Waitek v. Dalkon Shield Claimants Trust

• Decision Date: 14 August 1996
• Docket Number: No. C 85-3051-MWB.,C 85-3051-MWB.
• Citation: 934 F. Supp. 1068
• Parties: Priscilla M. WAITEK and Marc Waitek, Plaintiffs, v. DALKON SHIELD CLAIMANTS TRUST, Defendant.
• Court: U.S. District Court — Northern District of Iowa

934 F. Supp. 1068

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

No. C 85-3051-MWB.

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

July 31, 1996.

As Amended August 14, 1996.

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Richard J. Barry of Montgomery, Barry & Bovee, Spencer, Iowa, and William E. Kunze, Castle Rock, Colorado, for Plaintiffs.

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

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S POST-TRIAL MOTIONS

BENNETT, District Judge.

                                        TABLE OF CONTENTS
                  I. INTRODUCTION AND BACKGROUND .................................... 1074
                 II. THE TRUST'S MOTION PURSUANT TO FED.R.CIV.P. 50(b) .............. 1076
                     A. Applicable Standards ........................................ 1076
                        1. Procedural requirements .................................. 1076
                        2. Evidentiary standard ..................................... 1077
                     B. The Trust's Grounds For Judgment As A Matter Of Law ......... 1078
                        1. Causation and Dr. Dunker's testimony ..................... 1078
                           a. Waiver ................................................ 1079
                              i. McKnight. .......................................... 1080
                             ii. Other jurisdictions. ............................... 1080
                            iii. The Trust's failure to timely object. .............. 1081
                             iv. Plain error ........................................ 1083
                           b. Sufficiency of the evidence ........................... 1083
                              i. Standards for expert testimony ..................... 1084
                             ii. Applicability of Sorensen .......................... 1086
                            iii. Applicability of McKnight .......................... 1087
                             iv. Dr. Dunker's opinions .............................. 1089
                        2. Adoption expenses ........................................ 1091
                        3. Past hospital and medical expenses ....................... 1091
                III. THE TRUST'S MOTION FOR NEW TRIAL ............................... 1092
                     A. Applicable Standards ........................................ 1092
                     B. The Trust's Grounds For New Trial ........................... 1093
                        1. Causation and Dr. Dunker's testimony ..................... 1093
                        2. Jury instruction on proximate cause ...................... 1094
                           a. Applicable law ........................................ 1094
                           b. Review of Final Jury Instruction No. 18 ............... 1096
                        3. Court's denial of the Trust's motion for mistrial ........ 1097
                 IV. THE TRUST'S MOTION FOR REMITTITUR .............................. 1098
                  V. CONCLUSION ..................................................... 1100
                

A familiar adage says, "Better late than never." However, the court observes, sometimes it is just too late. Thus, the maxim may not be enough to save a litigant who has failed to make a timely objection to the introduction of evidence.

In the post-trial motions following a jury verdict for the plaintiffs in this products liability suit, the defendant implores the court to exercise a "gatekeeping role" pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and reject the opinions and testimony of plaintiffs' expert and thus set aside the jury verdict. Complicating defendant's request is its admitted but no less surprising failure to contemporaneously object to the admissibility of and basis for the expert's opinions at the time they were offered. Having neglected to raise its objections pursuant to the standards for expert testimony set forth in Federal Rule of Evidence 702 and Daubert at any time prior to trial or at the time the opinions were offered on direct examination, defendant now bases its renewed motion for judgment as a matter of law and its motion for new trial on the ground that the expert's opinion is so fundamentally unsupported by the evidence of record on the issue of causation that it must be rejected. Plaintiffs resist defendant's objections to their expert as untimely. In the alternative, plaintiffs assert this case primarily involved a classic battle of the experts. Despite defendant's attempts to impeach and discredit plaintiffs' expert, the jury, as the finder of fact, found their expert to be more credible on the issue of causation; thus, the jury's verdict in favor of the plaintiffs should not be disturbed.

Besides its objections to the opinions of plaintiffs' expert, defendant has raised numerous additional issues in its post-trial motions. As further grounds for its renewed motion for judgment as a matter of law, defendant contends the jury's award of damages for the plaintiffs' out-of-pocket expense incurred in adopting their two children is violative of Iowa public policy. In addition, defendant asserts that, under Iowa law, the plaintiffs cannot recover past hospital and medical expenses which have been covered by insurance. In addition to its assertion that Dr. Dunker's opinion on causation is unsupported by the evidence of record and, as such, warrants a new trial, defendant also claims the court should grant a new trial based upon the court's alleged errors in instructing the jury on proximate cause and in denying defendant's motion for mistrial. Lastly, defendant moves for remittitur of the jury verdict, contending that the amount awarded to the plaintiffs was excessive.

I. INTRODUCTION AND BACKGROUND

This post-trial opinion follows a jury verdict for the plaintiffs, Priscilla and Marc Waitek, in which the jury found that Priscilla Waitek's use of the Dalkon Shield IUD ("Dalkon Shield") was a proximate cause of her injuries and awarded her compensatory damages in the amount of $373,534.31. In addition, the jury found that Priscilla Waitek's use of the Dalkon Shield was a proximate cause of Marc Waitek's loss of spousal consortium and awarded him damages for past loss of consortium in the amount of $35,000.00. This five-day jury trial in June of 1996 was the culmination of a lawsuit filed by the Waiteks eleven years ago on April 5, 1985. Before discussing the resolution of the Waiteks' claims against the defendant, the Dalkon Shield Claimants Trust ("the Trust"), and the Trust's subsequent post-trial motions, the court will briefly review the sequence of events precipitating the trial.

The Waiteks filed a petition in the Iowa District Court for Cerro Gordo County on April 5, 1985, asserting 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 based upon diversity of jurisdiction pursuant to 28 U.S.C. § 1441. 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 Bankruptcy Court for the Eastern District of Virginia. The bankruptcy court confirmed a plan of reorganization on July 25, 1988, and as part of this plan, 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, they were certified by the bankruptcy court to resume their litigation in accordance with Amended Administrative Order Number 1 Governing Dalkon Shield Arbitration and Litigation. On September 19, 1994, the Waiteks amended their complaint in this action to comply with the amended administrative order, substituting the Trust for Robins as the defendant in this case. 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.

On August 31, 1995, the Trust moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) on the Waiteks' claims, and the Waiteks filed a resistance to that motion. The court denied the Trust's motion on December 8, 1995, finding genuine issues of material fact on the issues raised by the Trust regarding the Waiteks' claims. See Waitek v. Dalkon Shield Claimants Trust, 908 F.Supp. 672, 686 (N.D.Iowa 1995). On April 4, 1996, the parties filed an Agreement on Waiver of Proof and Stipulation, in which the parties agreed that the only issues upon which the Waiteks would be required to present proof and the only issues which would be submitted to the jury for resolution were as follows:

a. Have plaintiffs proven, by a preponderance of the evidence, that Mrs. Waitek's use of the Dalkon Shield was a proximate cause of her alleged injuries b. If so, what reasonable compensatory damages have Mr. and Mrs. Waitek sustained as a result of Mrs. Waitek's use of the Dalkon Shield?

Thus, in accordance with the parties' agreement, this case went forward to trial solely on the issues of proximate cause and damages.

Trial by jury began on June 3, 1996, in Fort Dodge, Iowa. At the conclusion of the Waiteks' evidence, the Trust made a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), and the court denied that motion. The Trust renewed its motion at the conclusion of its own evidence on June 7, 1996, and the court again denied the motion.

On June 11, 1996, the jury returned a verdict in favor of the Waiteks. Specifically, the jury found that Priscilla Waitek's use of the Dalkon Shield was a proximate cause of her injuries. In conjunction with that finding, the jury awarded Priscilla Waitek compensatory damages in the amount of $373,534.31.¹ In addition, the jury found that Priscilla Waitek's use of the Dalkon Shield was a proximate cause of Marc Waitek's loss of...