United States District Court, D. Columbia
October 20, 2005.
LINDA L. BORTELL, Plaintiff,
ELI LILLY AND COMPANY, et al., Defendants.
The opinion of the court was delivered by: ELLEN HUVELLE, District Judge
Before the Court is defendant Eli Lilly and Company's ("Eli
Lilly") Motion for Summary Judgment ("Defs.' Mot."), joined by
defendants Bristol-Myers Squibb Company ("Bristol-Myers"), Dart
Industries, Inc. ("Dart"), GlaxoSmithKline, Inc. ("GSK"), and
Premo Pharmaceutical Laboratories, Inc. ("Premo") (collectively
"defendants"). Defendants argue that Pennsylvania law governs
under the District of Columbia's choice of law rules and,
therefore, plaintiff may not rely on market-share liability but
must identify the manufacturer of the DES that her mother
ingested. (Defs.' Mot. at 5-8.) Defendants further argue that
they are entitled to summary judgment because plaintiff cannot
produce sufficient evidence to meet her burden under Pennsylvania
law. (Defs.' Mot. at 8-14.) For the reasons set forth below, the
Court agrees and will grant defendants' motion.
This case presents another chapter in the unfortunate history
of diethylstilbestrol, commonly known as DES, a drug frequently
prescribed from the 1940's to the 1970's as both a prophylactic
and active remedy for pregnancy complications, particularly the
prevention of miscarriages. See In re DES Cases, 789 F. Supp. 552, 558
(E.D.N.Y. 1992). The consequences for children whose mothers
ingested DES during their pregnancies have been severe and
well-documented. See generally Cynthia Orenberg, DES: The
Complete Story, (St. Martin's 1981). These adverse effects
include malformed reproductive organs, infertility, and rare
forms of vaginal and cervical cancer in women, see R.M.
Guiusti, K. Iwamoto & E.E. Hatch, Diethystilbestrol Revisited: A
Review of the Long-term Health Effects, 122 Ann. Intern. Med.
778-88 (1995); E.E. Hatch et al., Cancer Risk in Women Exposed
to Diethylstilbestrol in Utero, 280 JAMA 630-34 (1998); Arthur
L. Herbst et al., Adenocarcinoma of the Vagina: Association of
Maternal Stilbestrol Therapy With Tumor Appearance in Young
Women, 284 New Engl. J. Med. 878 (1971), and genital
malformation, reduced sperm counts and testicular disorders in
men. Jorma Toppari et al., Male Reproductive Health and
Environmental Xenoestrogens, 104 Envtl. Health Perspectives,
Supp. 4, 741, 753-54 (1996).
Plaintiff was born in Pennsylvania in 1962 and grew up there,
but has lived outside the state since 1985 and is currently a
resident of California. (Pl.'s Opposition to Defendant Eli
Lilly's Motion for Summary Judgment (Pl.'s Opp'n) at 6.)
Plaintiff's mother, Ruth Bortell, took DES during her pregnancy
with plaintiff. (Defs.' Mot. at 2). Dr. Emerson Fackler, the
physician who prescribed the DES, used the term
"diethylstibestrol" in writing the prescription without
specifying a particular brand. (Pl.'s Opp'n at 5.) Plaintiff's
mother filled Dr. Fackler's prescriptions at the Rea and Derrick
Pharmacy in Lemoyne, Pennsylvania. (Id. at 2.) In 2001, while a
resident of California, plaintiff was diagnosed as infertile.
(Id.) The following year, her doctor diagnosed her with a
T-shaped uterus and stenotic cervix classic manifestations of
DES exposure. (Id.) In December 2002, plaintiff suffered a
spontaneous miscarriage. (Id.) On May 7, 2004, plaintiff filed suit against defendants in the
Superior Court for the District of Columbia seeking damages for
injuries allegedly caused by in utero exposure to DES. On June
14, 2004, the case was removed by defendants to federal court
under 28 U.S.C. §§ 1332 and 1441(b). Discovery closed on May 6,
2005, and defendants now move for summary judgment.
I. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a
motion for summary judgment shall be granted if the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine issue of material fact,
and that the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To be material, the fact must be capable of affecting the outcome
of the litigation; to be genuine, the issue must be supported by
admissible evidence sufficient for a reasonable trier of fact to
find in favor of the non-moving party. Id. at 247-48; see also
Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C.
To escape summary judgment the non-moving party's opposition
must consist of more than mere unsupported allegations or denials
and must be supported by affidavits or other competent evidence
setting forth specific facts showing that there is a genuine
issue for trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). The non-moving party must provide
evidence that would permit a reasonable jury to find in the
non-moving party's favor. Laningham, 813 F.2d at 1241. "If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted." Liberty Lobby,
477 U.S. at 249-50 (citations omitted). Nevertheless, "because summary judgment is a drastic
measure, courts should grant it with caution so that no person
will be deprived of his or her day in court to prove a disputed
material factual issue." Greenberg v. Food & Drug Admin.,
803 F.2d 1213, 1216 (D.C. Cir. 1986). For this reason, in considering
a motion for summary judgment, the "evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in
his favor." Liberty Lobby, 477 U.S. at 255; see also Wash.
Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320,
325 (D.C. Cir. 1989).
II. Choice of Law
A federal court sitting in diversity jurisdiction must apply
the choice of law rules of the forum state in which it sits.
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941);
see also Gray v. Grain Dealers Mutual Ins. Co., 871 F.2d 1128,
1129 (D.C. Cir. 1989). The District of Columbia has adopted the
"substantial interest" approach to choice of law questions.
Greycoat Hanover F Street Ltd. P'ship v. Liberty Mut. Ins. Co.,
657 A.2d 764, 767-68 (D.C. 1995). When faced with a choice of law
in an action sounding in tort, a court in the District of
Columbia will "balance the competing interests of the two
jurisdictions, and apply the law of the jurisdiction with the
more `substantial interest' in the resolution of the issue."
Lamphier v. Wash. Hosp. Ctr., 524 A.2d 729, 731 (D.C. 1987);
see also Jaffee v. Pallotta Teamworks, 374 F.3d 1223, 1227
(D.C. Cir. 2004). To determine which state maintains a more
substantial interest, a court must apply the factors listed in
Section 145 of the Restatement (Second) of Conflict of Laws.
Herbert v. Dist. of Columbia, 808 A.2d 776, 779 (D.C. 2002).
These include: (1) the place of injury; (2) the place where the
conduct causing the injury occurred; (3) the domicile, residence, place of incorporation and place of business
of the parties; and (4) the place where the relationship between
the parties is centered. Restatement § 145(2).
Plaintiff argues for application of California law, while
defendants claim that Pennsylvania law should apply. Before
undertaking a full choice of law analysis, under District of
Columbia law a court must first determine whether both states
have an interest in the application of its law to the dispute,
otherwise a "false conflict" exists and the law of the interested
state governs. Biscoe v. Arlington Cty., 738 F.2d 1352, 1360
(D.C. Cir. 1984). There is no dispute that the District of
Columbia has no interest strong enough to merit application of
its law in this case. Because, however, the policies of both
California (the state where plaintiff resides) and Pennsylvania
(the state where the drug was sold and ingested) would be
advanced by application of its law to the dispute, there is a
true conflict and the law of the state that "has a greater
interest in the controversy" will govern. Id.
Considering the first of the factors from Restatement § 145,
the Court finds plaintiff's place of injury to be Pennsylvania.
Plaintiff was exposed to DES in utero in Pennsylvania. The
malformation of plaintiff's uterus and cervix occurred when
plaintiff's reproductive system matured while she was still a
resident of Pennsylvania. Though plaintiff's injuries were not
discovered until she lived in California, the place of injury
Moreover, aside from the manufacture of the drug, most of the
conduct causing plaintiff's injuries occurred in Pennsylvania.
The drug was shipped from a wholesaler within Pennsylvania to the
Rea and Derrick Pharmacy. The drug was prescribed by a doctor in
Pennsylvania and dispensed by a Pennsylvania pharmacy. Further,
the last act necessary to cause plaintiff's injuries her
mother's ingestion of the drug occurred in Pennsylvania. The third Restatement factor favors California, since plaintiff
is a resident of and domiciled in California, and Eli Lilly is
incorporated in Indiana and does business nationally, including
in both California and Pennsylvania. Yet, like the first two
factors, the fourth Restatement factor the center of gravity of
the parties' relationship favors Pennsylvania. As discussed
above, except for the manufacture of the drug and the diagnosis
of the injury, all actions relevant to the injury occurred in
Pennsylvania. Pennsylvania maintains a strong interest in
adjudicating disputes arising from allegedly harmful actions
occurring within its borders. Therefore, the Court finds the
relationship between the parties to be centered in Pennsylvania.
Plaintiff notes that in a recent case, Blitsch v. Eli Lilly &
Co., No. 04-cv-0131 (C.D. Cal.), Eli Lilly advocated against
applying the law of the place where plaintiff was born. While
plaintiff may be correct that defendant has adopted conflicting
litigation positions (Pl.'s Opp'n at 12, App. 15), the Court
cannot determine from the pleading excerpt provided whether the
two cases are identical. The excerpt fails to indicate where
plaintiff's mother ingested the drug one of the critical
elements in this Court's decision. (Id.) Moreover, the
plaintiff in Blitsch moved away from her birthplace at a much
younger age, strengthening the interest of her current domicile.
Further, recent cases in this District have applied the law of
the place of place of exposure, rather than manifestation. See,
e.g., Galvin v. Eli Lilly & Co., No. 03-cv-1797 (D.D.C. June 10,
2005) (Mem. Op.) (applying law of place of exposure and current
domicile rather than place of manifestation); Dunseth v. Eli
Lilly & Co., No. 03-cv-2123 (D.D.C. Sept. 16, 2005) (Mem. Op.)
(applying law of birthplace and place of exposure). Therefore,
because three of the four factors from Restatement § 145 favor
Pennsylvania as the most interested forum, the Court will apply
Pennsylvania law in considering defendants' Motion for Summary
Judgment. III. Pennsylvania Law
DES cases often present problems of proof for a plaintiff. The
length of time between exposure and discovery of the injury is
often well in excess of 20 years, making it difficult for the
plaintiff to locate witnesses and for those witnesses to recall
facts with certainty. Often relevant documents have been
destroyed or misplaced. Given the multitude of DES manufacturers
marketing identical versions of DES during the mid-20th Century,
isolating the specific manufacturer responsible for any
individual plaintiff's injuries can be a daunting task.
Consequently, some states have adopted a theory of market share
liability for DES injuries. See Sindell v. Abbott Labs.,
607 P.2d 924 (Cal. 1980); Collins v. Eli Lilly Co., 342 N.W.2d 37
(Wis. 1984); Martin v. Abbott Labs., 689 P.2d 368 (Wash. 1984);
Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989);
Conley v. Boyle Drug Co., 570 So.2d 275 (Fla. 1990); and Smith
v. Cutter Biological, Inc., 823 P.2d 717 (Haw. 1991). Market
share liability holds that, under certain circumstances, a
plaintiff need not prove which manufacturer of a fungible product
specifically caused her injuries; instead liability is imposed
based on each defendant's share of the marketplace at the time of
the injury. See, e.g., Sindell, 607 P.2d at 937-38.
The Supreme Court of Pennsylvania has not taken up the question
of how to apportion liability in a DES exposure case. It has,
however, rejected the use of market share liability in lead
poisoning cases. Skipworth v. Lead Indus. Ass'n, Inc.,
690 A.2d 169 (Pa. 1997). In Skipworth, the court stated Pennsylvania's
general rule of tort liability: "a plaintiff, in order to
recover, must establish that a particular defendant's negligence
was the proximate cause of her injuries." Id. at 172. See also
Cuthbert v. City of Philadelphia, 209 A.2d 261, 263 (Pa. 1965).
"Adoption of the market share liability theory," the court noted,
"would result in a significant departure from this rule." Skipworth, 690 A.2d at 172.
Nevertheless, the Skipworth decision is not without ambiguity.
The Pennsylvania Supreme Court explained its rejection of market
share liability for lead paint manufacturers by comparing the
circumstances of lead paint exposure with those of DES. Id. at
172-73. It found that the factors justifying application of
market share liability in DES cases product fungibility and a
known time of injury were not present with respect to lead
poisoning. Id. Thus, the court held that "application of market
share liability to lead paint cases would grotesquely distort
liability." Id. at 173 (emphasis added).
The Skipworth decision appears to leave open the question of
whether Pennsylvania might adopt market share liability with
respect to DES cases. (Id. at 172 (acknowledging "that there
may arise a situation which would compel us to depart from our
time-tested general rule [requiring proof of proximate cause]")).
Since Skipworth, however, no Pennsylvania court has applied
market share liability in a DES case. Moreover, prior to
Skipworth, the lower courts of Pennsylvania were largely in
agreement that market share liability was not permitted under
Pennsylvania law. Market share liability has been specifically
rejected in the context of asbestos exposure, Eckenrod v. GAF
Corp., 544 A.2d 50 (Pa.Super.Ct. 1988), and where a defective
tire rim exploded. Cummins v. Firestone Tire & Rubber Co.,
495 A.2d 963 (Pa.Super.Ct. 1985). See also Burnside v. Abbott
Labs., 505 A.2d 973 (Pa.Super.Ct. 1986) (declining to decide
whether market share liability applied to DES exposure claim).
But see Erlich v. Abbott Labs., 5 Phila. Co. Rptr. 249 (Pa.
Com. Pl. 1981) (permitting alternative liability in DES case
under Section 433(B)(3) of the Restatement (Second) of Torts but
using market share liability theory).
In the absence of any post-Skipworth decision by a
Pennsylvania court permitting recovery under a theory of market
share liability, it is not the place of a federal court sitting
in diversity to do so. See Wisniewski v. Johns-Manville Corp.,
759 F.2d 271, 274 (3d Cir. 1985) ("We leave to . . . the state
legislatures and, where relevant, to the state courts the task of
expanding or restricting liability."). "Our role is to apply the
current law of the appropriate jurisdiction, and leave it
undisturbed." City of Philadelphia v. Lead Indus. Ass'n, Inc.,
994 F.2d 112, 123 (3d Cir. 1993) (declining to apply market share
liability under Pennsylvania law). Thus, "absent some
authoritative signal from the legislature or the [state courts],
we see no basis for even considering the pros and cons of
innovative theories." Dayton v. Peck, Stow & Wilcox Co.,
739 F.2d 690, 694 (1st Cir. 1984). In short, "`[w]e must apply the
law of the forum as we infer it presently to be, not as it might
come to be.'" Tidler v. Eli Lilly & Co., 851 F.2d 418, 424
(D.C. Cir. 1988) (quoting Dayton, 739 F.2d at 694-95). The
application of this principle of jurisprudence admits of only one
conclusion: at this time, market share liability is not a viable
theory for recovery in a products liability suit under
IV. The Evidence
Under Pennsylvania law, in order to survive summary judgment,
plaintiff must create a genuine issue as to the identity of the
specific manufacturer whose pills were ingested by her mother
during her pregnancy. See Mellon v. Barre-National Drug Co.,
636 A.2d 187, 191 (Pa.Super.Ct. 1993) ("Proof of causation is a
necessary element in a products liability action."); City of
Philadelphia, 994 F.2d at 123 ("A plaintiff must establish that
a particular product of a defendant manufacturer caused her
As an initial matter, plaintiff has proffered no evidence that
the pills ingested by plaintiff's mother were manufactured by any
defendant other than Eli Lilly. She has, therefore, failed to
create a genuine issue of material fact with respect to
defendants Bristol-Myers, Dart, GSK and Premo, and their motions for summary judgment must be
granted. Plaintiff has, however, introduced evidence of Eli
Lilly's responsibility, and the Court must now determine whether
it is sufficient to permit a reasonable jury to find for
plaintiff. Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758,
761 (D.C. Cir. 2002).
Plaintiff introduces several pieces of evidence to support her
claim that Eli Lilly produced the DES that caused her injuries.
First is the testimony of her mother. In her deposition, Ruth
Bortell described the pills she took as white, round, uncoated,
flat, and about the size of an asprin. (Pl.'s Opp'n at 4, App.
6.) She further testified that the name of the pill began with a
"D" and had an "ethyl" in the middle. (Id.) The testimony of
Ruth Bortell is corroborated by Dr. Fackler, who testified that
he wrote prescriptions for DES as "diethystilbestrol" (Pl.'s
Opp'n at 5, App. 18), and by photographic evidence that Lilly's
pills were sold under the generic name diethylstilbestrol and
generally conform to Ruth Bortell's description. (Pl.'s Opp'n at
5, App. 19; Defs.' Reply at 4 (admitting ¶ 12 of Pl.'s Opp'n).)
Eli Lilly counters with evidence that over 90 different
manufacturers were producing DES at that time (Defs.' Mot., Exs.
5 & 6), and that at least two other manufacturers made DES pills
that match plaintiff's description. (Defs.' Mot. at 10).
Moreover, at least one of those manufacturers, Hance Brothers and
White, was located in Pennsylvania and distributed "the
predominant amount of stilbestrol" in Philadelphia. (Defs.' Mot.,
Ex. 9 (Bialek Tr. at 13-14).)
In light of Eli Lilly's evidence that another manufacturer made
similar looking pills that were distributed within Pennsylvania,
plaintiff must produce sufficient evidence to convince a
reasonable jury that the pills matching Ruth Bortell's
description carried or distributed by the Rea and Derrick
Pharmacy in Lemoyne were those of Eli Lilly. Without such
evidence, plaintiff cannot meet her burden to prove causation under Pennsylvania law.
Mellon, 636 A.2d at 191. Toward this end, plaintiff introduces
affidavits from two pharmacists who worked at the Rea and Derrick
Pharmacy in 1962. (Pl.'s Opp'n, App. 7 (Bannan Aff.) & App. 8
(Krick Aff.).) The affidavits, copies of which are appended to
this Memorandum Opinion, are identical form affidavits, which
indicate the time period during which each pharmacist worked at
the pharmacy and state that "in the 1960's, if a prescription for
DES was brought into the pharmacy, the Lilly brand would have
been dispensed." (Id.) Serious questions exist, however,
regarding the admissibility of these affidavits.
Ordinarily a court may grant summary judgment on the basis of
sworn affidavits, Echostar Commc'ns Corp. v. FCC, 292 F.3d 749,
753 (D.C. Cir. 2002), as long as they comply with
Fed.R.Civ.Pro. 56, which requires that affidavits "be made on personal
knowledge, . . . set forth such facts as would be admissible in
evidence, and . . . show affirmatively that the affiant is
competent to testify to the matters stated therein."
Fed.R.Civ.P. 56(e). A court may consider affidavits submitted in compliance
with Rule 56(e) as evidence, even though a sworn declaration
remains "technically hearsay." Echostar, 292 F.3d at 753.
Because summary judgment substitutes for trial, however,
affidavits under Rule 56 must "consist only of admissible
evidence." Cobell v. Norton, 391 F.3d 251, 261 (D.C. Cir.
There is little doubt that, were Krick and Bannan available to
testify at trial, their affidavits would meet the requirements of
Rule 56(e). Facially, at least, the affidavits are based on
personal knowledge and relate to admissible evidence.
Unfortunately for plaintiff, neither Bannan nor Krick will be
able to testify at trial. Mr. Bannan died on June 10, 2005.
(Defs.' Mot. at 11.) Mr. Krick suffers from dementia and is not
expected to be competent to testify. (Pl.'s Opp'n, App. 30 (Wilma Krick Aff.); Defs.' Mot. at 13-14, Gransky
Aff. Ex. 14 (Michalek Supp. Statement.).)*fn1 Thus,
plaintiff has not shown that the affiants are "competent to
testify to the matters contained" in their affidavits.
Fed.R.Evid. 56(e). Without Mr. Krick's and Mr. Bannan's availability to
testify and undergo cross-examination either at trial or in a
pre-trial deposition, the Court cannot credit the affidavits as
anything more than hearsay.
Plaintiff nonetheless argues that the affidavits are admissible
under the Fed.R.Evid. 807, which provides a catch-all exception
to the general prohibition on the admissibility of hearsay
evidence found in Fed.R.Evid. 802. Rule 807 provides:
a statement not specifically covered by [another
hearsay exception] but having equivalent
circumstantial guarantees of trustworthiness, is not
excluded by the hearsay rule, if the court determines
that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on
the point for which it is offered than any other
evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be
served by admission of the statement into evidence. Fed.R.Evid. 807. The residual exception of Rule 807
is "extremely narrow." United States v. Washington,
106 F.3d 983, 1001 (D.C. Cir. 1997). A court must be
"confident . . . that the declarant's truthfulness is
so clear from the surrounding circumstances that the
test of cross-examination would be of marginal
utility." Lilly v. Virginia, 527 U.S. 116, 136
(1999) (internal quotation marks omitted). Thus,
proponents of an admission under Rule 807 bear "a
heavy burden to come forward with indicia of both
trustworthiness and probative force." Washington.
106 F.3d at 1002. Such indicia simply do not exist
with respect to the Bannan and Krick affidavits.
For instance, the affidavits are pre-typed forms that require a
declarant merely to "fill-in-the-blank" with facts regarding the
manufacturer and practices of the pharmacy. (See Bannan Aff.;
Krick Aff.) While it is not clear whether the forms were
completely filled out before Mr. Bannan and Mr. Krick affixed
their signatures, it is clear that the majority of the form was
not filled out by either affiant. Alan Vogenberg, a investigator
pharmacist paid by plaintiff's law firm interviewed Mr. Bannan
and Mr. Krick and provided them "a prepared statement" for their
signature. (Pl.'s Opp'n, App. 9 (Vogenberg Aff.).) The Bannan and
Krick affidavits, moreover, appear to be facially inconsistent
with the factual account provided by the Vogenberg affidavit. Mr.
Vogenberg claims that "each told [him] that Hensel and Sons was
the wholesaler that supplied Rea and Derrick Pharmacy" (id.),
yet the Krick and Bannan Affidavits list two wholesalers Hensel
& Sons and Drug House. (See Bannan Aff.; Krick Aff.) Such
inconsistency immediately calls into question the trustworthiness
and probity of these affidavits. Further, there is at least a
serious question as to whether Mr. Bannan repudiated the content
of his affidavit prior to his death. According to an affidavit
filed by defense counsel Ericka Snyder, Mr. Bannan stated during a telephone interview that he had no
recollection of signing the affidavit proffered by plaintiff.
(Snyder Aff. ¶ 7.) Moreover, he recalled the Lilly DES tablets
dispensed at the Rea and Derrick Pharmacy to be red, coated
tablets and that the small, white, uncoated tablets were produced
by a generic manufacturer. (Id. ¶ 4.) While the Snyder
affidavit is itself inadmissible hearsay, at a minimum it raises
concern regarding the reliability of the Bannan affidavit. With
respect to Mr. Krick, the statement submitted by Dr. Michalek
places the onset of Krick's symptoms related to Lewy body disease
at early 2004, pre-dating his signing of the affidavit proffered
by plaintiff. (Michalek Supp. Statement.) Despite
counter-testimony by Mr. Krick's wife (Wilma Krick Aff.) and a
neighbor, Maryellen Simpson (Pl.'s Opp'n, App. 31 (Simpson
Aff.)), that Mr. Krick was competent at the time he signed the
affidavit, Dr. Michalek's statement provides a reason to question
whether Mr. Krick's illness compromised the trustworthiness of
Most importantly, the Bannan and Krick affidavits fail to
comport with the terms of Fed.R.Evid. 807(B): that "through
reasonable efforts" the proponent could not have procured more
probative evidence. Mr. Krick signed his affidavit on May 24,
2004; Mr. Bannan, two days later. By failing to depose either Mr.
Bannan or Mr. Krick during the year after obtaining their
affidavits despite knowledge of the affiants' elderly
age,*fn3 plaintiff failed to engage in "reasonable efforts" to preserve their testimony for trial. Even now,
plaintiff claims that Mr. Krick is competent to testify, yet she
inexplicably cancelled his deposition that had been noticed for
July 15, 2005. (Defs.' Reply at 3.) Plaintiff's failure to pursue
Mr. Krick's deposition makes it impossible for the Court to
credit her lawyer's affidavit attesting to Mr. Krick's
competence. Despite the Supreme Court's admonition in Celotex
Corp. v. Catrett, 477 U.S. 317 (1986), that "Rule 56 does not
require the non-moving party to depose her own witnesses," id.
at 324, it remains the obligation of the non-moving party to
"designate specific facts showing that there is a genuine issue
for trial." Id. (internal quotation marks omitted). Plaintiff
cannot fail to preserve evidence critical to her case and then
attempt to blame Eli Lilly for not deposing Mr. Krick and Mr.
Bannan. Thus, since plaintiff failed to expend reasonable efforts
to obtain properly admissible evidence, the Court finds that the
Krick and Bannan affidavits are not admissible under the residual
exception of Fed.R.Evid. 807.*fn4
Plaintiff further argues that even if the affidavits will not
constitute admissible evidence at trial, the Court may still
consider them at the summary judgment stage. In support,
plaintiff cites Celotex, in which the Supreme Court observed that the
non-moving party need not "produce evidence in a form that would
be admissible at trial in order to avoid summary judgment." Id.
at 324. Plaintiff interprets that language to mean that so long
as the content of the affidavit consists of evidence that could
be admissible in some form, a district court may consider the
affidavit at the summary judgment stage, regardless of whether
plaintiff has any vehicle for admitting the evidence at trial.
(Pl.'s Opp'n at 18.) The weight of authority does not support
this novel proposition, for the general rule is that "hearsay
evidence cannot be considered on a motion for summary judgment."
Wiley v. U.S., 20 F.3d 222, 226 (6th Cir. 1994). Even after
Celotex, it is "well-settled that only admissible evidence may
be considered by the trial court in ruling on a motion for
summary judgment." Beyenne v. Coleman Sec. Servs., Inc.,
854 F.2d 1179, 1181 (9th Cir. 1988).
The majority of circuits interpret Celotex to permit
consideration of evidence submitted at summary judgment in
non-admissible form only when "the content of the statements will
be reduced to admissible form at trial." McMillian v. Johnson,
88 F.3d 1573, 1584 (11th Cir. 1996). See also Garside v. Osco
Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990) ("[A]bsent a showing
of admissibility and none was forthcoming here appellant may
not rely on rank hearsay . . . to oppose proper motions for
summary judgment."). Both the D.C. Circuit and the Third Circuit
reject the notion that evidence that cannot be reduced to an
admissible form may properly be considered at summary judgment.
In Gleklen v. Democratic Cong. Campaign Comm., Inc.,
199 F.3d 1365 (D.C. Cir. 2000), the D.C. Circuit held that any evidence
considered by a court at the summary judgment stage "must be
capable of being converted into admissible evidence." Id. at
1369. Similarly, the Third Circuit has ruled that "hearsay
evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court
declarant could later present the evidence through direct
testimony, i.e., in a form that would be admissible at trial."
J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542
(3d Cir. 1990) (emphasis added) (internal quotation marks
Even the cases cited by plaintiff fail to support her argument.
In Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003), the Indiana
Supreme Court held that "an affidavit that would be inadmissible
at trial may be considered at the summary judgment stage of the
proceedings if the substance of the affidavit would be admissible
in another form at trial." Id. at 1241-42. Notably, the Indiana
Supreme Court viewed its opinion as largely consistent with that
of most federal courts, which permit evidence presented in
non-admissible form to be considered only "if that evidence can
be rendered admissible at trial." Reeder, 788 N.E.2d at 1240.
Though the Indiana Supreme Court permitted consideration of an
affidavit by a doctor who died after providing an affidavit but
before trial and before he could be deposed, it did so because
another expert witness could easily testify to the same facts.
Id. at 1242. Here, there is nothing in the record to indicate
that anyone other than Mr. Bannan or Mr. Krick can testify as to
the practices of the Rea and Derrick Pharmacy between 1962 and
1963. Plaintiff also relies on Oto v. Metro. Life Ins. Co.,
224 F.3d 601 (7th Cir. 2000), in which the Seventh Circuit held that
to confuse the admissibility of an affidavit at trial with its
use at the summary judgment stage would "require [the Court] to
read a `cross-examination' requirement into Rule 56 that is not
there." Id. at 604. Yet in Oto, the objecting party not only
had the opportunity to cross-examine the affiant regarding the
contents of the contested affidavit, but in fact did so. Id.
Thus, the Seventh Circuit's discussion of the admissibility of
the affidavit in the absence of cross-examination is largely
dicta. To the extent that it is not dicta, it is inconsistent with the
near-uniform approach to this issue by most federal circuits,
including this circuit's jurisprudence.
Without the Bannan and Krick Affidavits, plaintiff's evidence
on the issue of causation consists solely of her mother's
description of the DES pill that she ingested a description
that matches both Eli Lilly's pills and those of another
manufacturer who distributed its product within Pennsylvania.
Even viewed in the light most favorable to plaintiff, such slim
evidence is insufficient to permit a reasonable jury to find that
Eli Lilly is more likely than not the cause of plaintiff's
injuries. The facts of this case are similar to those in Galvin
v. Eli Lilly and Co., No. 03-cv-1797 (D.D.C. June 10, 2005)
(Mem. Op.), in which the Court held that testimony describing the
product as a "round," "little white pill with a cross," was
insufficient to defeat summary judgment where defendant
introduced evidence of another manufacturer who distributed a
pill that also matched plaintiff's description. Id.
As a counterweight to Galvin, plaintiff relies on Dunseth v.
Eli Lilly and Co., No. 03-cv-2123 (D.D.C. Sept. 16, 2005) (Mem.
Op.), in which the Court denied summary judgment. One critical
fact, however, separates Dunseth from both Galvin and this
case an affidavit from a local pharmacist linking the mother's
description of the DES pill she ingested with a single, specific
manufacturer. Id. But absent the Bannan and Krick affidavits,
plaintiff cannot provide the necessary evidentiary link that
existed in Dunseth.*fn5 Plaintiff also points to Kogen v.
Eli Lilly and Co., No. 03-cv-962 (C.D. Ca. July 22, 2003) (Order);
Woolfolk v. Eli Lilly and Co., et al., No. 03-cv-3577 (W.D.
Wash. Mar. 15, 2005) (Order on Motion for Summary Judgment); and
Brooks v. Eli Lilly and Co. et al., No. 03-cv-1796 (D.D.C.)
(Minute Order, July 28, 2005) (adopting rationale in Woolfolk),
as cases in which the courts denied summary judgment based merely
on the mother's description of the pill. Yet each of these cases
suffers from the same fatal flaw: they appertain to jurisdictions
(i.e., California and Washington) that have adopted market
share liability for DES actions. In a market share liability
jurisdiction, proof as to a particular defendant's responsibility
has zero relevance; the same can be said for the presidential
value to this action of an opinion from a market share liability
jurisdiction. In fact, in Woolfolk (which is the only case
cited in Brooks) the court did not even address the issue of
whether there was sufficient evidence linking defendant to the
pill ingested. Rather, the sole issue was whether there was
sufficient evidence that plaintiff's mother had ingested DES.
For the foregoing reasons, defendants Bristol-Myers', Dart's,
GSK's, Premo's and Eli Lilly's Motions for Summary Judgment are
granted. Plaintiff's Motion to Strike the Supplemental Statement
of Maria Michalek is denied. An appropriate Order accompanies
this Memorandum Opinion.
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