Galvin, Paula J. v. Eli Lilly & Co

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2006 Decided June 8, 2007

No. 05-7134

PAULA J. GALVIN,
APPELLANT

v.

ELI LILLY AND COMPANY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01797)

Aaron M. Levine argued the cause for appellant. With him
on the briefs was Brandon J. Levine.

James J. Dillon argued the cause and filed the brief for
appellee.

Before: GINSBURG, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

Dissenting opinion filed by Circuit Judge ROGERS.
 2

GINSBURG, Chief Judge: Paula J. Galvin appeals the
summary judgment entered by the district court in favor of
defendant Eli Lilly and Company. Galvin claims she suffered
injuries resulting from her exposure to Diethylstilbesterol (DES)
manufactured by Lilly. The district court concluded Galvin
failed to present sufficient evidence to demonstrate she was
exposed to DES made by Lilly rather than by another company.
We affirm the judgment.

I. Background

DES, also known as stilbesterol, is a synthetic estrogen that
was prescribed in the middle third of the twentieth century to
prevent miscarriage and premature birth. Gassmann v. Eli Lilly
& Co., 407 F. Supp. 2d 203, 205 (D.D.C. 2005). Later research
revealed that the children of women who took DES while
pregnant are more likely to have certain health problems,
including infertility. Id.

In 1964 and 1965 Elizabeth Keller, while pregnant with
Galvin, was prescribed 25 mg DES pills, which she purchased
from the Crowell Ash Drug Store in Pittsburg, Kansas. Some 40
years later, Galvin filed this suit against Lilly, claiming Keller
had purchased DES manufactured by Lilly and she was infertile
as a result of her exposure to the drug in utero.

After discovery Lilly moved for summary judgment,
arguing that Galvin could not show the DES Keller had taken
was more likely than not made by Lilly. The Company provided
evidence from various directories of drug manufacturers (the
1964-65 Blue Book and the 1964 and 1965 editions of the Red
Book, respectively) listing 32, 104, or 97 firms that
manufactured DES in the relevant years. According to Lilly,
Galvin had presented only two items of evidence relevant to
product identification: Keller’s description of the pill she took
 3

and a statement by Bill Waltrip, a pharmacist who had worked
at the Crowell Ash Drug Store, discussing the store’s stocking
practices and suggesting the only DES it carried in the 1960s
was made by Lilly. Keller had described the pill she took as a
round “little white pill with a cross” and had answered “no”
when asked whether she could remember (1) any other markings
on the pill, (2) whether it had any coating, (3) what package the
pill came in, or (4) anything about the label on the package.
Lilly contended Keller’s description of the pill was insufficiently
specific; it identified not only Lilly’s pill but also two other
pills, one manufactured by Squibb (now Bristol-Myers Squibb)
and one manufactured by Marsh Parker. As for the Waltrip
statement, Lilly noted Waltrip did not start working for the
Crowell Ash Drug Store until 1967 — two years after Keller had
last purchased DES — and therefore lacked relevant personal
knowledge.

In response Galvin sought to introduce supplemental
affidavits by Keller and Waltrip. Keller’s supplemental affidavit
stated “[t]o the best of my recollection, the [DES] pills were
small, round, white, and cross-scored without any writing on
either side of the pill” and, referring to a photograph of a DES
pill manufactured by Lilly, added “[a]s I stated in my deposition,
the attached photograph shows the pills I ingested.” Waltrip’s
supplemental affidavit stated that in 1967 he talked to other
pharmacists at the drugstore and observed the practices and
procedures of the store, from which it was apparent to him that
the practices and procedures in 1967 did not differ from those
followed in 1964-65. Galvin also noted she had presented
expert testimony indicating no other DES pill matched Keller’s
description and evidence suggesting Lilly had the “lion’s share”
of the market. She also argued that her mother could not have
purchased either the Squibb pill or the Marsh Parker pill because
the Squibb pill had “Squibb” imprinted on the side and therefore
 4

did not match her description and the Marsh Parker pill was no
longer sold in 1965.

The district court refused to consider Keller’s supplemental
affidavit because “it was not included in the discovery ....
Plaintiff is not entitled to recharacterize and modify to her
advantage statements made in the course of depositions after
Defendant has relied on those depositions in drafting a
dispositive motion.” The court similarly refused to consider the
Waltrip supplement, calling it an inappropriate “post hoc
recalibration.” The court then concluded Kansas law governed
the claim, wherefore Galvin had to prove by a preponderance of
the evidence that the Lilly product was the actual cause of her
injury, and she had not done so. Although the Squibb pill could
be eliminated as a possible culprit because it was for a different
dosage, the Marsh Parker pill could not be discounted.
Therefore, even if Keller’s supplemental affidavit were
considered, the court reasoned, there was no evidence
suggesting the Marsh Parker pill differed in appearance from the
Lilly pill, and Galvin’s contention that Marsh Parker was not in
the market at the time was refuted by its listing in the Red Book.
Galvin had also submitted two documents indicating the market
shares of various DES manufacturers during 1964 and 1965 that
did not identify Marsh Parker as a producer, but the district court
rejected them because it appeared they did not encompass the
Kansas market. The court therefore concluded Galvin “cannot
demonstrate that she was injured by Lilly DES rather than DES
produced by a different company” and accordingly granted
summary judgment in favor of the defendant.

Galvin filed a motion to amend the judgment, arguing in
relevant part that the court had erred in refusing to consider the
supplemental affidavits. The district court denied the motion,
opining that Keller’s supplemental affidavit “fundamentally
change[d] the nature of [her] earlier deposition testimony” and
 5

that it was in any event irrelevant. As for Waltrip’s
supplemental affidavit, the court said, “Plaintiff cannot receive
Defendant’s motion for summary judgment and then go in
search of new evidence with which to attack Defendant’s
arguments. This contradicts the very notion of a discovery
process.”

II. Analysis

On appeal, Galvin challenges the district court’s refusal to
consider the two supplemental affidavits and its grant of
summary judgment for Lilly.

A. Admissibility of Supplemental Affidavits

A party opposing summary judgment may submit affidavits
in support of its position provided such affidavits meet the
requirements of Federal Rule of Civil Procedure 56(e).
Virtually every circuit has adopted a form of the so-called “sham
affidavit rule,” which precludes a party from creating an issue of
material fact by contradicting prior sworn testimony unless the
“shifting party can offer persuasive reasons for believing the
supposed correction” is more accurate than the prior testimony.
Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123
(D.C. Cir. 1991); see Cleveland v. Policy Mgmt. Sys. Corp., 526
U.S. 795, 806-07 (1999) (collecting cases). See generally 10A
CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY
KANE, FEDERAL PRACTICE & PROCEDURE § 2726, at 448-52 (3d
ed. 1998).* If the supplemental affidavit does not contradict but

*
Although we have not formally addressed the standard applicable to
review of a district court decision to treat an affidavit as a sham,
Pyramid suggests the determination is part of our overall review of
summary judgment and accordingly subject to de novo review. See
924 F.2d at 1123-24. Similarly, the Second Circuit has implied this
 6

instead clarifies the prior sworn statement, then it is usually
considered admissible. See, e.g., Selenke v. Med. Imaging of
Colo., 248 F.3d 1249, 1258 (10th Cir. 2001); Slowiak v. Land
O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir. 1993); see also Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1296 n.14 (D.C. Cir. 1998)
(en banc); WRIGHT, MILLER, & KANE, supra.

The district court refused to consider the supplemental
Keller and Waltrip affidavits on the ground it was improper for
the affiants to “recharacterize” their prior testimony after the
close of discovery. We agree that “parties’ opportunism should
not readily imperil summary judgment,” Pyramid, 924 F.2d at
1124; see also Cowan v. Prudential Ins. Co. of Am., 141 F.3d
751, 756 (7th Cir. 1998) (“[A] deposition is the time for the
plaintiff to make a record capable of surviving summary
judgment — not a later filed affidavit”), and also recognize that
a district court has broad discretion with respect to discovery,
see Hussain v. Nicholson, 435 F.3d 359, 363 (D.C. Cir. 2006).
A supplemental affidavit filed by an interested party should not
be deemed inadmissible solely because it was filed in response
to a motion for summary judgment, however; the important
considerations are whether the affidavit contradicts a prior
sworn statement without justification or the filing party breached
its obligations in discovery. See FED. R. CIV. P. 37.

determination is a matter of law, while the First, Sixth, Seventh,
Tenth, and Eleventh Circuits have treated this issue as an evidentiary
one subject to review for abuse of discretion. Compare Langman
Fabrics v. Graff Californiawear, Inc., 160 F.3d 106, 112 (2d Cir.
1998), with Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 21
(1st Cir. 2000); Briggs v. Potter, 463 F.3d 507, 512-13 (6th Cir.
2006); Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055-56 (7th
Cir. 2000); Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir.
2002); Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1342-43
(11th Cir. 2000).
 7

Galvin contends the supplemental affidavits do not
contradict but merely clarify the affiants’ prior statements.
Because we conclude there would not be a genuine dispute over
a material fact even if the supplemental affidavits were
admitted, we find it unnecessary to rule upon their actual
admissibility. Were it otherwise, we would have to determine
whether these affidavits contradict or clarify prior statements
and possibly also whether the sham affidavit rule should be
applied to a non-party witness.

B. Summary Judgment

We review the district court’s grant of summary judgment
de novo. See Flynn v. R.C. Tile, 353 F.3d 953, 957 (D.C. Cir.
2004). Summary judgment is appropriate only if “there is no
genuine issue as to any material fact and ... the moving party is
entitled to a judgment as a matter of law,” FED. R. CIV. P. 56(c);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
there is such a “genuine issue” if “a reasonable jury could return
a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Applying that standard, “[w]e view the evidence in the light
most favorable to the nonmoving party and draw all reasonable
inferences in its favor.” Mastro v. Potomac Elec. Power Co.,
447 F.3d 843, 850 (D.C. Cir. 2006).

It is uncontested on appeal that Kansas law governs this
case and Galvin’s burden is therefore to prove Lilly’s product
was more likely than not the cause of her injury. See Lyons v.
Garlock, Inc., 12 F. Supp. 2d 1226, 1228-29 (D. Kan. 1998);
Lenherr v. NRM Corp., 504 F. Supp. 165, 168 (D. Kan. 1980);
see also Yount v. Deibert, 147 P.3d 1065, 1072-74 (Kan. 2006);
Mays v. Ciba-Geigy Corp., 661 P.2d 348, 360 (Kan. 1983); cf.
Sindell v. Abbott Labs., 607 P.2d 924, 936-38 (Cal. 1980)
(holding DES manufacturers liable under California law in
proportion to their market shares). This she may do by means
 8

of circumstantial evidence, see Arterburn v. St. Joseph Hosp. &
Rehab. Ctr., 551 P.2d 886, 890 (Kan. 1976), but the
“circumstances shown must justify an inference of probability
as distinguished from mere possibility.” Mays, 661 P.2d at 360;
see also Arterburn, 551 P.2d at 892 (“There must be a rational
basis for concluding it is more probable than not that the
defendant’s negligence caused the plaintiff’s damage. It is not
necessary for the plaintiff to eliminate all other possible causes
of his injury in order to present a jury question.”). Therefore, to
avoid summary judgment Galvin need provide only evidence
sufficient for a reasonable juror, drawing all reasonable
inferences in her favor, to conclude she was more probably than
not exposed to DES manufactured by Lilly. See Shields v. Eli
Lilly & Co., 895 F.2d 1463, 1465 (D.C. Cir. 1990); Yount, 147
P.3d at 1074. It follows that, because Lilly presented an
alternative theory, Galvin — though she need not disprove that
alternative — must give some credible reason for a juror to
accept her theory over the alternative. Cf. Siegel v. Mazda
Motor Corp., 878 F.2d 435, 439 (D.C. Cir. 1989) (“When the
record thus contains competing, unrebutted hypotheses
consistent with driver error, proof that a mechanical defect was
merely ‘capable of’ causing the accident does not satisfy the
standard ... that such an explanation be ‘more probable than
not’”).

Galvin contends she met this standard by presenting (1)
Keller’s physical description of the pills she took, (2) Waltrip’s
testimony regarding practices at the drugstore where Keller
purchased her DES, (3) expert testimony suggesting the Lilly
pill is unique, (4) a hospital (“labor and delivery”) record
indicating Keller took “Stilb 25 mg,” (5) testimony suggesting
the wholesaler that supplied the Crowell Ash Drug Store would
have provided DES made by Lilly to fill Keller’s prescription,
and (6) evidence relating to Lilly’s share of the DES market.
Galvin acknowledges these “proofs might be peripheral,
 9

angulated and fragmented,” but contends they interlock to form
a “mosaic” showing she was exposed to Lilly’s product. Just as
a jigsaw puzzle cannot be solved if a piece is missing, however,
Galvin cannot survive summary judgment if there is a gap in the
causal chain between Lilly and Keller.

Galvin’s evidence suggests two possible theories linking
Lilly to Keller. First, Keller’s description of the pills she took,
in combination with Galvin’s evidence negating alternatives,
might be sufficient. Second, the evidence regarding the sales
and stocking practices of the Crowell Ash Drug Store, together
with the evidence regarding the purported business practices of
the store’s purported supplier of DES, might do the job. There
are, however, problems with each theory.

1. The Description

Keller described the pill she took as small, round, white,
and cross-scored, and she picked the Lilly pill out of a photo
array. Of the approximately 20 pills she was shown, however,
no other pill was round, white, and cross-scored and Keller
admitted that seeing the photos probably reminded her of what
the pill she took looked like. In any event, as Lilly points out,
her description is insufficient to allow a reasonable juror to
conclude Keller purchased Lilly’s brand of DES because it also
describes the Marsh Parker pill.*

*
Galvin claims she was blindsided by Lilly’s evidence of the Marsh
Parker pill, but her objection comes too late. Lilly introduced Marsh
Parker as an alibi pill in its motion for summary judgment, supported
by deposition testimony given in a different case by Robert Anderson,
a pharmacist in Massachusetts. Galvin suggests that Lilly’s failure to
disclose the deposition earlier was unfair because Galvin had asked
Lilly during discovery to disclose the identity of any individuals who
had information regarding possible alternative pills and Lilly had not
 10

Lilly reasons that, because the Marsh Parker pill shows
Keller’s description is not unique to Lilly’s product, it might
apply to any number of DES pills manufactured in 1964-65.
Lilly’s point is that Keller’s description could not prove she took
a Lilly pill even if Galvin could prove Keller did not purchase
the Marsh Parker pill. This approach implies a burden shifting
sequence for product identification through physical description:
First, Galvin must provide a physical description that matches
the Lilly pill. Then, to avoid judgment, Lilly must show that at
least one other DES pill matches Keller’s description, in which
event Galvin, finally, must show not only that Keller did not
take the matching pill(s) identified by Lilly but also that Keller
did not take any other pill identified by Lilly as having been in
the market but not otherwise described. Because we hold that
Galvin has not eliminated the Marsh Parker pill from
consideration, we reach no conclusion regarding Lilly’s
approach.

Keller’s supplemental affidavit, assuming it was admissible,
does not help Galvin eliminate the Marsh Parker pill. Although
the supplemental affidavit includes a photograph of a Lilly DES
pill as a purported description of the pills Keller took, it does not
indicate that Keller selected the Lilly pill in a pairwise
comparison against the Marsh Parker pill. The photograph is
therefore only a visual representation of Keller’s earlier verbal
description, not her identification of the Lilly pill, and as such

listed Anderson. She also notes that Anderson gave an affidavit after
summary judgment in this case disavowing his prior testimony
regarding the Marsh Parker pill. Galvin, however, did not object to
the Anderson testimony at summary judgment, and the district court’s
rejection of Anderson’s post-judgment affidavit was not an abuse of
discretion. See Thompson v. Evening Star Newspaper Co., 394 F.2d
774, 777 (D.C. Cir. 1968).
 11

does not show that Keller took a pill manufactured by Lilly
rather than by Marsh Parker.

Galvin also presented the affidavits of Harold Sparr and
Philip Cafferty stating that no company other than Lilly
manufactured a round, white, cross-scored DES pill. Rule 56(e)
requires admissible affidavits to be made “on personal
knowledge, ... set forth such facts as would be admissible in
evidence, and ... show affirmatively that the affiant is competent
to testify to the matters stated therein.” Sparr and Cafferty do
not lay claim to the personal knowledge necessary to meet this
requirement. Sparr recounts that he is a former President of the
Massachusetts Board of Registration in Pharmacy, former
President of the Massachusetts College of Pharmacy and Health
Sciences Alumni Association, and twice a delegate to the U.S.
Pharmacopoeia, which sets standards for all medicines and other
healthcare products manufactured and sold in the United States,
see The United States Pharmacopeial Convention, Inc., About
USP, http://www.usp.org/aboutUSP. Cafferty is a pharmacist
and former Eli Lilly district manager for Rhode Island and
Massachusetts. Although well-credentialed experts, their self-
described experiences are almost exclusively limited to New
England; the only experiences remotely suggesting that either
might have any knowledge of the DES market outside New
England are, in Sparr’s case, attendance at the U.S.
Pharmacopoeia, but he does not indicate when he was a delegate
nor what his role was, and in Cafferty’s, his position at Lilly,
though he provides no information about it to suggest as much.
Nothing in their affidavits do anything to establish their
competence to testify as to what brands of DES were available
in Kansas in 1964-65. No reasonable juror therefore could find
their assertions regarding the DES market credible with
reference to any place other than New England.
 12

Galvin suggests the Marsh Parker pill was unavailable in
Kansas in 1964-65 because, of the three drug directories in the
record, only the Red Book lists Marsh Parker as a manufacturer
then. Furthermore, market share analyses done for DES
litigation in New York and California do not include the Marsh
Parker pill.

This evidence would not permit a reasonable juror to infer
that Marsh Parker was not in the Kansas market during the
relevant time period. The market share analysis in the
California litigation concerned a different product — 5 mg pills,
not the 25 mg pills at issue in this case — and it is unclear
whether the market being evaluated even included Kansas.
California law requires market share liability to be calculated
using an analysis of the “relevant DES market,” Brown v.
Superior Court, 751 P.2d 470, 486 (Cal. 1988), and the record
does not indicate whether the relevant market for that litigation
is the California market, some smaller local or larger regional
market, or the national market. The market share analysis used
in the New York litigation was national in scope, see Hymowitz
v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y. 1989), but a
reasonable juror could not infer anything from the one page
Galvin put into the record. That page covers only about 30
percent of the market during the relevant time; Lilly represents
and Galvin does not deny that only 56 percent of the market was
allocated to specific companies even in the complete analysis.
Furthermore, the page we have appears to be an alphabetical
listing of manufacturers from “H” to “Re,” but many of the
listed manufacturers are said to have been “granted summary
judgment in the NY Market Share proceeding” (whatever that
may be) and have no market share indicated; certain other
manufacturers have no market share indicated without
explanation. A reasonable juror therefore could not infer
anything from Marsh Parker’s absence from the list, and would
have no basis for concluding Marsh Parker’s national market
 13

share was not part of the unallocated 44 percent. Finally, Galvin
concedes the Physicians’ Desk Reference (PDR), which she put
into the record, is not an exhaustive list of manufacturers;* nor
does she challenge the accuracy of the 1964 and 1965 Red
Books in which Marsh Parker is listed.

Galvin does argue that, because the 1964 and 1965 Red
Books do not distinguish between regional and national
manufacturers or contain any information about “availability,
popularity or accessibility,” no reasonable juror could infer from
them that Marsh Parker then sold 25 mg DES pills in the Kansas
market. Relatedly, Galvin suggests Lilly must provide evidence
showing Marsh Parker was stocked at the Crowell Ash Drug
Store. It is Galvin’s burden, however, to show Keller more
likely than not took DES manufactured by Lilly; noting that a
listing in the Red Book is consistent both with Marsh Parker
selling in Kansas and not selling in Kansas does not help meet
that burden.

*
Galvin nonetheless argues that Lilly’s exclusive listing in the PDR,
which she calls the “Bible of Drugs,” should allow a reasonable juror
to infer that Lilly was the market leader in DES, or at least had a
greater market share than did Marsh Parker. The dissent relatedly
suggests Marsh Parker’s absence from the PDR and the Blue Book
allows the inference that “Marsh Parker was not a major producer of
DES during the relevant period.” For this to be a reasonable inference
from the materials cited, however, there would have to be evidence
indicating how the Blue Book and the PDR were compiled. If there
were evidence that the winnowing criterion was market share, then the
inference would indeed be reasonable, but there is no such evidence
in the record. (In fact, Galvin’s Reply Brief implies a listing in the
PDR had to be purchased.) On the present record, the only thing that
reasonably can be inferred from the Blue Book, the Red Book, or the
PDR is that listed drugs were produced by the indicated
manufacturer(s) at the time of publication.
 14

Even if Marsh Parker was in the relevant market, Galvin
suggests the evidence of Lilly’s dominant market share would
allow a reasonable juror to infer that Keller probably purchased
a Lilly pill.* The case law on this issue is mixed, compare, e.g.,
Smith v. Rapid Transit, 58 N.E.2d 754, 755 (Mass. 1945), with
Kramer v. Weedhopper of Utah, Inc., 490 N.E.2d 104, 107-08
(Ill. App. Ct. 1986), though we understand courts usually reject
the argument Galvin is making. See, e.g., FREDERICK SCHAUER,
PROFILES, PROBABILITIES, AND STEREOTYPES 81 (2003). But
see Ronald J. Allen & Brian Leiter, Naturalized Epistemology
and the Law of Evidence, 87 VA. L. REV. 1491, 1524-25 (2001).
See generally Jonathan J. Koehler, When Do Courts Think Base
Rate Statistics Are Relevant?, 42 JURIMETRICS J. 373 (2002).
Even if we were, however, to conclude that statistical evidence

*
This argument is reminiscent of the familiar Blue Bus hypothetical,
a popular topic among commentators. See, e.g., Richard A. Posner,
An Economic Approach to the Law of Evidence, 51 STAN. L. REV.
1477, 1508-10 (1999); Richard W. Wright, Causation, Responsibility,
Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble
Bush by Clarifying the Concepts, 73 IOWA L. REV. 1001 (1988). One
formulation of the hypothetical is as follows:

While driving late at night on a dark, two-lane road, a person
confronts an oncoming bus speeding down the center line of
the road in the opposite direction. In the glare of the
headlights, the person sees that the vehicle is a bus, but he
cannot otherwise identify it. He swerves to avoid a collision,
and his car hits a tree. The bus speeds past without stopping.
The injured person later sues the Blue Bus Company. He
proves, in addition to the facts stated above, that the Blue Bus
Company owns and operates 80% of the buses that run on the
road where the accident occurred. Can he win?

Charles Nesson, The Evidence or the Event? On Judicial Proof and
the Acceptability of Verdicts, 98 HARV. L. REV. 1357, 1378-79 (1985).
 15

could by itself establish causation for the purpose of summary
judgment, Galvin would still need to adduce statistics indicating
it was more likely than not that Keller took pills manufactured
by Lilly.

Galvin points to four pieces of evidence relating to Lilly’s
presence in the DES market. First, according to a market share
analysis constructed for an unidentified lawsuit in New York,
Lilly had 28.9 percent of the national market for 25 mg DES
pills in 1964 and 27.5 percent in 1965. Second, as mentioned
above, an analysis concerning 5 mg pills constructed for a
lawsuit in California showed Lilly had a 47.8 percent share in
1964 and a 48.9 percent share in 1965 in some unspecified
geographical market. Third, Galvin presented the 1960
testimony of a Lilly vice president that Lilly produced
approximately 75 percent of the stilbesterol consumed in the
United States. The probative value of this statement is
essentially nil, however, because most stilbesterol was
consumed by animals. Finally, Galvin cites the listing for
diethylstilbesterol in the 1965 PDR, which identifies only Lilly
as a manufacturer. Although Galvin concedes the PDR listing
does not prove Lilly was the only manufacturer of DES that
year, she does contend a reasonable juror could infer that Lilly
was the dominant producer in the national market.

Based upon this evidence, a reasonable juror could not infer
the probability Keller took a pill manufactured by Lilly is
greater than 50 percent. Most of the evidence presented either
does not directly address a relevant product or geographic
market or, in the case of the PDR, is simply uninformative on
the question whether Lilly accounted for more than 50 percent
of the market. The most probative evidence is clearly the
national market share analysis used in the New York litigation,
and it suggests the probability that Keller purchased a Lilly pill
is less than 30 percent — well below the “more likely than not”
 16

standard. On this record, a reasonable juror could not conclude
Lilly was more likely than not the manufacturer of the pills
Keller took.

Finally, Galvin argues in essence that the whole of her
evidence is greater than the sum of its parts. Put another way,
she argues a juror could reasonably infer the white cross-scored
pill Keller took was more likely manufactured by Lilly than by
Marsh Parker because Lilly’s share of the market for round
white cross-scored DES pills was greater than Marsh Parker’s at
the relevant time. This argument may be consistent with our
decision in Shields, see 895 F.2d at 1466, but Galvin simply has
not provided the evidence — market share data for the Marsh
Parker pill in a relevant market — necessary for a reasonable
juror to conclude that a Lilly pill was probably the cause of her
injury. She does submit a page from a market share analysis
performed for New York litigation that reports Lilly had
approximately 28-29 percent of the market during the relevant
time and does not include Marsh Parker at all but, for the
reasons noted above, no reasonable juror could infer anything
from Marsh Parker’s absence from that analysis.

2. Business Practices

Galvin makes two related arguments based upon evidence
of business practices. She first notes that, according to the
Waltrip affidavits, the Crowell Ash Drug Store sold only Lilly’s
brand of DES in the 1960s; therefore, when Keller purchased her
DES, she must have received Lilly’s product. The second
argument is more complicated. Although her doctor’s written
prescription is not available, her labor and delivery record
suggests he prescribed her “Stilb 25 mg,” which Galvin
contends would allow a reasonable juror to conclude the
underlying prescription did not specify a particular brand. Other
evidence suggests Lilly wholesalers provided Lilly products to
 17

pharmacies when they received orders for drugs not specified by
brand name. Finally, Waltrip in his affidavit states the Crowell
Ash Drug Store ordered its DES from Pennington Wholesale
Drug, which was a Lilly wholesaler. Galvin claims this
evidence would make it reasonable for a juror to infer that
Keller’s doctor prescribed DES without specifying a brand,
which led the Crowell Ash Drug Store to order DES from
Pennington without specifying a brand, which then caused
Pennington to provide DES manufactured by Lilly.

Both theories depend upon the Waltrip testimony, which the
district court correctly held was inadmissible pursuant to Rule
56(e). As previously mentioned, Waltrip did not become a
pharmacist until 1967 and he does not suggest he was personally
familiar with the Crowell Ash Drug Store’s stocking practices
in 1964-65. Although his supplemental affidavit notes that upon
arriving at the drugstore in 1967, he talked to and took
instructions “from other pharmacists and observed the practices
and procedures of the store, as they existed in the years prior,”
that demonstrates only that Waltrip’s knowledge of practices in
1965 is based upon inadmissible hearsay.

Galvin suggests Waltrip’s statement is reducible to
admissible form as evidence of a routine practice, presumably
pursuant to Federal Rule of Evidence 406.* Even if it is, that
would not cure Waltrip’s lack of personal knowledge for the

*
Rule 406 states:

Evidence of the habit of a person or of the routine practice of
an organization, whether corroborated or not and regardless
of the presence of eyewitnesses, is relevant to prove that the
conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.
 18

relevant time.* Galvin assumes Waltrip could reasonably infer
the Crowell Ash Drug Store’s stocking practices in 1967 were
the same as its practices in 1965, but she cites no authority
supporting this counter-intuitive proposition, nor has she
presented any evidence suggesting the practice did not change
in the interim. Merely to assume a practice in 1967 to have been
the same as it was in 1965 is not reasonable, and we accordingly
find the Waltrip testimony unhelpful to Galvin in opposing
summary judgment.

So to say is not, as Galvin claims, to “g[ive] Lilly the
benefit of the inference that the drugstore underwent a
revamping or overhaul of its regular practices of ordering and
stocking.” We adopt a neutral posture, inferring neither change
nor continuity at the drugstore. Still, a reasonable juror must
have some reason to believe the practice followed in 1967 was
the same as the practice followed in 1965. Galvin has provided
none, and thus has failed to carry her burden as the plaintiff.

III. Conclusion

A reasonable juror considering only the evidence that
satisfies the requirements of Rule 56(e) could not have found it
more probable than not that Galvin ingested DES manufactured
by Lilly. This remains so even if the supplemental affidavits of
Keller and Waltrip are admissible. Accordingly, the judgment
of the district court is
Affirmed.

*
Our dissenting colleague suggests Waltrip’s testimony is bolstered
by the testimony of Sparr and Cafferty regarding Lilly’s stocking
practices. We fail to see how. Sparr and Cafferty do not claim to
know anything about the Crowell Ash Drug Store’s supplier in 1965,
and what they may know about Lilly’s “nationwide wholesale
strategy” does not change that fact.
 ROGERS, Circuit Judge, dissenting: Assuming, as the court
does, that only two pills match the description given by Galvin’s
mother of the small, round, white, cross-scored pill that she
took, Galvin has proffered evidence from which a reasonable
jury could find that she was more probably exposed to
diethylstilbestrol (“DES”) manufactured by Lilly than the
alternative manufactured by Marsh Parker. The events
underlying Galvin’s complaint occurred more than four decades
ago. Hence, it is hardly surprising that evidence such as
pharmacy business records from 1964-65 is unavailable to
demonstrate with certainty which manufacturer produced the
DES giving rise to Galvin’s claims for relief. But Galvin need
not produce at trial evidence of substantial certainty, and the
court errs by holding her to a standard of proof greater than is
required under the relevant State law, to wit: “more probable
that the event was caused by the defendant than that it was not.”

In a universe of two pills, any evidence tending to implicate
the Lilly pill suffices to make that pill the more probable cause
of Galvin’s injuries. Galvin has proffered multiple pieces of
evidence that, when viewed together as a mosaic, support the
reasonable inference that among the small, round, white, cross-
scored pills, her mother’s DES pill was more probably
manufactured by Lilly than by Marsh Parker. In response to
Lilly’s alternative theory that the Marsh Parker pill, which also
matches Galvin’s mother’s description, may have caused
Galvin’s injuries, the court initially acknowledges that, as the
non-moving party, Galvin “need not disprove that alternative.”
Op. at 8. This, however, is what the court requires her to do.
Thus, having rejected the probative value of each piece of her
evidence viewed in isolation, the court observes that “Galvin
simply has not provided the evidence — market share data for
the Marsh Parker pill in a relevant market — necessary for a
reasonable juror to conclude that a Lilly pill was probably the
cause of her injury.” Op. at 16. But Galvin is not relying solely
 2

on statistical evidence. See Op. at 14-16. Once that flaw in the
court’s analysis is removed the “mosaic” that emerges from
Galvin’s evidence, according her as we must the benefit of all
reasonable inferences, suffices to defeat Lilly’s claim that it is
entitled to judgment as a matter of law, for at the summary
judgment stage Galvin is not required to “produce evidence in
a form that would be admissible at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

I.

“Under Rule 56(c), summary judgment is proper ‘if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.’” Id.
at 322 (quoting FED. R. CIV. P. 56(c)). In other words, the
“mosaic” approach, in contrast with the court’s breaking up of
Galvin’s evidence under two theories of analysis, see Op. at 9,
is consistent with the Supreme Court’s instruction on summary
judgment. Thus,

the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an
element essential to that party’s case, and on which
that party will bear the burden of proof at trial.

Id. Galvin’s proffer of evidence is not so deficient. At the
summary judgment stage, “[t]he court’s function is not to try
disputed issues of fact, but only to ascertain whether such an
issue is present, and any doubt on that score is to be resolved
against the movant.” Abraham v. Graphic Arts Int’l Union, 660
F.2d 811, 814 (D.C. Cir. 1981) (footnote omitted). Where any
 3

such dispute exists after giving the non-movant “the most
favorable view of the record,” Exxon Corp. v. FTC, 663 F.2d
120, 126 (D.C. Cir. 1980); see Celotex, 477 U.S. at 330 n.2,
summary judgment must be denied because “[t]rial by affidavit
is no substitute for trial by jury which so long has been the
hallmark of ‘even handed justice.’” Poller v. CBS, Inc., 368 U.S.
464, 473 (1962). At the summary judgment stage, Galvin’s
evidence “is to be believed, and all justifiable inferences are to
be drawn in [her] favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Additionally, she is “not require[d] . . . to
discredit every conceivable alternative theory of causation.”
Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465 (D.C. Cir. 1990).

To determine whether a reasonable juror could find in
Galvin’s favor based on her proffered evidence, the court must
apply the substantive law of Kansas. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). To prevail under Kansas
law, a plaintiff must “‘introduce evidence from which
reasonable persons may conclude that it is more probable that
the event was caused by the defendant than that it was not.’”
Yount v. Deibert, 147 P.3d 1065, 1073 (Kan. 2006) (quoting
PROSSER & KEETON ON TORTS § 41, at 269-70 (5th ed. 1984)).
Kansas law does not hold the plaintiff “to a highly detailed
burden of proof,” id. at 1072, but simply requires “evidence
which affords a reasonable basis for the conclusion that it is
more likely than not that the conduct of the defendant was a
cause in fact of the result,” id. (quoting PROSSER & KEETON §
41, at 269-70). Thus, “triers of fact are allowed to draw upon
ordinary human experience with regard to the probabilities of
the case.” Id. at 1073. To create a material issue of disputed
fact, “circumstantial evidence in a civil case need not rise to that
degree of certainty which will exclude every reasonable
conclusion other than the conclusion sought to be established.”
Lenherr v. NRM Corp., 504 F. Supp. 165, 168 (D. Kan. 1980).
At trial, a jury is entitled to make a reasonable inference from
 4

the evidence even if “some other inference equally reasonable
might be drawn therefrom.” Arterburn v. St. Joseph Hosp. &
Rehabilitation Ctr., 551 P.2d 886, 890 (Kan. 1976). In a
products liability case, the evidence “must justify an inference
of probability as distinguished from mere possibility.” Mays v.
Ciba-Geigy Corp., 661 P.2d 348, 360 (Kan. 1983).

II.

The court declines to consider Lilly’s contention that other
manufacturers of DES may have made a pill that matches
Galvin’s mother’s description because “Galvin has not
eliminated the Marsh Parker pill from consideration.” Op. at 10.
Galvin is not required to do so in order to defeat summary
judgment, see Part I, although the court repeatedly suggests that
she must, see Op. at 10, 12-13, 15-16. Assuming, as the court
does, that only two DES pills meet the description given by
Galvin’s mother, Op. at 10, Lilly has not offered any evidence
suggesting that Galvin was probably exposed to the Marsh
Parker pill, and the mosaic based on the evidence proffered by
Galvin suffices to show that it is more probable that she was
exposed to the Lilly pill. Even assuming no individual piece of
evidence proffered by Galvin would alone suffice to meet her
burden, she has offered evidence that begins with her mother’s
identification of the pill and her hospital records, continues with
affidavits from several pharmacists — including an expert —
concerning Lilly’s nationwide agreements and stocking
practices, and with Lilly’s Warehousing and Distribution
Service Agreement, and concludes with the druggists’ reference
books — the Physician’s Desk Reference (“PDR”) and the
American Druggist Blue Book (“Blue Book”) — and a national
market-share matrix. The conclusion that Galvin has met her
burden follows without deciding whether the district court
properly denied Galvin’s request to file supplemental affidavits,
see Op. at 6, or whether this court errs by allowing Lilly to avoid
 5

the result of a disavowing affidavit, see Op. at 9 n.*.

Galvin’s mother gave a four-point description of the pill she
took in 1964-1965 and hospital notes indicate that she was
prescribed “Stilb 25 mg,” which supports the reasonable
inference that her prescription also indicated a generic name
only. The initial affidavit of pharmacist Bill Waltrip provides
information about the business practices with regard to DES at
the drug store in Pittsburg, Kansas from which Galvin’s mother
obtained her DES pills; no records exist for the pharmacy from
1964-65. Waltrip states that, “[i]n the 1960's, Ash Drug Store
only stocked and dispensed the [Lilly] brand of
diethylstilbestrol.” Waltrip asserts, “[b]ased on [his] personal
observation of the habit and custom” of the drug store in the
1960's, that the Lilly brand of DES would have been dispensed
to a “woman who came into the pharmacy with a prescription
for ‘DES’, ‘stilbestrol’, or ‘diethylstilbestrol.’” He also states
that the prescribing obstetrician for Galvin’s mother practiced in
Ft. Scott, Kansas, and that the Ash Drug Store filled and
dispensed many of his patients’ prescriptions. Finally, Waltrip
notes that the drug store ordered DES from Pennington
Wholesale Drug located in Joplin, Missouri, which was a Lilly
wholesaler.

Although Waltrip did not begin working at the Ash Drug
Store until 1967, his affidavit establishes that at that time (1)
Lilly DES was available in Kansas through a Lilly wholesaler,
(2) it was sold at the same drug store where Galvin’s mother’s
prescription was filled, and (3) no other DES was available at
that drug store. The court rejects the probative value of
Waltrip’s testimony about stocking practices on the ground that
it is adopting “a neutral posture, inferring neither change or
continuity at the drugstore” since 1964-65. Op. at 18; see id. at
17 n.* (quoting FED. R. EVID. 406). On summary judgment,
however, the court must give the non-moving party the benefit
 6

of all reasonable inferences. See Anderson, 477 U.S. at 255. A
reasonable jury could infer, when Galvin’s other evidence is
considered, that Waltrip’s affidavit makes it more probable that
Lilly DES was sold in the same drug store in 1964-65. The two-
year period affects the strength of the inference that may
reasonably be drawn; it does not eliminate its relevance. See
FED. R. EVID. 401 advisory committee’s note.

Bolstering the probative force of Waltrip’s affidavit is the
Lilly Warehousing and Distribution Service Agreement, which
states that the wholesaler shall promote Lilly products and not
give preference to any other brand when no brand is specified.
Galvin’s mother’s hospital records indicate that she was
prescribed “Stilb 25 mg” without specifying a brand. Op. at 16.
Additionally, the affidavits of Harold B. Sparr and Philip J.
Cafferty are relevant because of their personal familiarity with
Lilly’s literature, its nationwide wholesale strategy in the 1950s
and 1960s, and the nature of its agreements with wholesalers
throughout the United States. Both Sparr and Cafferty state that
no manufacturer other than Lilly had a round, white, cross-
scored DES pill without any other markings. Their evidence
further bolsters the probative force of Waltrip’s affidavit.

Sparr states that he was familiar with Lilly publications and
its marketing and stocking practices in the 1950s and 1960s. He
also states that he reviewed the sworn statements of over 105
pharmacists regarding the prevalence and availability of Lilly
DES products in their stores in the 1950s and 1960s. Sparr is a
registered pharmacist in Massachusetts, New York, and
California; he holds a Masters in Health Care Management from
Pacific Western University and has taught pharmacy at the
Massachusetts College of Pharmacy and Northeastern; he has
over forty-seven years of experience as a practicing pharmacist,
beginning in the mid-1950s; he has served as President of the
Massachusetts Board of Registration in Pharmacy and was
 7

named Pharmacist of the Year in 1995 by the Massachusetts
Pharmacy Association; and he was twice a delegate to the
United States Pharmacopoeia.

According to Sparr, in the 1950s and 1960s “Lilly was the
leading pharmaceutical manufacturer in America [] with top
market popularity because of its reputation, quality, control,
efficiency of inventory and distribution through wholesalers.”
He notes, among other things, that at that time “Lilly was the
only major drug house that employed licensed pharmacists as
detailmen” to restock drug stores with Lilly products and also
employed unique stocking practices, enabling retail pharmacists
to save money. Even though Sparr’s pharmaceutical practice
and teaching experiences were in New England, his familiarity
with Lilly literature that was distributed nationwide and its
nationwide stocking practices and its unique detailing practices
lends support to the reasonable inference that the Ash Drug
Store in Pittsburg, Kansas — which, according to Waltrip,
obtained its DES from a Lilly wholesaler in 1967 — dispensed
the Lilly DES pill to Galvin’s mother. The affidavit of Philip
Cafferty, a pharmacist since 1961, is to the same effect, noting
also that for nineteen years, beginning in 1965, he was employed
by Lilly as a professional representative or detailman and district
manager in New England.

While it is possible, in the sense that anything is possible,
that Lilly functioned in a different manner in Kansas in 1964-65,
Sparr and Cafferty are familiar with Lilly’s nationwide practices
and top popularity in the relevant years. The court rejects their
evidence because Sparr’s and Cafferty’s experiences were
“almost exclusively limited to New England.” Op. at 11. This
overlooks not only that Lilly also relies on the testimony of a
pharmacist who worked solely in Massachusetts, Op. at 9 n.*,
but also that Sparr and Cafferty have undisputed knowledge of
Lilly’s nationwide practices when Galvin’s mother was taking
 8

DES. By proffering this evidence, Galvin has offered further
support for the reasonable inference that a jury could draw that
it was more probable than not that her mother took Lilly’s DES
pill.

Other support for the probative force of the inference about
1964-65 from Waltrip’s affidavit is found in three survey-type
references. The first two references are national catalogues
listing brands of drugs. The Physician’s Desk Reference
(“PDR”), which Galvin asserts (and Lilly does not contest, a
point overlooked by the court, Op. at 13 & n.*), is the “Bible of
[d]rugs” that was “on the [d]esk of [e]very [d]octor in America,”
Appellant’s Br. at 17, lists Lilly as the only brand of DES in the
Twentieth Edition published in 1965. A second reference,
proffered by Lilly, is the 1964-65 edition of the American
Druggist Blue Book, which includes the catalogues of seventy-
four manufacturers and describes itself as listing the latest
products and price changes. The Blue Book also does not list
Marsh Parker among the brands of DES.

The court dismisses the probative value of the PDR on the
ground that Galvin concedes that it is not an exhaustive list of
DES manufacturers and imposes on Galvin a unique burden to
show the compilation methodologies used in the PDR and the
Blue Book even though Lilly does not dispute Galvin’s
characterization of the PDR and Lilly proffered the Blue Book.
See Op. at 13 & n.*. The court does not address the fact that
Marsh Parker does not appear in the Blue Book other than to
impose a compilation burden, Op. at 13 n.*, instead finding that
the listing of Marsh Parker in the Red Book, also proffered by
Lilly, is conclusive. See Op. at 12-13. No doubt the non-
exhaustive nature of the listing means that the PDR is not
complete proof. But Galvin, not Lilly, is entitled on summary
judgment to all reasonable inferences and a reasonable juror
could find that it is more probable that the more prominent and
 9

more widely available drug would have been listed than the less
prominent drug. From the absence of Marsh Parker from these
two listings a reasonable juror could infer that Marsh Parker was
not a major producer of DES during the relevant period.
Although the Red Book for 1964 and 1965 lists both Lilly and
Marsh Parker, a reasonable juror could accept that Marsh Parker
was on the market in 1964-65 and still conclude that it is more
probable than not that Galvin was exposed to Lilly DES. To the
degree that the Red Book supports the contrary inference — that
Galvin was exposed to Marsh Parker DES — under Kansas law,
Galvin’s burden at trial does not require her to exclude other
reasonable inferences, see Arterburn, 551 P.2d at 890, much less
offer mathematical proof of causation, see Yount, 147 P.3d at
1072-73.

The third reference is a national market share matrix
developed in connection with litigation in New York. See
Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y.
1989). The matrix indicates that Lilly had a significant
percentage — approximately 28% — of the national market in
1964-65. It does not list Marsh Parker at all. That summary
judgment was granted to some drug manufacturers and that
Galvin proffered only one page of the matrix, see Op. at 12, are
red herrings, for Lilly was not among the manufacturers granted
summary judgment and the single page is where Marsh Parker
would have been listed in alphabetical order. The court also
dismisses the probative value of this evidence because it shows
that Lilly had less than 30% of the market. Op. at 15-16.
Contrary to the court’s implication, Op. at 14-16, Galvin is not
relying on statistical evidence “by itself” to defeat summary
judgment and, consequently, the court’s expression of doubt
about the probativeness of statistical evidence, see Op. at 14-16,
misses the mark. But even accepting Lilly’s bald assertion that
the matrix leaves 44% of the market share unaccounted for, a
reasonable juror could doubt, in view of Galvin’s evidence, that
 10

Marsh Parker was a dominant market force accounting for more
than 28% of the remaining 44% but was somehow excluded
from the PDR and the Blue Book and the matrix. Contrary to
the court’s conclusion, a reasonable juror need not believe that
these reference materials have no probative value at all. Rather,
they lend support to the reasonable inference that in 1964-65
Lilly DES was more prevalent than Marsh Parker DES, thus
making it more probable that Galvin was exposed to Lilly’s pill
than Marsh Parker’s.

In reaching a contrary conclusion about the probative force
of the mosaic of evidence that Galvin has proffered, the court
appears to suggest that Lilly is entitled to summary judgment
because Galvin may not have proven that it is certain that she
was exposed to Lilly’s product or that it is significantly more
probable that she was exposed to Lilly’s product than to Marsh
Parker’s. See Op. at 9, 10, 12-13, 15-16. This is not her burden
as the non-moving party. See Anderson, 477 U.S. at 248; see
also Yount, 147 P.3d at 1072-73. At this stage of the
proceedings, Galvin need only adduce evidence from which a
reasonable juror could conclude that it is more probable — even
if only slightly more probable — that she was exposed to Lilly’s
pill even if there is another reasonable inference. She has done
so. The court’s contrary conclusion stems from its failure to
adhere to the summary judgment standard, see, e.g., Op. at 13
n.*, 18 n.*, where the non-movant’s evidence is to be taken as
true and receive all reasonable inferences, see Anderson, 477
U.S. at 255, and Kansas law, which requires only more-
probable-than-not proof of causation.

To the extent some courts insist on “direct” evidence of
causation, see, e.g., Smith v. Rapid Transit, Inc., 58 N.E.2d 754
(Mass. 1945), while others permit circumstantial evidence to
establish liability based on probabilities, see, e.g., Kramer v.
Weedhooper of Utah, Inc., 490 N.E.2d 104, 107-08 (Ill. App. Ct.
 11

1986); cf. Kaminsky v. Hertz Corp., 288 N.W.2d 426 (Mich.
1979), we understand that “direct” evidence is not necessarily
more accurate than statistical evidence of probabilities, both of
which rely on a degree of generality. See FREDERICK SCHAUER,
PROFILES, PROBABILITIES, AND STEREOTYPES 93-97 (2003);
Michael J. Saks & Robert F. Kidd, Human Information
Processing and Adjudication: Trial by Heuristics, 15 LAW &
SOC’Y REV. 123, 151-56 (1980-81); cf. Ronald J. Allen, A
Reconceptualization of Civil Trials, 66 B.U. L. REV. 401, 414-15
(1986); Daniel Shaviro, Statistical-Probability Evidence and the
Appearance of Justice, 103 HARV. L. REV. 530, 538-39, 542-43
(1989). As one jurist has put it, “it is now generally recognized
. . . that since all evidence is probabilistic — there are no
metaphysical certainties — evidence should not be excluded
merely because its accuracy can be expressed in explicitly
probabilistic terms.” Richard A. Posner, An Economic
Approach to the Law of Evidence, 51 STAN. L. REV. 1477, 1508
(1999), quoted in Jonathan J. Koehler, When Do Courts Think
Base Rate Statistics Are Relevant?, 42 JURIMETRICS J. 373, 373
& n.1 (2002).

Whatever may be the merits of the broader debate over
whether courts should allow verdicts on the basis of statistical
evidence, Galvin’s mosaic of evidence suffices to meet her
burden of proof and thus to defeat Lilly’s motion for summary
judgment. Although Lilly maintains that even if Galvin was not
exposed to the Marsh Parker pill, she has not demonstrated that
she was exposed to Lilly’s pill because other manufacturers of
DES in 1964-65 may have produced a pill that matches her
mother’s description, Lilly’s alternative argument cannot
prevail. The court suggests that mediating this contention would
require consideration of a complex burden-shifting scheme in
which the plaintiff is burdened with disproving all remaining
alternatives. See Op. at 10. However, Galvin does not bear the
burden of proving a certainty. See, e.g., Shields, 895 F.2d at
 12

1466. Galvin’s mother offered a fairly precise description of the
pill she took that provides four data points — it was small; it
was white; it was round; and it was cross-scored. The court
acknowledges that Galvin’s mother was shown a photo array in
which she identified the Lilly pill but deems significant the fact
that the Lilly pill was the only pill among the twenty shown that
matched her description. See Op. at 9. Galvin is, however,
entitled to all reasonable inferences. The court fails to recognize
that the photo array suggests that the four-point composite
description given by Galvin’s mother is uncommon. The only
question this court must ask is whether a reasonable juror could
infer that there are probably no additional DES pills that match
this description. That Lilly could find one other matching pill
— the Marsh Parker DES pill — would not make it
unreasonable for a juror to infer that Lilly had probably found
the only other matching pill.

Accordingly, because the court has improperly raised the
standard for defeating summary judgment to require Galvin to
produce evidence from which a reasonable juror could conclude
that it was significantly more probable that Galvin was exposed
to the Lilly DES, I respectfully dissent and would reverse in
view of Galvin’s Rule 56(e) evidence and reasonable inferences
in her favor as the non-moving party, and remand the case to the
district court.