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WETHERILL v. UNIVERSITY OF CHICAGO

July 23, 1981

RACHEL WETHERILL, PLAINTIFF,
v.
UNIVERSITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Rachel Wetherill ("Wetherill") brings this diversity action for injuries allegedly resulting from her mother's ingestion during pregnancy of the drug diethylstilbestrol ("DES"). In 1978 the United States Department of Health, Education and Welfare ("HEW," now the Department of Health and Human Services) published a report (the "Report") prepared by an ad hoc task force established to study the effects of DES. Wetherill has moved in limine for an order holding the Report admissible under Fed.R.Evid. ("Rule") 803(8). For the reasons stated in this memorandum opinion and order that motion is denied.

The Report

In 1978 HEW Secretary Joseph Califano responded to growing concern over the effects of DES by directing Surgeon General Julius Richmond to establish a task force to study the subject. Authority for the task force was sought to be drawn from 42 U.S.C. § 241 and 282:

  Section 241 — Research and Investigations
  Generally. The Surgeon General shall conduct in the
  Service, and encourage, cooperate with and render
  assistance to other appropriate public authorities,
  scientific institutions, and scientists in the
  conduct of, and promote the coordination of,
  research, investigations, experiments,
  demonstrations, and studies relating to the causes,
  diagnosis, treatment, control, and prevention of
  physical and mental diseases and impairments of
  man. . . .
  Section 282 — Powers and Duties of the Surgeon
  General . . . (a) In carrying out the purposes of
  Section 241 of this Title with respect to cancer
  the Surgeon General, through the National Cancer
  Institute and in cooperation with the National
  Cancer Advisory Board, shall — (1) conduct,
  assist, and foster researches, investigations,
  experiments, and studies relating to the cause,
  prevention, and methods of diagnosis and treatment
  of cancer; (2) promote the coordination of
  researches conducted by the Institute and similar
  researches conducted by other agencies,
  organizations, and individuals. . . .*fn1

To comprise the task force the Surgeon General assembled a group of doctors and experts employed with various departments of the federal government. It was chaired by the Director of Cancer Control and Rehabilitation at the National Cancer Institute, Dr. Diane Fink. In addition to the task force members themselves, a large group of consultants participated actively in preparing the Report. That consultant group consisted of both doctors and non-professionals, several of whom were active in organized efforts to expose the allegedly harmful effects of DES. It included Phyllis Wetherill, plaintiff's mother, Dr. Sidney Wolfe, Director of Health Research Group (a Ralph Nader organization), Barbara Seaman (see n.5) and Fran Frisbane, President of DES Action. There was no representative of the pharmaceutical industry either on the task force or among the consultants.

Neither the Surgeon General nor the task force viewed its function as the conduct of original research. Instead it reviewed available information on DES (both published and nonpublished) and, after round table discussion, voted on recommendations. Its goals and methods of procedure are best summed up in the letter from Dr. Fink to Dr. Richmond accompanying the submission of the Report:

  The Task Force began its deliberations on March
  3, 1978. It followed the charges you outlined in
  the original responsibilities to the Task Force,
  namely:
    To review — all aspects of the DES question and
    to develop recommendations regarding health
    issues of DES and research gaps which exist.

To advise on —

    1. the recent observation of a possible
    association of breast cancer (and other tumors)
    in DES mothers,
    2. the use of DES as a post-coital
    contraceptive,
    3. the abnormalities of the reproductive tract
    in DES ...

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