Shadburne v. Dalkon Shield Claimants Trust
| Decision Date | 19 May 1994 |
| Docket Number | No. K-83-160.,K-83-160. |
| Citation | 851 F. Supp. 712 |
| Parties | Susan SHADBURNE v. DALKON SHIELD CLAIMANTS TRUST. |
| Court | U.S. District Court — District of Maryland |
Michael A. Pretl and H. Robert Erwin, Pretl & Erwin, P.A., Baltimore, MD, for plaintiff.
Paul F. Strain, Elizabeth C. Honeywell and Di S. Sangiamo, Venable, Baetjer & Howard, Baltimore, MD, for defendant.
On March 1, 1974, plaintiff, Susan Shadburne, received a Dalkon Shield intrauterine contraceptive which was manufactured and sold by A.H. Robins, Inc. She filed suit in this Court on January 20, 1983, alleging that she had been injured by the use of the Dalkon Shield. At that latter date, the Oregon statute of repose, ORS 30.905, provided that "a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption." On December 20, 1984, this Court granted Robins' motion for summary judgment with regard to Shadburne, holding that because plaintiff did not file suit within eight years of receiving her Dalkon Shield, her suit was barred under the Oregon statute of repose. In re Dalkon Shield Cases, 599 F.Supp. 1351, 1356-57 (D.Md.1984). The decision of Judge Northrop in those Dalkon Shield Cases was largely based on his earlier opinion in Pottratz v. Davis, 588 F.Supp. 949, 953 (D.Md. 1984), in which he held that "the Oregon statute is an ultimate statute of repose which is part of the substantive law of Oregon." Because Maryland applies the substantive law of the state in which a wrong occurs, and because the Oregon statute of repose is substantive, the court in Pottratz determined that under this Court's choice-of-law principles, the Oregon statute of repose governed a Dalkon Shield claim which arose in Oregon.
Shadburne, along with several other plaintiffs, appealed Judge Northrop's ruling in Dalkon Shield Cases to the United States Court of Appeals for the Fourth Circuit. On August 21, 1985, while that case was on appeal in that Court, Robins filed a petition for bankruptcy in the United States District Court for the Eastern District of Virginia, thus staying all of the Dalkon Shield litigation. During the continued pendency of Ms. Shadburne's appeal, Oregon enacted a statute providing that the Oregon State of Repose "shall not apply to a product liability civil action against a manufacturer of an intrauterine device, resulting in IUD-related injuries." Or.Laws 1989, c. 642, § 2 ("Special IUD Statute"). Instead, the statute provided that a plaintiff must file suit against an IUD manufacturer "not later than two years after the date on which the plaintiff discovered, or, in the exercise of reasonable care, should have discovered" her injury. § 3. The Act further provided that it applied to "any product liability civil action against a manufacturer of an intrauterine device currently pending in the trial court or on appeal, in which the defendant manufacturer has raised the statute of limitations or repose as a defense." § 4.1
In reliance upon the enactment of the Special IUD Statute, several Oregon claimants commenced an adversary proceeding against Robins in the aforementioned Bankruptcy Court. As stated in a Consent Order submitted to that Bankruptcy Court, the claimants were concerned that "any rights afforded them by the Oregon Special IUD Statute ... not be lost due to the pendency of the automatic stay." On May 5, 1989, the said Bankruptcy Court signed the aforementioned Consent Order which provided: "The periods set forth in the Oregon Special IUD Statute for filing suit against Robins or the Trust on Dalkon Shield-related personal injury claims, if legal and applicable, are tolled until thirty days after expiration or termination of the automatic stay." The Order also stated:
"The Court expressly reserves judgment on any and all other issues arising from the referenced Oregon statutes or which are and could have been raised in this adversary proceeding including, without limitation, issues relating to the constitutionality, validity, or enforceability of the Oregon Special IUD Statute or its retroactive effect...."
On December 13, 1989, this Court entered an order administratively closing all Dalkon Shield claims then pending, subject to a claimant's motion for reinstatement. Defendant emerged from bankruptcy on December 15, 1989.2 On October 23, 1991, the Fourth Circuit dismissed the Oregon claimants' appeal to which Shadburne had been a party because one of the co-appellants had settled her claim. Ms. Shadburne completed the Claims Resolution process without settling, and on October 21, 1992, the Bankruptcy Court certified plaintiff to proceed with litigation in this case. This Court granted plaintiff's motion to reinstate this case on October 30, 1992.
The Trust filed a motion for judgment on the pleadings on June 25, 1992, challenging the constitutionality of the Special IUD statute under the federal and Oregon constitutions. At a motions hearing held in chambers on December 15, 1993, this Court raised the question of whether it lacked jurisdiction over this case in the light of the Fourth Circuit's dismissal of the Oregon claimants' appeal. In a Memorandum and Order dated December 27, 1993, this Court stayed all proceedings in this case until counsel advised this Court concerning future presentation of that issue to the Fourth Circuit. On February 25, 1994, the Fourth Circuit determined that Ms. Shadburne's appeal had been dismissed in error, recalled its mandate, and remanded this case back to this Court, insofar as it relates to Ms. Shadburne. Accordingly, this Court must now decide defendant's motion for judgment on the pleadings, in connection with the issue of whether the Oregon Special IUD Statute, which expressly applies retroactively to revive claims extinguished by the prior Oregon Statute of Repose, is constitutional under the federal Constitution.3
Although the constitutional impediments to expressly retroactive legislation are "of limited scope," such legislation will not pass constitutional muster if it runs afoul of the Fourteenth Amendment by depriving a person of life, liberty, or property without due process of law. See Landgraf v. USI Film Products, ___ U.S. ___, ___, 114 S.Ct. 1483, 1497-99, 128 L.Ed.2d 229 (1994). It is undisputed that a legislature may in certain instances retroactively enlarge a statute of limitations without violating the Constitution. International Union of Electrical, etc. v. Robbins & Myers, Inc., 429 U.S. 229, 243, 97 S.Ct. 441, 450, 50 L.Ed.2d 427 (1976); Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311-12, 65 S.Ct. 1137, 1140-41, 89 L.Ed. 1628 (1945); Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885).4 Retroactive enlargement in such a situation is unproblematic because "statutes of limitation go to matters of remedy, not to destruction of fundamental rights." Chase, 325 U.S. at 314, 65 S.Ct. at 1142. However, "where a statute in creating a liability also puts a period to its existence, a retroactive extension of the period after its expiration amounts to a taking of property without due process of law." Id., at 311 n. 8, 65 S.Ct. at 1141 n. 8 (citing William Danzer & Co. v. Gulf & Ship Island R.R. Co., 268 U.S. 633, 636-37, 45 S.Ct. 612, 613, 69 L.Ed. 1126 (1925)). In Danzer, the Supreme Court refused to permit a plaintiff who failed to file timely under a two-year federal limitations period to take advantage of a later statute permitting suspension of the timeliness requirement in certain circumstances. The original statute had been previously determined, in other cases, to constitute not only a bar to a remedy, but also a destruction of defendant's liability to plaintiff. 268 U.S. at 636, 45 S.Ct. at 613. Therefore, upon expiration of the two-year period for filing, "it was as if liability had never existed." Id. Thus, by virtue of Chase and Danzer, the Supreme Court has distinguished between retroactive enlargement of statutes which effect only remedy and those which effect liability, upholding the former while refusing to uphold the latter.
As both parties agree, the statute which has been retroactively enlarged in this case, ORS 30.905, is a statute of repose. Unlike a statute of limitations which generally runs from the time a cause of action accrues, the statute of repose in this case runs from the date the product was first purchased. As Judge Northrop explained in Pottratz, "this statute does not operate to bar a remedy; it prevents a cause of action from ever arising." 588 F.Supp. at 952. In other words, injury which occurs more than eight years after the product is purchased, " " Id. (). The policies identified by Judge Northrop which underlay a statute of repose are "first, that there is a lack of reliability and availability of evidence after a lapse of a long period time and secondly, that people are entitled to plan their affairs with certainty, free from the disruptive burden of protracted and unknown potential liability." Id. at 953 (citing Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974)).
The Fourth Circuit has explained the differences between statutes of limitation, which are procedural, and statutes of repose, which are substantive.
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