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SHIELDS v. ELI LILLY & CO.

September 26, 1988

AMY SHIELDS, Plaintiff,
v.
ELI LILLY AND COMPANY, Defendant



The opinion of the court was delivered by: LAMBERTH

 ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

 Plaintiff Amy Shields has brought a products liability action against the defendant. Specifically, she alleges that she was severely and permanently injured, including, but not limited to, clear cell adenocarcinoma of the vagina, as a result of her exposure in utero in 1955 to diethylstilbestrol (DES) manufactured, sold, distributed, and/or promoted by the defendant. The case is presently before the Court on defendant's Motion for Summary Judgment.

 I

 In her response to defendant's interrogatories, plaintiff states that her mother was prescribed DES during the "early period of [her] pregnancy" with plaintiff by Dr. Alexander B. Sinclair. Dr. Sinclair has since died, and his medical records are no longer in existence. Plaintiff further responded that her mother filled the prescription at Watkins Drug Store, but that her mother has no other recollection of the physical description of the pill taken or instructions for its use.

 Prior to plaintiff's submission of the answers to interrogatories, plaintiff's counsel deposed plaintiff's mother, Margaret Shields. Margaret Shields testified in her deposition that she was staining during the first trimester, and her obstetrician, Dr. Sinclair, put her on bed rest and gave her a prescription to prevent miscarriage. While she did not recall the name of the medication, she described it as similar to "little red cinnamon drops or pills," which were smaller than aspirin, and said that she took it twice daily for about one month. She further testified that her recollection was refreshed by a small, red pill that she had picked from a "lineup" of some twenty-five pills shown her by plaintiff's counsel. Plaintiff gives no explanation for the inconsistency between this deposition testimony and the subsequent response to defendant's interrogatories, other than to say that plaintiff did not confer with her mother in completing the interrogatories, notwithstanding the express instructions to do so. Finally, Margaret Shields testified that her belief that the medicine she took was DES was based solely on the much later consensus of opinion of plaintiff's physicians, and that she had never made any effort to confirm that she had indeed taken DES.

 Far from corroborating Margaret Shields' deposition testimony, her labor and delivery records, as well as subsequent medical records, tend to contradict it. First, her labor and delivery records for plaintiff's birth contain the cryptic notation, "spotting -- 3 days -- June cleared bed rest." Second, when Margaret Shields gave her medical history to a different doctor during her second pregnancy, she apparently made no mention of any medication. Those records contain the notation, "3 1/2 months -- bleeding -- 4 days in bed."

 Dr. Sinclair's nurse from the mid-1950's, Marjorie Clifford, was also deposed, after first submitting a sworn affidavit. However, contrary to plaintiff's argument, in her brief and during oral argument, neither the affidavit nor deposition shows that Dr. Sinclair had a "custom" or "habit" of prescribing DES to pregnant women who were bleeding and threatening to miscarry. In fact, just the opposite is true. First, in nurse Clifford's affidavit, she stated that she recalled Margaret Shields being a patient of Dr. Sinclair's. Further, she recalled that "on occasion," Dr. Sinclair would prescribe DES to women who were straining or threatening to miscarry in early pregnancy. Nurse Clifford's subsequent deposition is even more telling. When asked about "Dr.Sinclair's usual, ordinary management of the case," nurse Clifford responded, "The first thing he insisted upon was absolute bed rest. If they didn't respond to bed rest, he may have used, on occasion, some oral medications or injectable medications. It depends. Each situation was a little different."

 Plaintiff next relies on two affidavits. In the first, Dr. Shane, a physician/pathologist, states that he has reviewed three slides taken from the vaginal tract of Amy Shields, and that in his opinion the tissue was abnormal. Further, he feels this abnormality "was caused by her in-utero exposure to synthetic estrogen (DES) or its congeners and that such pathologic findings would not appear in the absence of DES exposure to a statistical certainty of 97% to 99.7%." In the second affidavit, Linwood Tice, a professor at the Philadelphia College of Pharmacy and Science, states that he is "personally familiar with the physical appearances of the commonly-used pharmaceuticals employed by physicians in the 1950's," and that based on that familiarity, he feels "there was no progesterone or progesterone-type medication commonly and ordinarily on the market and dispensed which was red in color and smaller than an aspirin in size."

 Finally, prior to any litigation, plaintiff was diagnosed as having DES changes in her cervix and vagina. Defendant vigorously contests the plaintiff's characterization of her injuries as being the "signature disease" of DES; and contends in utero exposure to other synthetic estrogens has similarly been associated with the same changes in the cervix and vagina, that the term DES in the medical literature is a shorthand term for all of the various synthetic estrogens, and that clear cell adenocarcinoma occurs in the absence of any exposure to DES or any other drug.

 II

 Federal Rule of Civil Procedure 56(e) provides, inter alia, that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the party." Fed.R.Civ.P.56(e). Furthermore, "supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence." Id. (emphasis added).

  The Advisory Committee notes that the "very mission of the summary judgment procedures is to pierce the pleadings and to assess the proof to see whether there is a genuine need for trial." Fed.R.Civ.P.56(e), advisory committee note. This view is confirmed by the 1986 trilogy of Supreme Court cases dealing with the issue of summary judgment. See generally, Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In the most recent case of that trilogy, the Court of Appeals had reversed the District Court, holding that the defendant asbestos manufacturer's failure to negate plaintiff's allegation that her husband had been exposed to the defendant's product made summary judgment inappropriate. The Supreme Court reversed, holding that in absence of any admissible evidence by plaintiff to support a necessary element of her claim, the moving party had no burden to negate those claims. Celotex, 477 U.S. at 323. (Here "there can be 'no genuine issue as to any material fact,'" because there is a complete absence of any admissible evidence to support the plaintiff's claims.)

 In the second case of the trilogy, the Supreme Court held that while it is not the task of the trial court to "weigh the evidence and determine the truth of the matter," Anderson, 477 U.S. at 249, neither should the court send a case to the jury "merely because some evidence has been introduced by the party having the burden of proof, unless the evidence is of such a character that it would warrant a jury in finding a verdict in favor of that party." Id. at 251. The Court went on to explain that "if the evidence is merely colorable, Dombrowski v. Eastland, 387 U.S. 82, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967) (per curiam), or is not significantly probative, First Natl. Bank v. Cities Service 391 U.S. 253 at 290, summary judgment may be granted." Id. 477 U.S. at 249-50. The test to be applied is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. 477 U.S. at 252; accord, Tidler, et al. v. Eli Lilly & Co., 271 U.S. App. D.C. 163, 851 F.2d 418 (D.C. Cir. ...


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