Velu v. Dalkon Shield Trust ( 1999 )

Petition for rehearing granted, opinion filed 8/20/98 withdrawn,
motion to dismiss granted, and appeal dismissed by unpublished
order filed 9/8/99.
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: A. H. ROBINS COMPANY,
INCORPORATED,
Debtor.
No. 98-1308
GERALDINE VELU,
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-85-1302-R)
Submitted: July 31, 1998
Decided: August 20, 1998
Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Geraldine Velu, 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Unpublished opinions are not binding precedent in this circuit.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:
Geraldine Velu, a disappointed Dalkon Shield Claimant, appeals
from the district court's order denying her motion to vacate an alter-
native dispute resolution (ADR) decision. Because the district court
did not abuse its discretion, we affirm.
Velu claimed that the Dalkon Shield caused uncontrollable bleed-
ing, pelvic inflammatory disease (PID), and infertility. None of the
records she submitted to the Dalkon Shield Claimants Trust (Trust)
substantiated her claims of PID or infertility as the result of her using
the Dalkon Shield. Therefore, the Trust extended her an offer based
only on uncontrolled bleeding.
Velu rejected the offer and elected to proceed to ADR. In doing so,
she agreed that the ADR process would be governed by the Second
Amended ADR Rules and that the referee's decision would be final
and binding.
A hearing before the ADR referee was scheduled for June 26,
1997. In accordance with ADR Rule 8, the Trust submitted to the ref-
eree those documents it proposed to present as evidence at the hear-
ing. Included were Velu's Option 3 claim form and all medical
records she had previously sent to the Trust. Velu was served with
copies of these documents. Velu also submitted to the referee six
medical records which were duplicative of the material submitted by
the Trust. None of the records show that Velu suffered from PID
when the Dalkon Shield was in place.
The referee found that Velu was entitled to $6000 in damages for
uncontrolled bleeding. The referee found that Velu did not satisfy her
burden of proof regarding PID and infertility, however.
2
Following the hearing, Velu, for the first time, produced a medical
record from October 1973 documenting PID while wearing the
Dalkon Shield. She asked the Trust to agree to have the referee recon-
sider his decision in light of this new evidence. The Trust refused, and
Velu then asked the district court to vacate the ADR decision so that
she could introduce the October 1973 record at a new ADR proceed-
ing.
The district court denied the motion. Velu conceded that, prior to
the ADR hearing, she received copies of the documents that the Trust
intended to present at the ADR proceeding. She was on notice that
none of the Trust's materials documented PID. Further, none of the
material that Velu herself submitted to the referee contained the criti-
cal document. Velu did not assert until after the referee's decision that
a record was missing. The court concluded that Velu had not met her
burden of proving all the claimed injuries. Because Velu did not dem-
onstrate by clear and convincing evidence that the referee had exhib-
ited flagrant misconduct in reaching his decision, the district court
denied the motion to vacate the ADR decision.
The decision of an ADR referee is "binding and final," and a
Dalkon Shield Claimant generally relinquishes the right to judicial
review. See In re A. H. Robins, Inc. (Bledsoe v. Dalkon Shield Claim-
ants Trust), 112 F.3d 160, 163 (4th Cir. 1997). The ADR Agreement
which Velu signed and the Second Amended ADR Rules by which
she agreed to be bound provide no mechanism for judicial review of
a referee's decision. Nonetheless, the district court may grant relief
from an ADR decision "`where the moving party demonstrates fla-
grant 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 flagrant misconduct. The referee decided the
matter on the basis of the evidence before him. Velu's negligence in
failing to procure the critical document until after the hearing may not
be imputed to the referee. In the absence of flagrant misconduct by
the referee, we find that the district court did not abuse its discretion
and affirm the order denying Velu's motion to vacate the ADR deci-
sion.
3
We dispense with oral argument because the facts and legal conten-
tions are fully presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
4