Wetherill v. University of Chicago

• Decision Date: 17 June 1983
• Docket Number: 77 C 2485.,No. 77 C 1434,77 C 1434
• Citation: Wetherill v. University of Chicago, 565 F.Supp. 1553 (N.D. Ill. 1983)
• Parties: Rachel WETHERILL, Plaintiff, v. UNIVERSITY OF CHICAGO and Eli Lilly and Company, Defendants. Maureen ROGERS, Plaintiff, v. UNIVERSITY OF CHICAGO and Eli Lilly and Company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

565 F. Supp. 1553

Rachel WETHERILL, Plaintiff, v.UNIVERSITY OF CHICAGO and Eli Lilly and Company, Defendants.

Maureen ROGERS, Plaintiff, v.UNIVERSITY OF CHICAGO and Eli Lilly and Company, Defendants.

Nos. 77 C 1434, 77 C 2485.

United States District Court, N.D. Illinois, E.D.

June 17, 1983.

COPYRIGHT MATERIAL OMITTED

Paul F. Stack, Mark D. DeBofsky, Stack & Filpi, Chicago, Ill., for plaintiffs.

Lane D. Bauer, Steven C. Parrish, Stephen E. Sheve, Shook, Hardy & Bacon, Kansas City, Mo., for defendantEli Lilly and Co.

John Menk, John Menk & Associates, James W. Gladden, Jr., Judith Janssen, Mayer, Brown & Platt, Chicago, Ill., for defendant University of Chicago.

MEMORANDUM OPINION AND ORDER^*

SHADUR, District Judge.

Both Rachel Wetherill("Wetherill") and Maureen Rogers("Rogers") allege they were injured by exposure in utero to diethylstilbestrol ("DES"), manufactured and supplied by Eli Lilly and Company("Lilly") and administered to plaintiffs' mothers as part of an experiment conducted by Dr. William Dieckmann("Dieckmann") in the early 1950s at the University of Chicago ("University") hospitals.Each Complaint contains the same three counts:

1.Count I charges University committed a battery by subjecting the plaintiff's mother to the DES experiment without her prior knowledge or consent.¹

2.Count II sounds in malpractice, asserting various acts of negligence by University and its hospital employees.²

3.Count III seeks recovery against University and Lilly on strict liability grounds.

All parties have deluged this Court with motions in limine in each case:

1.Lilly's motion to exclude evidence as to changes in Lilly product literature after plaintiffs were exposed to DES;

2.Lilly's motion to exclude cancer-related testimony;

3.University's motion to exclude colposcopic photographs;

4.University's motion to exclude an Abbott Laboratories document;

5.University's motion to barplaintiffs from calling Dr. Vaux as an expert witness;

6. plaintiffs' motion to exclude cumulative testimony of defendants' expert witnesses; and

7.Lilly's motion for separate trial.

This memorandum opinion and order will address each motion in turn.

Changes in Lilly Product Literature After Plaintiffs' Exposure to DES

Wetherill and Rogers intend to introduce four DES publications printed by Lilly after plaintiffs' births (November 16, 1951 and May 26, 1952, respectively):

1.Lilly's 1954 A-form publication,³ which mentions several researchers opposed to the use of DES during pregnancy;

2.Lilly's 1967 A-form, which acknowledges "possible adverse reaction on the fetus";

3.Lilly's 1972 A-form, which says a "statistically significant association has been reported between material ingestion of DES during pregnancy and the occurrence of vaginal carcinoma in the offspring"; and

4.Lilly's 1975 A-form, which warns that "vaginal adenosis has been reported in 30 to 90 percent of post pubertal girls and young women whose mothers received DES or a closely related congener during pregnancy."

Characterizing those increasingly ominous warnings as "subsequent remedial measures," Lilly moves under Fed.R.Evid.("Rule") 407 to exclude all evidence of changes in its DES literature after plaintiffs' births.Alternatively Lilly calls for exclusion under Rule 403.

Rule 407 provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Plaintiffs disclaim any intention of using the post-occurrence⁴ Lilly product literature as evidence of Lilly's "negligence or culpable conduct."Rather plaintiffs would introduce all four documents for "another purpose":

1.Lilly's 1954 A-form would be tendered to establish its knowledge of DES's dangers before plaintiffs' births — a claimed issue of "feasibility" — or alternatively to impeach the testimony of Lilly personnel who disavow any such knowledge before those dates.⁵

2.Three of them — the 1967, 1972 and 1975 A-forms — would be offered to prove the causal relationship between DES ingestion by a pregnant woman and injury to her offspring.⁶

Lilly's 1954 A-form does not fall within Rule 407's "feasibility" exception, for that issue is not controverted by Lilly.SeeOberst v. International Harvester Co.,640 F.2d 863, 866(7th Cir.1980)(evidence of subsequent remedial measure not admissible on the issue of feasibility unless it is contested).Lilly does not deny it would have been feasible to place warning language in its pre-occurrence product literature — if it had possessed knowledge sufficient to issue such warnings.On that latter subject — Lilly's knowledge (or the reasonable forseeability) of DES's harmful properties — the parties are in sharp disagreement.But that issue does not implicate the concept of "feasibility" within the meaning of Rule 407.Accord, Werner v. Upjohn Co.,628 F.2d 848, 855(4th Cir.1980);Schneider v. Eli Lilly and Co.,556 F.Supp. 809 at 811(E.D.La.1983);Keil v. Eli Lilly and Co.,No. 75-7099, slip op. at 2(E.D. Mich.July 3, 1980);Needham v. White Laboratories,No. 76 C 1101, slip op. at 4(N.D.Ill.Aug. 13, 1979).Contra, McAdams v. Eli Lilly and Co.,No. 77 C 4174, slip op. at 5-6(N.D.Ill.Oct. 6, 1981)(1954 A-form admissible in rebuttal or cross examination on issue of Lilly's knowledge during 1953 because "feasibility also embraces the factual basis upon which the warning change could have been made").

"Feasibility" of remedial measures, in the normal sense of the word, rather denotes whether it would have been practical to have employed them earlier.That is a matter far different from whether a claimed wrongdoer knew or should have known, but nonetheless did not employ, remedial measures earlier.That latter question concerns Lilly's culpability or negligence.⁷And Rule 407 by its very terms precludes the use of the 1954 A-form for that purpose.⁸

As for the other three post-1953 publications, Rule 407 surely does not foreclose their introduction as admissions by Lilly that prenatal DES exposure causes the type of injury suffered by plaintiffs.Because causation is analytically distinct from fault ("negligence or culpable conduct"), it is plainly "another purpose" for which evidence of subsequent remedial measures can be offered under Rule 407.⁹

In an effort to escape that conclusion, Lilly invokes Werner's exposition of the policy underlying the exceptions to Rule 407(628 F.2d at 857):

Of course, exceptions must arise where the defendant attempts to make offensive use of the exclusion of this evidence.Thus, if the defendant denies ownership or control, contends that no such repair or improvement was possible, or makes statements conflicting with the fact of repair, then the plaintiff should be allowed to make use of subsequent remedial measures.As previously noted, the list of exceptions in Rule 407 is illustrative, not exhaustive, but each of the listed exceptions deals with situations where the defendant might gain a direct benefit over and above the fact of exclusion and it seems to us that new exceptions to the rule should follow this rationale if the policy behind the rule is to be protected.

But recognition of the added exception here is entirely consonant with the Werner analysis: Were Lilly to escape plaintiffs' use of an admission regarding causation — a nonfault issue — Lilly would (not merely might)"gain a direct benefit over and above the fact of exclusion."It would surely realize such a "direct benefit" were its post-1953 literature rendered inadmissible as to causation as well as fault.

It might perhaps be urged Werner's"direct benefit" and "offensive use" language was intended to cover only situations in which the subsequent repair evidence convincingly disproves defendant's position on a non-fault issue.But in effect that would convert Rule 407 into a crude version of Rule 403, balancing the probative value of the evidence on that particular issue against the risk of prejudice (the impermissible inference of fault).Even apart from the obvious superiority of Rule 403 for making that comparison,¹⁰ two policy reasons militate convincingly against any such approach:

1.As the Rules are structured, Rule 402 says "All relevant evidence is admissible," in conjunction with which any specifically applicable Rule or Rules determine admissibility of evidence.Only when that has been done (independently of any countervailing factor) does Rule 403's comparative analysis come into play.It would distort the drafters' scheme of things to engraft another level of comparison into one specific Rule on admissibility.

2.Rule 403 mandates a major showing of prejudice ("substantially outweighs") to overcome the low threshold of admissibility represented by Rule 401's broad definition of "relevance."Rule 407, in its suggested application, would turn the balancing process on its head, requiring a major showing of probative value to overcome a merely possible degree of prejudice.

It is true plaintiffs will undoubtedly offer evidence of scientific clinical studies on the causation issue.But they are also entitled to seek the potentially greater effect a jury may give an admission on the same topic by Lilly.If Lilly expects to contest the causation issue, it cannot complain of any probative value the A-forms may have on that score.And as for any claimed prejudice, appropriate jury instructions can guard against any possible consideration of the A-forms as evidence of Lilly's failure to give adequate pre-occurrence warnings.

In sum the 1954 A-form is out while the other three A-forms are in.If the situation develops differently at...