Bennett v. Dalkon Shield Trust ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.
No. 98-1079
ROSIE BENNETT,
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Affirmed by unpublished per curiam opinion.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
Rosie Bennett, 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Unpublished opinions are not binding precedent in this circuit.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:
Rosie Bennett, a Dalkon Shield Claimant, appeals the district
court's order denying her motion to set aside an alternative dispute
resolution (ADR) decision. We affirm.
In 1969 or 1970, Bennett was inserted with an intrauterine device
(IUD). Within a month of insertion, she developed various medical
problems, including abdominal pain and abnormal bleeding. In 1971
Bennett underwent surgery for a pelvic abscess. At that time the IUD
was removed. Six weeks later, she underwent a total abdominal hys-
terectomy. Bennett subsequently filed a Dalkon Shield Claim assert-
ing that the Dalkon Shield caused injury.
The Dalkon Shield Claimants Trust (the Trust) made an Option 3
offer to Bennett, who rejected the offer and proceeded to alternative
dispute resolution (ADR). The ADR referee found that Bennett had
not met her burden of proving that the IUD she used was a Dalkon
Shield. The referee noted that, unlike other IUD's, the Dalkon Shield
had only one tail string. Bennett was equivocal about whether her
IUD had one or more strings. Nowhere do the medical records state
what type of IUD Bennett used, and the operative notes from the sur-
gery for the abscess state that "strings of IUD are visualized."
Because Bennett failed to establish that her IUD was a Dalkon Shield,
the referee found that she was entitled to no compensation for her
injuries.
Bennett then moved the district court to vacate the referee's deci-
sion. The district court denied her motion, and 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.
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Dalkon Shield Claimants Trust), 112 F.3d 160, 163 (4th Cir. 1997).
The ADR Agreement which Bennett 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
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. 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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