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.