Shields v. Eli Lilly and Co.

Decision Date16 February 1990
Docket NumberNo. 89-7015,89-7015
Citation895 F.2d 1463
Parties, 58 USLW 2524, Prod.Liab.Rep.(CCH)P 12,374 Amy SHIELDS, Appellant, v. ELI LILLY AND COMPANY, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Aaron M. Levine, with whom Brandon J. Levine and Sybil Shainwald were on the brief, for appellant.

Gail L. Heriot, with whom James A. Hourihan, Marshall Simonds, and Loretta M. Smith were on the brief, for appellee.

Before: MIKVA and RUTH B. GINSBURG, Circuit Judges, and ROBINSON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellant, Amy Shields, challenges a district court decision granting summary judgment for appellee, Eli Lilly and Company ("Lilly"). Shields filed a tort claim against Lilly alleging that she contracted cancer as a result of having been exposed in utero to Lilly's product, diethylstilbestrol ("DES"). The trial court granted Lilly's motion for summary judgment on the ground that Shields had presented no conclusive proof that she had been exposed to DES. We have reviewed the district court's determination de novo, and because we do not find it to be consistent with controlling precedent or the facts presented, we reverse.

BACKGROUND

Amy Shields filed suit in federal district court against Eli Lilly and Company, alleging that she developed clear-cell vaginal cancer as a result of being exposed to DES while she was a fetus. DES is a medication that was manufactured by Lilly for pregnant women to reduce the risk of miscarriage. The FDA banned DES in the 1970s after overwhelming evidence linked its use to the development of clear-cell vaginal cancer in women whose mothers received the drug during pregnancy. See Eli Lilly & Co. v. Home Insurance Co., 764 F.2d 876 (D.C.Cir.1985).

Following discovery, Lilly filed a motion for summary judgment arguing that plaintiff could not prove that she had been exposed to DES. In response, appellant acknowledged that she did not have any direct evidence of exposure to DES. Her mother received medication during the course of her pregnancy but was never told its name. The doctor who prescribed this medication is deceased, and both his prescription records and those of the pharmacy that dispensed the medication have been lost. Nevertheless, appellant proposed to identify the medication as DES, based upon her mother's physical description of the medication, the circumstances under which it was prescribed, and the professional practice of the doctor who prescribed the medication.

In the summary judgment proceeding, appellant introduced medical records which showed that her mother, Mrs. Shields, experienced a type of bleeding ("staining") while pregnant with appellant; this condition Dr. Sinclair's nurse, Mrs. Clifford, testified that the doctor sometimes prescribed medication in pill form for patients who were staining or in danger of aborting, and that when he did so, his practice was to prescribe either DES or progesterone. Appellant presented the affidavit of Dr. Linwood Tice, an expert in pharmaceutical history, who stated that although DES came in the form of small red pills, no progesterone commonly and ordinarily on the market in the 1950s met this description.

is typically associated with miscarriages. Mrs. Shields testified that when bedrest did not stop the staining, her physician, Dr. Sinclair, prescribed medication for her. Although Mrs. Shields could not identify the drug by name, she recalled that it came in a small, red pill.

Finally, appellant introduced the records of several doctors who had examined her. The first examination took place nine years before appellant was ever diagnosed as having cancer. The attending physician, Dr. Isvan Nyrjesy, detected some irregularities in her uterus and on this basis concluded that she had probably been exposed to DES. The following year, appellant was examined by another doctor, Dr. Donald Meek, who also concluded that she had probably been exposed to DES. In 1986, Shields was diagnosed as having "clear cell carcinoma of the vagina," which her doctor observed was accompanied by "typical DES-associated changes." Appellant's tissue samples were submitted to Dr. John Shane, who stated in his affidavit that "such lesions do not occur in the absence of DES exposure ... and do not appear in the absence of DES exposure to a statistical certainty of 97% to 99.7%."

After considering this evidence, the trial court concluded that appellant had not carried her burden of showing sufficient evidence to prove exposure at trial. Accordingly, it granted the summary judgment motion. Appellant challenges this conclusion on the grounds that the trial court imposed an unduly high standard of proof and that, applying the appropriate standard, her offer of proof was sufficient to withstand summary judgment.

I STANDARD FOR SUMMARY JUDGMENT

A court may dispose of a case on summary judgment before trial only where there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The standard test for summary judgment is "whether a fair-minded jury could return a verdict for the [nonmovant] on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Before trial, a party must be able "to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

In evaluating the nonmoving parties' showing, this court has directed the trial judge to consider the cumulative effect of the evidence, Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 39-40 (D.C.Cir.1987), and to grant all reasonable inferences to the nonmoving party, Exxon Corp. v. FTC, 663 F.2d 120, 126 (D.C.Cir.1980). The trial court, then, may grant summary judgment only if there is no "significantly probative" evidence tending to support the complaint. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.

The "significantly probative" test does not require the nonmoving party to discredit every conceivable alternative theory of causation. As this court noted in Elliott v. Michael James, Inc., 507 F.2d 1179 (D.C.Cir.1974), "there is no requirement that the circumstances, to justify the inferences sought, negative every other positive or possible conclusion." To be significantly probative, evidence need only be sufficient to permit a reasonable juror, indulging all reasonable inferences, to find that the party proved the element at issue.

In reviewing a district court's decision on a summary judgment motion, our role is no different. Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 (D.C.Cir.1984),

vacated on other grounds in Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Since pretrial summary judgment decisions are rendered exclusively on the basis of a "paper" record, an appellate court is equally well-positioned as a trial judge to assess the evidence at issue. Accordingly, our review of the district court's conclusions is de novo. Id. at 1571.

II THE DISTRICT COURT'S FINDINGS OF FACT

The district court found that appellant had not presented sufficient affirmative proof in her pretrial papers to carry her burden of establishing that she was exposed to DES, because none of the affidavits she offered--either separately or in...

To continue reading

Request your trial
25 cases
  • Larson v. Northrop Corp., 92-7104
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 29, 1994
    ...Elcon Enters., Inc., v. Washington Metr. Area Transit Auth., 977 F.2d 1472, 1478 (D.C.Cir.1992) (citing Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465-66 (D.C.Cir.1990), and Parmac, Inc. v. International Ass'n of Machinists Nat'l Pension Fund Benefit Plan A, 872 F.2d 1069, 1071 The relevan......
  • Galvin v. Eli Lilly and Co., 05-7134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 8, 2007
    ...inferences in her favor, to conclude she was more probably than not exposed to DES manufactured by Lilly. See Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465 (D.C.Cir.1990); Yount, 147 P.3d at 1074. It follows that, because Lilly presented an alternative theory, Galvin — though she need not......
  • Kovacevich v. Kent State University, 98-3678
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 9, 1999
    ...a trial record. Motions for summary judgment are decided "exclusively on the basis of a 'paper' record . . . ." Shields v. Eli Lilly & Co., 895 F.2d 1463, 1466 (D.C. Cir. 1990). Deposition transcripts and affidavits are used as stand-ins for the live-witness testimony that would be presente......
  • Atlas Air, Inc. v. Air Line Pilots Association
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 21, 2000
    ...de novo); Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997) (grant of summary judgment reviewed de novo); Shields v. Eli Lilly and Co., 895 F.2d 1463, 1466 (D.C.Cir.1990) A. The Profit-Sharing Plan Exclusion 1. Status Quo Obligations under the RLA Atlas Air's claim and the district court......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT