Baker v. Dalkon Sheild ( 1998 )

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit











No. 98-1214



                           ANITA BAKER,



                       Plaintiff, Appellee,



                                v.



                  DALKON SHIELD CLAIMANTS TRUST,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Joseph L. Tauro, U.S. District Judge]







                              Before



Selya, Boudin and Lipez, Circuit Judges.









     Paul F. Strain with whom Terri L. Turner, Venable, Baetjer and

Howard, LLP, Richard A. Oetheimer and Goodwin, Proctor & Hoar LLP were on brief for appellant.

     Robert V. Costello with whom Schneider, Reilly, Zabin &

Costello, P.C., Neil Rossman and Rossman, Rossman & Eschelbacherwere on brief for appellee.











September 23, 1998













  BOUDIN, Circuit Judge.  Dalkon Shield Claimants Trust

(the "Trust") appeals from a judgment in favor of Anita Baker for

damage allegedly caused by the Dalkon Shield contraceptive

intrauterine device (the "IUD").  The background facts, drawn from

the trial record, are largely undisputed.  In October 1972, Anita

Baker underwent a routine gynecological examination that revealed

that she had a slightly enlarged right ovary and that trichomonas,

a sexually transmitted organism, was present in her Pap smear.

Baker had a Dalkon Shield IUD inserted in July 1973 and removed in

September 1974 after suffering severe discomfort.

  In October 1974, Baker went to obstetrician/gynecologist

Dr. Miles St. John.  He examined Baker and fit a diaphragm for her.

In the course of his examination,  he noted hardness and slight

irregularity in the uterus.  His diagnosis was that it could have

been caused by pelvic inflammatory disease ("PID") or by a fibroid

tumor or by endometriosis.  Concerned about this development, he

asked Baker to return for a follow-up visit in three months.  In

January 1975, Baker returned to Dr. St. John; he reexamined her and

concluded that the problem had resolved itself.  He also asked

Baker to return in six months but she did not do so.

  In January 1979, Baker had a laparoscopy--a visual

inspection through a scope--to determine why she was having

difficulty conceiving.  The procedure revealed that Baker had a

fibroid tumor in her uterus and adhesions in her left and right

fallopian tubes.  It also indicated damage consistent with PID.  In

February 1979, she underwent exploratory and reconstructive surgery

that confirmed that her infertility was due to PID.  In December

1979, Baker underwent extensive reconstructive surgery and

microsurgery on her reproductive organs.  Sometime later, after an

ectopic pregnancy, Baker had her right fallopian tube removed and

her left fallopian tube sealed.

  In 1980, Baker filed a complaint against A.H. Robins

Company, Inc. in the district court for negligence, breach of

warranty, and fraud, claiming that the Dalkon Shield IUD was

responsible for her PID and subsequent infertility.  There ensued

a substantial delay due to the bankruptcy of A.H. Robins, the

establishment of the Trust, and the processing of Baker's claim

through the Trust's claims settlement process.  In January 1995,

Baker was certified by the bankruptcy court in charge of the A.H.

Robins bankruptcy to reopen the case and proceed with litigation.

The aspect of that case that concerns us on this appeal relates to

chlamydia, a sexually transmitted disease now widespread in the

United States.

  In 1996, two chlamydia titer tests were performed upon a

sample of Baker's blood.  One was performed at the Trust's

request, the other at Baker's.  Both titer tests were positive for

chlamydia, indicating that Baker had been infected by chlamydia at

some earlier time.  This was of importance to the defense because--

in addition to disputing that Dalkon Shield IUDs could cause the

PID and the effects claimed by Baker--the Trust planned to point to

chlamydia as an alternative, exculpatory cause of her injury.

     In October 1997, immediately before the trial, Baker

moved in limine to exclude the evidence of the two 1996 chlamydia

antibody titer tests as remote in time and unduly prejudicial.  In

support of their admissibility, the Trust submitted an affidavit by

Dr. Mary Jane Minkin, a gynecologist.  Dr. Minkin's affidavit

explained that the medical community considered titer tests

reliable evidence of prior infection by chlamydia and that

chlamydia is the most common cause of the type of PID that the

Trust claimed that Baker had suffered.  The trial court postponed

its ruling on the admissibility of the titer test evidence until a

voir dire of the Trust's experts could be conducted.

     Trial began in November 1997.  Since the Trust's experts

were not immediately available, the district court first allowed

the Trust to assert in opening argument its intention to offer

evidence in support of its alternative causation theory, namely,

that Baker's PID was caused by chlamydia.  The district court also

allowed the Trust to cross-examine Baker's first witness,

gynecologist Dr. St. John, regarding the Trust's alternative

causation chlamydia theory.

     On the second day of trial and outside the presence of

the jury, the district court heard the voir dire testimony of Dr.

Richard Jones, another of the Trust's expert gynecologists.  Dr.

Jones explained (as more fully set forth below) why he believed

that Baker's PID had been caused by chlamydia and not by the IUD

and why the positive 1996 chlamydia titer tests reinforced his

opinion.  Following the voir dire testimony, the district court

granted Baker's motion to exclude any reference by Dr. Jones to

chlamydia or the 1996 titer tests.

     The district judge said that the opinion Dr. Jones had

presented in voir dire regarding the alternative causation

chlamydia theory "strikes [the court] as being nothing more than a

guess."  In later references to this issue, which recurred

throughout the trial in relation to different pieces of evidence,

the district court stated that there was no "basis" for discussing

the theory.  On one occasion, the court remarked that the evidence

relating to chlamydia was more prejudicial than probative and

suggested that direct testimony by Dr. Jones on this topic would

"inject . . . sexual innuendo" into the trial.

     Thereafter, the district court barred the Trust's

experts, Drs. Jones and Minkin, from testifying about chlamydia,

and barred the Trust's counsel from cross examining Baker's

principal medical expert, Dr. Phillip Stubblefield, on the issue of

chlamydia as an alternative cause of the PID.  By closing

arguments, the district court had completely barred the Trust's

counsel from mentioning the word "chlamydia," and restricted

counsel from referring either to his earlier cross examination of

Dr. St. John on chlamydia or to Baker's medical records regarding

the trichomonas that appeared in the 1972 Pap smear, both of which

were already in evidence.

     Prior to reaching a verdict, the jury asked the district

judge several questions about the medical records in evidence that

described the presence of trichomonas in 1972.  These questions

appeared to refer to the issues surrounding the Trust's

alternative-causation argument based on chlamydia.  Following

deliberations, the jury returned a verdict for Baker on the issue

of causation and awarded damages of $175,000.

     The district court entered a judgment for $175,000 in

damages and $365,802.73 in prejudgment interest.  The Trust moved

to modify the judgment by striking the prejudgment interest on the

ground that the United States Bankruptcy Court for the Eastern

District of Virginia had sole jurisdiction over whether prejudgment

interest could be awarded to Dalkon Shield plaintiffs under the

A.H. Robins Co., Inc. plan of reorganization.  The motion was

denied by the district court.  This appeal followed.

     In this court, the Trust argues that the district court

committed reversible error in effectively excluding its entire

alternative causation defense from trial, by restricting or barring

direct expert opinion testimony, by excluding scientific evidence,

and by limiting cross examination of plaintiff's expert witnesses.

The Trust also argues that the district court improperly awarded

prejudgment interest.  We agree on the first point and remand for

a new trial; on the second point, Baker now is contending that the

issue should be resolved in accordance with the decision in a

related Fourth Circuit case.

     The trial court has broad discretion in determining

issues of admissibility of expert testimony and scientific

evidence, see United States v. Shay, 57 F.3d 126, 132 (1st Cir.

1995), as well as in ruling on specific questions regarding cross

examination of witnesses, see Nickerson v. G.D. Searle & Co., 900

F.2d 412, 421 (1st Cir. 1990).  In Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993), the Supreme Court

observed:

     Expert evidence can be both powerful and quite

     misleading because of the difficulty in

     evaluating it.  Because of this risk, the

     judge in weighing possible prejudice against

     probative force under Rule 403 of the present

     rules exercises more control over experts than

     over lay witnesses.



Id.   (Citations and internal quotations omitted.)

     It is commonly said that a trial judge's decision

regarding the admissibility of expert testimony will not be

disturbed absent a clear abuse of discretion.  See DaSilva v.

American Brands, Inc., 845 F.2d 356, 361 (1st Cir. 1988).  This

formulation is adequate to our case which involves judgments of

balancing and degree as to relevance, prejudice and the like.  It

is useful to note, however, that admissibility of evidence issues

can also turn on abstract questions of law, where review is de

novo, see United States v. Omar, 104 F.3d 519, 522 (1st Cir. 1997),

or on findings by the judge of specific facts, where review is for

clear error, see Mitchell v. United States, 141 F.3d 8, 17 (1st

Cir. 1998).

     In a product liability action, the burden of proving

causation rests on the plaintiff, but the defendant may--in

addition to disputing the plaintiffs' affirmative showing--present

evidence showing that some other cause accounts for the injury.

Cf. Wilder v. Eberhart, 977 F.2d 673, 676 (1st Cir. 1992), cert.denied, 508 U.S. 930 (1993); Nickerson, 900 F.2d at 420.  Of

course, a claim of alternative causation is not a free ticket to

admission of evidence; an alternative causation theory could be

incoherent or irrational, or the evidence supporting it

inadmissible.  See Craig v. A.H. Robins Co., Inc., 790 F.2d 1 (1st

Cir. 1986).  But a plausible theory of alternative causation,

supported by admissible evidence, may be highly probative,

particularly where the plaintiff's own theory of causation rests on

inference or is otherwise open to debate.  See Wilder, 977 F.2d at

676-77; Swajian v. General Motors Corp., 916 F.2d 31, 34-35 (1st

Cir. 1990).

     This takes us to the evidence at hand.  To be admissible,

evidence must of course be relevant; it must meet special

requirements if presented as expert testimony (e.g., the expert

must be qualified and the subject must be fit for expert

testimony); and it can be excluded if its unfair prejudicial

effects substantially outweigh its probative value.  See Fed. R.

Evid. 401, 702, 403.  We consider first whether the evidence in

question was admissible apart from Rule 403 and then turn to the

issue of undue prejudice.

     The first excluded evidence was the testimony of Dr.

Jones.  Dr. Jones would have testified at trial that in his

opinion, chlamydia caused Baker's PID, and he would have explained

the reasons for his opinion.  During voir dire outside of the

presence of the jury, Dr. Jones testified that he based his opinion

on the fact that Baker had PID; that scientific studies reveal that

the most common causes of PID are gonorrhea and chlamydia; that

Baker's PID was not of the acute kind caused by gonorrhea and there

was no evidence of gonorrhea; and that chlamydia was the most

common other cause of PID.  He therefore offered his opinion to a

reasonable degree of medical certainty that chlamydia had caused

Baker's PID and resulting injury.

     Dr. Jones said that his opinion was reinforced by the

fact that Baker's medical records revealed the presence of

trichomonas, a sexually transmitted disease, in 1972, because the

presence of one sexually transmitted disease tends to be correlated

with the presence of others, such as chlamydia.  He said that

Baker's specific medical injuries from PID were consistent with

damage caused by chlamydia.  Finally, he testified that his

diagnosis was strengthened by, but not dependent on, the 1996

chlamydia titers that indicated Baker had been infected with

chlamydia at some time.  Baker has not challenged Dr. Jones'

credentials as an expert or the suitability of the issue for expert

testimony.  Prejudice aside, the only remaining questions are

whether the testimony is "relevant" to an issue in controversy,

Rule 401, and rests on scientific basis, Fed. R. Evid. 702;

Daubert, 509 U.S. at 594-95.  We start with the latter issue.

     Dr. Jones'  testimony was based on a standard scientific

technique, widely used in medicine, of identifying a medical

"cause" by narrowing the more likely causes until the most likely

culprit is isolated.  Of two very likely causes of PID, Dr. Jones

eliminated one strong possibility (gonorrhea) because its symptoms

are ordinarily more serious and no indication of gonorrhea was

found.  The other likely cause (chlamydia) he deemed more probable

because Baker's symptoms were typical of this cause, she had

another sexually transmitted disease in 1972  (there is some

coincidence of such diseases), and she showed antibodies in 1996

indicating infection with chlamydia itself at some earlier time.

     Why this opinion should be regarded as "guesswork" or

without "basis" (the district court's terms) is nowhere explained

either by the judge or by Baker's brief on appeal.  Dr. Jones'

opinion rests on a scientific method, as required by Rule 702 as

construed in Daubert, 509 U.S. at 592-95.  Indeed, "differential

diagnosis" is a standard medical technique.  See, e.g., In re Paoli

R.R. Yard PCB Litigation, 35 F.3d 717, 755 (3d Cir. 1994), cert.

denied, 513 U.S. 1190 (1995).  Baker has not argued that any of Dr.

Jones' scientific premises (e.g., that chlamydia is a common cause

of PID) was so faulty that it could not even be tendered to the

jury for its consideration.

     Similarly, the testimony  is self-evidently relevant to

the case at hand; it offers a scientific explanation directly

pertinent to the central issue in the case, namely, whether the

Dalkon Shield IUD caused Baker's injury, see Fed. R. Evid. 401;

Daubert, 509 U.S. at 591-92.  Even allowing for the unlikely event

of dual causation, proof that chlamydia probably caused Baker's PID

obviously reduces the likelihood that the IUD did so.  Dr. Jones

could only assert chlamydia as the cause to a reasonable degree of

medical certainty, but little in diagnosis is certain, cf. Daubert,

509 U.S. at 590, and Rule 401 merely requires that evidence make a

contested fact more likely than it would be without the evidence

(not "more likely than not").

      Of course,  Dr. Jones'  opinion rests in some measure on

his view that the IUD could not have been the cause, but the

district judge himself agreed that that opinion was one for the

jury to weigh.  Nor is it of any importance that the jury

implicitly rejected this premise when it returned a verdict for

Baker: the jury's own conclusion was reached without knowledge that

an alternative explanation existed.  Further, even if one assumed

that the IUD could be an alternative cause, knowledge of an

alternative cause might have persuaded the jury that Baker had not

proved her claim by a preponderance of evidence.

     Dr. Jones also relied on the 1996 titer tests showing

chlamydia antibodies in Baker's blood.  But while the admissibility

of the tests themselves as evidence presents a separate issue,  Dr.

Jones said that his ultimate opinion did not depend on the tests.

Nor would exclusion of the tests from the jury's consideration have

prevented Dr. Jones from relying upon them in forming his own

opinion--although it might have led to limitations on his

testimony--since the main criterion for the facts considered by the

expert is what is customary in the scientific community.  See Fed.

R. Evid. 703.

     The district court also excluded Dr. Minkin's testimony

that chlamydia was the likely cause of Baker's injury.  Her

testimony was largely parallel to that of Dr. Jones, although she

was also prepared to say why Baker's PID symptoms did not

correspond to symptoms that IUDs could cause and to address Baker's

apparent ectopic pregnancy in 1991.  The district court's exclusion

of  Dr. Minkin's testimony seemingly depended on the same grounds

given for excluding Dr Jones' testimony.  We believe that the

exclusion was in error for the reasons already stated.

     Because the district court also barred the Trust from

cross-examining Baker's expert, Dr. Stubblefield, on the issue of

chlamydia for similar reasons, we find this ruling was also in

error.

     The more difficult question is whether the 1996 titer

tests were admissible as evidence for consideration by the jury.

These tests were the only targets of Baker's pretrial motion.  When

the ruling on the motion was deferred, the district court shifted

attention to Dr. Jones' entire alternative-causation testimony of

which the 1966 titer tests were only a part.  The tests appear to

have been excluded in the wake of the decision to exclude the

expert witness testimony, without which the titer tests would have

made no sense.

     On appeal, Baker adverts briefly (it would be too much to

say that the point is fully argued) to the notion that the tests

were too remote in time, because they had occurred in 1996 and the

relevant question was whether Baker's PID in the 1970s had been

caused by chlamydia.  Although the district court did not rest on

this ground in excluding the evidence, the objection was raised by

Baker in the district court in the in limine motion.  It is also

likely to recur in a retrial made necessary by the mistaken

exclusion of the expert testimony.

     The proof that Baker had chlamydia at some point prior to

1996 is obviously "relevant" under Rule 401 since it makes it more

likely than it would be without such evidence that she had

chlamydia in 1970 or 1975.  Although the inference that Baker had

chlamydia during the 1970s is obviously weakened by the time gap,

the titer tests were not the only basis for the inference:  rather,

they were one piece in a mosaic that included chlamydia as a

prominent cause of the symptoms admittedly suffered by Baker, the

coincident presence of another sexually transmitted disease

diagnosed in 1972, and Dr. Jones' expert opinion that other

possible causes of Baker's symptoms did not fit.

     Of course, the district court enjoys reasonable

discretion in determining whether evidence, although relevant,

should be excluded because its probative value is "substantially"

outweighed by the potential to confuse or mislead the jury.  SeeShay, 57 F.3d at 132.  Time disparities sometimes do lead to the

exclusion of evidence on this ground.  Cf. Fed. R. Evid. 609

(excluding evidence of past convictions over ten years old).

However, in this case the "confusion" risk is pretty limited since

it would be relatively easy for Baker's counsel to cross-examine on

the issue and explain to the jury the significance of the time

interval.  Cf. Daubert, 509 U.S. at 596.

     This brings us to the final objection to both the expert

testimony and the titer tests:  Baker's claim that the evidence was

properly excluded on the ground that its probative value was

substantially outweighed by its likelihood of causing unfair

prejudice to Baker.  Fed. R. Evid. 403.  Baker invoked this rubric

in her in limine motion objecting to titer tests, and the district

judge adverted to it generally.  Whether it was an intended ground

for excluding any of the evidence is not perfectly clear, but it is

argued to us on appeal, and we expressly reject it.

     On the probative value side of the balance, there is no

doubt whatever that the expert testimony, reinforced somewhat by

the titer tests, was quite important to the defense and had

substantial probative value if the defense experts were believed.

It is all very well to say, as Baker does, that the defense is free

to assert that the IUD was incapable of causing PID, or at least

did not cause it in this case.  But the opportunity to offer one

line of evidence does not justify excluding a different,

reinforcing line--and many would think that in this case the

chlamydia theory was a more concrete and affirmative explanation as

to why the defense should prevail. Cf. Wilder, 977 F.2d at 676;

Swajian, 916 F.2d at 34-35.

     We recognize the unexplained attribution to a party of a

sexually transmitted disease could have some potential for

prejudice.  But in this case it would be easy to bring out on

cross-examination that chlamydia is widespread, is easily

contracted and is not intrinsically a mark of promiscuity.  In this

context, we see little indication of unfair prejudice from the

evidence, let alone unfair prejudice "substantially" outweighing

the probative value of the expert and test evidence, as Rule 403

requires.

     This case bears no resemblance to Craig v. A.H. Robbins

Co., Inc., 790 F.2d 1 (1st Cir. 1986).  There, the evidence

excluded was of multiple sexual partners offered simply to suggest

an increased risk of infertility from non-IUD causes.  The

probative value of the testimony was limited; but, far more

important, the testimony was itself highly suggestive of

promiscuity, presenting an entirely different situation.

     The final issue in the case is the Trust's challenge to

the district court's award of prejudgment interest.  The Trust

claims that the award is inconsistent with a ruling of the federal

bankruptcy court having jurisdiction over the plan of

reorganization under which the Trust was created.  According to the

Trust, the bankruptcy court has determined that prejudgment

interest is not recoverable under the plan.

     In its answering brief, Baker agreed with the Trust that

the issue should be resolved in accordance with the Fourth Circuit

decision reviewing the bankruptcy court's ruling.  The Fourth

Circuit, we have just been told, has upheld the bankruptcy court.

In re A.H. Robins Co., Inc., No. 98-1080 slip op. (4th Cir. Aug.

31, 1998).  We therefore treat the issue as resolved for purposes

of this case by agreement of the parties.

     The judgment of the district court is vacated and the

matter is remanded for a new trial consistent with this opinion.

     It is so ordered.