Harmon v. Dalkon Shield Trust ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.
No. 98-1543
LULA MAE HARMON,
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: September 15, 1998
Decided: October 16, 1998
Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lula Mae Harmon, Appellant Pro Se. Orran Lee Brown, Sr.,
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Unpublished opinions are not binding precedent in this circuit.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:
Lula Mae Harmon, a Dalkon Shield Claimant, appeals the district
court's order denying her motion to set aside an alternative dispute
resolution (ADR) decision. We affirm.
Harmon was inserted with an intrauterine device (IUD) in 1969 and
again in 1971. She claimed that the IUD was a Dalkon Shield that
caused embedment, pelvic inflammatory disease, and uncontrolled
bleeding. Harmon chose to resolve her claim through ADR. The
Dalkon Shield Claimants Trust presented evidence that the Dalkon
Shield was not on the market in 1969, when Harmon's first IUD was
inserted. Further, medical records reveal that the two IUDs that Har-
mon used were Lippes Loops instead of Dalkon Shields. Harmon
presented the affidavit of a nurse stating that a physician inserted Har-
mon with a Dalkon Shield in 1971. The ADR referee relied on medi-
cal evidence in deciding that Harmon had not met her burden of
proving that she used a Dalkon Shield. Therefore, Harmon was not
entitled to recovery for injury caused by the Dalkon Shield.
Harmon moved to vacate the ADR decision. The district court
denied the motion, finding that Harmon was simply dissatisfied with
the referee's decision and that the referee had not committed any
plainly egregious and patently unfair procedural errors in reaching her
decision. This appeal followed.
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 Harmon signed and the ADR Rules pro-
vide no mechanism for judicial review of ADR decisions. Nonethe-
less, the district court may grant relief from an ADR decision "``where
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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 type
envisioned by Bledsoe. Rather, the referee made a reasoned determi-
nation based on the evidence of record.
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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