Plummer v. Abbott Laboratories

• Decision Date: 01 July 1983
• Docket Number: Civ. A. No. 80-0556-S.
• Citation: 568 F. Supp. 920
• Parties: Gladys PLUMMER, et al., Plaintiffs, v. ABBOTT LABORATORIES, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

568 F. Supp. 920

Gladys PLUMMER, et al., Plaintiffs, v. ABBOTT LABORATORIES, et al., Defendants.

Civ. A. No. 80-0556-S.

United States District Court, D. Rhode Island.

July 1, 1983.

Decof & Grimm by Leonard Decof, John S. Foley, Mark B. Decof, Peter J. Cerilli, Providence, R.I., for plaintiffs.

Rice, Dolan, Kiernan & Kershaw by John F. Dolan, Providence, R.I., for Burroughs Wellcome.

Hanson, Curran & Parks by Wm. A. Curran, Dennis J. McCarten, Providence, R.I., Robt. L. Dickson, Santa Monica, Cal., for E.L. Squibb.

Goodwin, Proctor & Hoar by Marshall Simonds, Anthony Feeherry and Martha Coakley, Boston, Mass., Edwards & Angell by Richard A. Borod, Providence, R.I., for Eli Lilly & Co.

Roberts, Carroll, Feldstein & Tucker by Bruce G. Tucker, Providence, R.I., for Upjohn.

E. Erik Lund, David J. Hatem, Boston, Mass., James J. McKenna, Providence, R.I., for Schering.

Gunning, LaFazia & Gnys by Edward L. Gnys and R. Alan LaFazia, Providence, R.I., for Abbott.

Hinckley & Allen by Thomas D. Gidley, Providence, R.I., for Merck.

OPINION AND ORDER

SELYA, District Judge.

This is a products liability action initiated by 51 individual plaintiffs against 7 manufacturers of the drug diethylstilbestrol ("DES"). Jurisdiction is based on 28 U.S.C. § 1332. Of the original plaintiffs, 48 remain in the case; 21 are women who, during their respective pregnancies, took DES on the advice of their physicians. These women, in the fourth amended complaint, complain of emotional distress arising out of increased fear of contracting cancer and out of heightened concern for the current or future medical problems of their respective daughters. After extensive discovery, all defendants now seek summary judgment against 16 of the 21 aforementioned women (these targets of the summary judgment initiative being identified in the margin).¹ The gravamen of the defendants' motion is that Rhode Island does not and would not recognize a cause of action for negligent infliction of emotional harm in the absence of physical manifestations of such distress. The targeted plaintiffs have objected. The matter has been fulsomely briefed; and at a chambers conference held on May 9, 1983, all parties waived oral argument and declined the court's invitation to consider certification of the questions raised to the state supreme court.

The facts are not in dispute and can be summarized succinctly.² The targeted plaintiffs ingested DES during their respective pregnancies; they do not contend, however, that they have sustained any physical harm or that they have manifested physical sequelae of any emotional distress. The targeted plaintiffs claim as injuries only the following: (i) increased risk of contracting cancer and concomitant mental strain as a side effect of trepidation associated therewith; and/or (ii) mental distress ancillary to fear and concern as to their children's current and possible future medical problems.

This court, sitting in diversity jurisdiction, must determine whether the enumerated facts combine to state a cause of action for negligent infliction of emotional distress under Rhode Island law. Scuncio Motors, Inc. v. Subaru of New England, Inc., 555 F.Supp. 1121, 1124 (D.R.I.1982). Since there are no Rhode Island cases directly on point, it is this court's task to vaticinate what the decision of the Rhode Island Supreme Court would be were that court faced with the issue. Id. See also Nature Conservancy v. Machipongo Club, Inc., 579 F.2d 873, 875 (4th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 724, 58 L.Ed.2d 706 (1978); Oresman v. G.D. Searle & Co., 321 F.Supp. 449, 453 (D.R.I.1971). In undertaking this forecast, the court must look to relevant, i.e., analogous, state court decisions, 19 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 4507, at 91 (1982), and may assay sister state adjudications of the issue. Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir.1972). Once the law is divined in accordance with these principles, the court must apply conventional summary judgment standards to the pending Rule 56 motion; and must satisfy itself as to whether or not the movants have demonstrated entitlement to judgment as a matter of law. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); United Nuclear Corp. v. Cannon, 553 F.Supp. 1220, 1226 (D.R.I.1982). The court is persuaded that this case is ripe for brevis disposition as to the targeted plaintiffs.

The defendants' attack is on two fronts. The first salvo contends that the alleged presence of a heightened risk of contracting cancer does not, in and of itself, support or state a viable cause of action under Rhode Island law. This volley is well-placed. It is an abecedarian principle of tort law that an individual must be injured to recover for the negligent acts of another. See, e.g., Mullaney v. Goldman, 398 A.2d 1133, 1136 (R.I.1979); Phelps v. Burrillville Racing Association, 73 R.I. 84, 53 A.2d 753, 754 (1947). With this thesis in mind, the court in Mink v. University of Chicago, 460 F.Supp. 713 (N.D.Ill.1978) rejected a claim indistinguishable from that advanced by the plaintiffs in the instant case. Id. at 719. The court reasoned that the possibility that an individual may, because of the ingestion of certain drugs, have acquired a greater risk of contracting cancer does not per se constitute injury for purposes of tort law. Id. It cannot seriously be doubted that, given Rhode Island's unswerving adherence to the underlying principle, the Rhode Island Supreme Court, if faced with the issue, would follow the holding of Mink. See also Sioux City Community School District v. International Telephone & Telegraph Corp., 461 F.Supp. 662, 664-65 (N.D.Iowa 1978); Rheingold v. E.R. Squibb & Sons, No. 74 Civ. 3420 (S.D.N.Y. 1975).³ Therefore, this court concludes that only the claim for psychic harm alleges a fact pattern which, under Rhode Island law, requires in-depth perscrutation.

The defendants' second fusillade is aimed at establishing that the holding in D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975) ("D'Ambra III") forecloses recovery for negligent infliction of emotional distress in the absence of some corporal manifestation of such affliction. The targeted plaintiffs counter with a bi-dimensional riposte.

First, the plaintiffs reason that since Rhode Island allows, as an element of damages, recovery for pain and suffering, it necessarily follows that the state courts would permit recovery for a cause of action solely based on anxiety and dread without the need for a parallel showing of objective symptomatology. This contention is devoid of merit.

There is a vast gulf between sanctioning the use of an element of intangible damages arising ancillary to physical harm to compensate an individual for injuries resulting from the commission of an admittedly tortious action and the imposition of tort liability on a party ab initio for the negligent infliction of dread and anxiety alone. Tort damages are awarded in order fully and adequately to compensate an individual for injuries sustained. Auchincloss v. Halloran Construction Co., 105 R.I. 565, 253 A.2d 622, 625 (1969); DeSpirito v. Bristol County Water Co., 102 R.I. 50, 227 A.2d 782, 784 (1967). Thus, the underlying basis for such damages is the premise that the individual was injured in contemplation of law. The concept of injury, however, at least in the area of tort law, involves the breach of some duty and the imposition of liability for that breach. See Phelps v. Burrillville Racing Association, 53 A.2d at 754. Therefore, the plaintiffs' argument in this regard begs the fundamental question of whether liability should be imposed for the actions of the defendants. To allow this suit to go forward based on nothing more than the hypothesis that pain and suffering is an element of recovery in a proper case would be judicially to embrace an exquisite example of hoisting oneself by one's own bootstraps.

The second prong of the demurrer to the defendants' motion strikes to the heart of the matter and directly addresses the issue of imposing liability for negligent infliction of emotional distress. The targeted plaintiffs contend that Rhode Island, as a leader in the development of neoteric tort law, would follow what the plaintiffs perceive to be a newly-emergent trend permitting recovery for careless infliction of emotional strain notwithstanding the absence of corresponding physical manifestations thereof.

Since the seminal case in any reasoned discussion of the issue at bar is D'Ambra III, an exegesis of the history of that litigation is helpful. Suit was originally brought in this court under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), for the wrongful death of Gregory D'Ambra, (a minor), arising out of a vehicular accident, an event witnessed by Gregory's mother, Constance D'Ambra. The government was adjudged negligent, and both the decedent and Mrs. D'Ambra were found to have been in the exercise of due care. D'Ambra v. United States, C.A. No. 4545 (D.R.I., March 17, 1972) (Pettine, J.), affirmed 481 F.2d 14 (1st Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 592, 38 L.Ed.2d 482 (1973) ("D'Ambra I"). The district court then turned to a companion action brought for the shock suffered by Mrs. D'Ambra in consequence of witnessing the fatality. The government moved to dismiss this claim on the ground that Rhode Island would not recognize a cause of action for negligent infliction of emotional harm when the plaintiff had not, herself, been within the zone of danger (a fact established in D'Ambra I). The district court denied the motion in a thoughtful and well-reasoned written opinion, D'Ambra v. United States, 354 F.Supp. 810 (D.R.I.1973) ("D'Ambra II") and the defendant appealed. The First Circuit then certified the following question to the Rhode Island Supreme Court:

May a non-negligent plaintiff mother,

...