Waitek v. Dalkon Shield Claimants Trust, No. C 85-3051.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtBENNETT
Citation908 F. Supp. 672
Decision Date08 December 1995
Docket NumberNo. C 85-3051.
PartiesPriscilla M. WAITEK and Marc Waitek, Plaintiffs, v. DALKON SHIELD CLAIMANTS TRUST, Defendant.

908 F. Supp. 672

Priscilla M. WAITEK and Marc Waitek, Plaintiffs,
v.
DALKON SHIELD CLAIMANTS TRUST, Defendant.

No. C 85-3051.

United States District Court, N.D. Iowa, Central Division.

December 8, 1995.


908 F. Supp. 673
COPYRIGHT MATERIAL OMITTED
908 F. Supp. 674
W.E. Kunze, Castle Rock, Colorado, and Dick H. Montgomery of Montgomery, Barry & Bovee, Spencer, Iowa, for plaintiffs

Robert D. Houghton of Shuttleworth & Ingersoll, P.C., Cedar Rapids, Iowa, and Robert C. Tucker of Arter & Hadden, Cleveland, Ohio, for defendant.

MEMORANDUM OPINION AND ORDER REGARDING MOTION FOR SUMMARY JUDGMENT

 TABLE OF CONTENTS
                 I. INTRODUCTION AND BACKGROUND ................................ 674
                 II. STANDARDS FOR SUMMARY JUDGMENT ............................. 675
                III. FINDINGS OF FACT ........................................... 677
                 A. Uncontested Facts ....................................... 677
                 B. Contested Facts ......................................... 678
                 IV. CONCLUSIONS OF LAW ......................................... 678
                 A. Statute of Limitations .................................. 678
                 B. Proximate Cause of Priscilla Waitek's Injuries .......... 683
                 C. Compliance with Scheduling Order ........................ 686
                 V. CONCLUSION ................................................. 688
                

BENNETT, District Judge.

A nulliparous plaintiff, who had hoped she would not remain so, and her spouse filed this product liability lawsuit with Hydra-like claims arising out of her use of a Dalkon Shield Intrauterine Device ("IUD") in the 1970's.1 Defendant's motion for summary judgment raises two issues. First, Defendant's motion raises the issue of whether Plaintiffs' claims are barred by the statute of limitations. Second, it raises the question of whether Plaintiffs can establish that Plaintiff Priscilla Waitek's use of the Dalkon Shield IUD caused the medical problems for which she and her husband have filed suit.

I. INTRODUCTION AND BACKGROUND

Plaintiffs Priscilla Waitek and Marc Waitek ("the Waiteks") originally filed their petition in the Iowa District Court for Cerro Gordo County on April 5, 1985. In their petition, the Waiteks asserted claims against Defendant A.H. Robins Company ("Robins"), the manufacturer of the Dalkon Shield IUD, for negligence, strict liability, breach of implied and express warranties, fraud, and infliction of emotional distress. On May 4, 1985, Robins removed the action to this court.2 On August 21, 1985, this case was stayed, pursuant to 11 U.S.C. § 362(a), when Robins filed a voluntary petition, under Chapter 11 of the United States Bankruptcy Code, Title 11 U.S.C., in the United States

908 F. Supp. 675
Bankruptcy Court for the Eastern District of Virginia. On July 25, 1988, the Bankruptcy Court confirmed a plan of reorganization ("the Plan"). As part of the Plan, the Defendant Dalkon Shield Claimants Trust ("the Trust") was established to administer the distribution of a fund for Dalkon Shield IUD claimants. The Waiteks completed the claims process and, on July 10, 1994, were certified by the Bankruptcy Court to resume their litigation in accordance with Amended Administrative Order Number 1 Governing Dalkon Shield Arbitration and Litigation.3 On September 15, 1994, the Waiteks amended their complaint in this action to comply with Amended Administrative Order Number 1 Governing Dalkon Shield Arbitration and Litigation by substituting the Trust for Robins. In their First Amended Complaint, the Waiteks asserted claims for negligence, strict liability, breach of implied and express warranties, fraud, and infliction of emotional distress

The Trust has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) on the Waiteks' claims. The Trust asserts two grounds for the court to grant summary judgment. First, the Trust argues that Plaintiffs' claims were not timely filed under Iowa because Patricia knew or should have known about her injuries and their possible connection to the Dalkon Shield IUD no later than January 10, 1983, when Priscilla was seen by Dr. Tiffany Williams at the Mayo Clinic. Second, the Trust asserts that Plaintiffs cannot establish a causational nexus between Priscilla's use of the Dalkon Shield IUD and the fertility problems for which she and her husband have filed suit.

A hearing on the Trust's Motion for Summary Judgment was held on December 4, 1995. At the hearing the Waiteks were represented by W.E. Kunze, Castle Rock, Colorado, and Dick H. Montgomery of Montgomery, Barry & Bovee, Spencer, Iowa. The Trust was represented by Robert D. Houghton of Shuttleworth & Ingersoll, P.C., Cedar Rapids, Iowa, and Robert C. Tucker of Arter & Hadden, Cleveland, Ohio. The parties have filed thorough and extensive briefs in support of their respective positions. Counsel were exceptionally well prepared for oral argument. Oral argument was spirited, informative, and immensely helpful to me in resolving the two nettlesome issues raised by the Trust. This matter is now deemed fully submitted.

II. STANDARDS FOR SUMMARY JUDGMENT

The Eighth Circuit Court of Appeals recognizes "that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years "motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Wabun-Inini, 900 F.2d at 1238 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986)); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir. 1992).

The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part:

Rule 56. Summary Judgment

(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party's favor as to all or any part thereof.
(c) Motions and Proceedings Thereon. ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions
908 F. Supp. 676
on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)).4 A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, here the Waiteks, and give them the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Munz v. Michael, 28 F.3d 795, 796 (8th Cir.1994); Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994); Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993); Burk v. Beene, 948 F.2d 489, 492 (8th Cir.1991); Coday v. City of Springfield, 939 F.2d 666, 667 (8th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992).

Procedurally, the moving party, the Trust, bears "the initial responsibility of informing the district court of the basis for their motion and identifying those portions of the record which show lack of a genuine issue." Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2553); see also Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). The Trust is not required by Rule 56 to support its motion with affidavits or other similar materials negating the opponent's claim. Id.

"When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. The Waiteks are required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach, 49 F.3d at 1325. Although "direct proof is not required to create a jury question, ... to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'" Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied sub nom. Metge v. Bankers Trust Co., 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,...

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23 practice notes
  • Loeckle v. State Farm Auto. Ins. Co., No. C98-3025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 28, 1999
    ...in plaintiff's affidavit as to foreclose the affidavit's use for summary judgment purposes); Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 684-686 (N.D.Iowa 1995) (holding that the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in confli......
  • Asa-Brandt, Inc. v. Adm Investor Services, Inc., No. C01-3021-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 18, 2001
    ...has applied the Camfield decision in several of its prior published decisions. See generally Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672 (N.D.Iowa 1995) (holding that physician's affidavit created genuine issue of material fact even though it directly contradicted his prior dep......
  • Richards v. Farner-Bocken Company, No. C 00-3014-MWB (N.D. Iowa 6/1/2001), No. C 00-3014-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 1, 2001
    ...in plaintiff's affidavit as to foreclose the affidavit's use for summary judgment purposes); Waitek v. Dalkon Shield Claimants Trust, 908 F. Supp. 672, 684-686 (N.D.Iowa 1995) (holding that the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in confl......
  • Gerdes v. Swift-Eckrich, Inc., No. C 95-3068-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • December 2, 1996
    ...testimony can generate a genuine issue of material fact precluding summary judgment. See Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 684-686 (N.D.Iowa 1995) (the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in conflict with the exper......
  • Request a trial to view additional results
23 cases
  • Loeckle v. State Farm Auto. Ins. Co., No. C98-3025-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • July 28, 1999
    ...in plaintiff's affidavit as to foreclose the affidavit's use for summary judgment purposes); Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 684-686 (N.D.Iowa 1995) (holding that the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in confli......
  • Asa-Brandt, Inc. v. Adm Investor Services, Inc., No. C01-3021-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • April 18, 2001
    ...has applied the Camfield decision in several of its prior published decisions. See generally Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672 (N.D.Iowa 1995) (holding that physician's affidavit created genuine issue of material fact even though it directly contradicted his prior dep......
  • Richards v. Farner-Bocken Company, No. C 00-3014-MWB (N.D. Iowa 6/1/2001), No. C 00-3014-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • June 1, 2001
    ...in plaintiff's affidavit as to foreclose the affidavit's use for summary judgment purposes); Waitek v. Dalkon Shield Claimants Trust, 908 F. Supp. 672, 684-686 (N.D.Iowa 1995) (holding that the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in confl......
  • Gerdes v. Swift-Eckrich, Inc., No. C 95-3068-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • December 2, 1996
    ...testimony can generate a genuine issue of material fact precluding summary judgment. See Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 684-686 (N.D.Iowa 1995) (the affidavit of an expert proffered in opposition to summary judgment motion was assertedly in conflict with the exper......
  • Request a trial to view additional results

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