cannot go after them directly: Lilly's decision to sue them did not waive their statute of limitations defense against the plaintiff's claim.

The district court granted Lilly's renewed motion for summary judgment when, on the morning of trial, the plaintiff's counsel stated that he intended to call only one witness, the plaintiff's mother, and added--with admirable candor--that she would testify that the pills she had taken while pregnant with Penelope were small, round, red pills, just as described in her deposition.

The deposition testimony concerning the color and other properties of the pills that Penelope's mother took during the pregnancy was given without hesitation, qualification, equivocation, uncertainty, misgiving. She expressed no doubt about the accuracy of her recollection; so far as we can glean from the transcript of the deposition, she testified with serene confidence. There are no contradictions, either within the deposition itself or between the deposition and any other evidence in the record, concerning the color of the pills. Lilly had begun manufacturing red DES pills after 1948 but before the prescription issued to the plaintiff's mother in 1952; and while if no drug company had been manufacturing red DES pills in 1948 it would be plain that the mother's recollection was faulty, no such evidence was presented. (On the contrary, the record contains a letter from McNeil Laboratories indicating that it manufactured red DES pills in the period when Penelope Krist's mother was pregnant with her, although it is uncertain whether the McNeil pill was distributed in the area where she lived.) If the mother's testimony is believed--and the plaintiff's counsel has suggested no reason not to believe it except that it concerned events almost forty years in the past--then it is plain that Lilly did not cause the injury of which Penelope Krist complains.

In resisting summary judgment, the plaintiff's counsel argues that he would have asked the jury to disbelieve the mother's testimony about the color (and coating) of the pills and that the jury might have done so. We are to evaluate the argument by asking whether, if the evidence at trial turned out to be the same as the pretrial evidence--and thus if the mother's testimony would be the same at trial as the testimony in her deposition--the judge would be required to grant a directed verdict for the defendant. If so, the defendant was entitled to summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). The test for directed verdict, in turn, is whether a rational jury could have brought in a verdict for the nonmovant--the plaintiff in this case. Kozlowski v. John E. Smith's Sons Co., 87 Wis.2d 882, 898, 275 N.W.2d 915, 922 (1979). (We use the Wisconsin test because in a diversity case the test for directed verdict or judgment notwithstanding the verdict is supplied by state law. Horton v. Miller Chemical Co., 776 F.2d 1351, 1355 (7th Cir.1985).) So, to state the question before us as precisely as possible, it is whether a rational jury deciding the case on the identical record that was before the judge when Lilly moved for directed verdict could have brought in a verdict for the plaintiff.

The jury would be confronted with a case in which a witness friendly to the plaintiff (this is an understatement) testified positively that the pills she took could not have been made by the defendant and in which irrefragable evidence established that those pills could have been made by someone other than the defendant. The only evidence in the record, therefore, would be evidence that Lilly was not the source of the plaintiff's injury. Lapse of time can distort recollection, but it does not always have that effect and the plaintiff has made no offer to prove that it usually does. The confidence and apparent completeness of the mother's recollection do not assure its accuracy, but neither do they provide leverage for an argument that it is inaccurate.

A party does not vouch for the truth of every statement of the witnesses he calls, even of the friendly witnesses. Fed.R.Evid. 608 and Note of Advisory Committee on Proposed Rule; Guenther v. Armstrong Rubber Co., 406 F.2d 1315, 1317-18 (3d Cir.1969). But with an exception that the plaintiff's counsel might have tried to fit this case within--but did not try--Wisconsin law requires the plaintiff in a DES case to prove that the defendant made the type of pill that the plaintiff's mother took while pregnant with the plaintiff, and Penelope Krist's mother is her only witness. How is the plaintiff to carry her burden of proof if the jury disbelieves her only witness? In theory the jury might disbelieve the mother's testimony about the color and coating of the pills but believe her testimony about their other attributes. But what sense would that make? The deposition indicates no greater uncertainty about color or coating than about other features of the pill--on the contrary, the color is the feature most stressed in her testimony. How could the jury rationally conclude that she had gotten the color and coating wrong but the...

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