Higgins v. Dalkon Shield Trust ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: A. H. ROBINS COMPANY,
Debtor.
DIANE HIGGINS,
No. 98-1076
Claimant-Appellant,
v.
DALKON SHIELD CLAIMANTS TRUST,
Trust-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge;
Blackwell N. Shelley, Bankruptcy Judge.
(CA-85-1307-R)
Submitted: July 31, 1998
Decided: August 20, 1998
Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Diane Higgins, Appellant Pro Se. Orran Lee Brown, Jr., DALKON
SHIELD CLAIMANTS TRUST, Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Diane Higgins, a Dalkon Shield Claimant, appeals the district
court's order denying her motion to vacate an alternative dispute reso-
lution (ADR) decision. Because the district court did not abuse its dis-
cretion, we affirm.
Higgins was inserted with a Dalkon Shield in August 1972. Medi-
cal records reveal that she had menstrual periods beginning on
November 22, 1972, and December 22, 1972. The record states that
she used the Dalkon Shield until it was expelled on an unspecified
date in December 1972. She became pregnant and had an abortion on
February 28, 1973. One record states that her uterus at the time of the
abortion was a size indicating ten weeks' gestation.
Higgins filed a Dalkon Shield Claim asserting that she suffered
excessive bleeding, pregnancy with the Dalkon Shield in place, and
pain. She proceeded to ADR. The Dalkon Shield Claimants Trust
maintained that Higgins suffered no injury attributable to Dalkon
Shield use.
The ADR referee found after a hearing that the Dalkon Shield was
expelled prior to Higgins' pregnancy. Therefore, she was not entitled
to compensation for the pregnancy/abortion episode. However, Hig-
gins' testimony and medical records established a"dramatic" episode
of bleeding in late November 1972, around the time that the device
became dislodged and eventually was expelled. The referee awarded
Higgins $4000 for severe pain and bleeding caused by the Dalkon
Shield.
Higgins, who testified that she believed she became pregnant while
the Dalkon Shield was in place, moved in the district court for an
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order vacating the referee's decision. The district court denied the
motion, and Higgins appealed.
The decision of an ADR referee is "binding and final," and a
Dalkon Shield Claimant who proceeds to ADR generally relinquishes
the right to judicial review. See In re A. H. Robins, Co. (Bledsoe v.
Dalkon Shield Claimants Trust), 112 F.3d 160, 163 (4th Cir. 1997).
The ADR Agreement which Higgins signed and the ADR Rules pro-
vide no mechanism for judicial review of a referee's decision. None-
theless, the district court may grant relief from an ADR decision
"``where the moving party demonstrates flagrant referee misconduct
by clear and convincing evidence.'" Id. We review the district court's
refusal to vacate an ADR decision for abuse of discretion. See id.Here, there was no abuse of discretion. The district court correctly
found that the referee did not commit flagrant misconduct of the sort
envisioned by Bledsoe. Rather, the referee made a reasoned determi-
nation based on the evidence of record.
We accordingly affirm the denial of the motion to vacate. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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