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WETHERILL v. UNIVERSITY OF CHICAGO

June 17, 1983

RACHEL WETHERILL, PLAINTIFF,
v.
UNIVERSITY OF CHICAGO AND ELI LILLY AND COMPANY, DEFENDANTS. MAUREEN ROGERS, PLAINTIFF, V. UNIVERSITY OF CHICAGO AND ELI LILLY AND COMPANY, DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER*fn*

Both Rachel Wetherill ("Wetherill") and Maureen Rogers ("Rogers") allege they were injured by exposure in utero to diethylstilbestrol ("DES"), manufactured and supplied by Eli Lilly and Company ("Lilly") and administered to plaintiffs' mothers as part of an experiment conducted by Dr. William Dieckmann ("Dieckmann") in the early 1950s at the University of Chicago ("University") hospitals. Each Complaint contains the same three counts:

    1. Count I charges University committed a battery
  by subjecting the plaintiff's mother to the DES
  experiment without her prior knowledge or
  consent.*fn1
    2. Count II sounds in malpractice, asserting
  various acts of negligence by University and its
  hospital employees.*fn2
    3. Count III seeks recovery against University and
  Lilly on strict liability grounds.

All parties have deluged this Court with motions in limine in each case:

    1. Lilly's motion to exclude evidence as to changes
  in Lilly product literature after plaintiffs were
  exposed to DES;
    2. Lilly's motion to exclude cancer-related
  testimony;
    3. University's motion to exclude colposcopic
  photographs;
    4. University's motion to exclude an Abbott
  Laboratories document;
    5. University's motion to bar plaintiffs from
  calling Dr. Vaux as an expert witness;
    6. plaintiffs' motion to exclude cumulative
  testimony of defendants' expert witnesses; and

7. Lilly's motion for separate trial.

This memorandum opinion and order will address each motion in turn.

Changes in Lilly Product Literature After Plaintiffs' Exposure to
                               DES

Wetherill and Rogers intend to introduce four DES publications printed by Lilly after plaintiffs' births (November 16, 1951 and May 26, 1952, respectively):

    1. Lilly's 1954 A-form publication,*fn3 which
  mentions several researchers opposed to the use of
  DES during pregnancy;
    2. Lilly's 1967 A-form, which acknowledges
  "possible adverse reaction on the fetus";
    3. Lilly's 1972 A-form, which says a "statistically
  significant association has been reported between
  material ingestion of DES during pregnancy and the
  occurrence of vaginal carcinoma in the offspring";
  and
    4. Lilly's 1975 A-form, which warns that "vaginal
  adenosis has been reported in 30 to 90 percent of
  post pubertal girls and young women whose mothers
  received DES or a closely related congener during
  pregnancy."

Rule 407 provides:

  When, after an event, measures are taken which, if
  taken previously, would have made the event less
  likely to occur, evidence of the subsequent measures
  is not admissible to prove negligence or culpable
  conduct in connection with the event. This rule does
  not require the exclusion of evidence of subsequent
  measures when offered for another purpose, such as
  proving ownership, control, or feasibility of
  precautionary measures, if controverted, or
  impeachment.

Plaintiffs disclaim any intention of using the post-occurrence*fn4 Lilly product literature as evidence of Lilly's "negligence or culpable conduct." Rather plaintiffs would introduce all four documents for "another purpose":

    1. Lilly's 1954 A-form would be tendered to
  establish its knowledge of DES's dangers before
  plaintiffs' births — a claimed issue of
  "feasibility" — or alternatively to impeach the
  testimony of Lilly personnel who disavow any such
  knowledge before those dates.*fn5
    2. Three of them — the 1967, 1972 and 1975 A-forms
  — would be offered to prove the causal relationship
  between DES ingestion by a pregnant woman and injury
  to her offspring.*fn6

Lilly's 1954 A-form does not fall within Rule 407's "feasibility" exception, for that issue is not controverted by Lilly. See Oberst v. International Harvester Co., 640 F.2d 863, 866 (7th Cir. 1980) (evidence of subsequent remedial measure not admissible on the issue of feasibility unless it is contested). Lilly does not deny it would have been feasible to place warning language in its pre-occurrence product literature — if it had possessed knowledge sufficient to issue such warnings. On that latter subject — Lilly's knowledge (or the reasonable forseeability) of DES's harmful properties — the parties are in sharp disagreement. But that issue does not implicate the concept of "feasibility" within the meaning of Rule 407. Accord, Werner v. Upjohn Co., 628 F.2d 848, 855 (4th Cir. 1980); Schneider v. Eli Lilly and Co., 556 F. Supp. 809 at 811 (E.D.La. 1983); Keil v. Eli Lilly and Co., No. 75-7099, slip op. at 2 (E.D. Mich. July 3, 1980); Needham v. White Laboratories, No. 76 C 1101, slip op. at 4 (N.D.Ill. Aug. 13, 1979). Contra, McAdams v. Eli Lilly and Co., No. 77 C 4174, slip op. at 5-6 (N.D.Ill. Oct. 6, 1981) (1954 A-form admissible in rebuttal or cross examination on issue of Lilly's knowledge during 1953 because "[f]easibility also embraces the factual basis upon which the [warning] change could have been made").

"Feasibility" of remedial measures, in the normal sense of the word, rather denotes whether it would have been practical to have employed them earlier. That is a matter far different from whether a claimed wrongdoer knew or should have known, but nonetheless did not employ, remedial measures earlier. That latter question concerns Lilly's culpability or negligence.*fn7 And Rule 407 by its very terms precludes the use of the 1954 A-form for that purpose.*fn8

As for the other three post-1953 publications, Rule 407 surely does not foreclose their introduction as admissions by Lilly that prenatal DES exposure causes the type of injury suffered by plaintiffs. Because causation is analytically distinct from fault ("negligence or culpable conduct"), it is plainly "another purpose" for which evidence of subsequent remedial measures can be offered under Rule 407.*fn9

In an effort to escape that conclusion, Lilly invokes Werner's exposition of the policy underlying the exceptions to Rule 407 (628 F.2d at 857):

  Of course, exceptions must arise where the defendant
  attempts to make offensive use of the exclusion of
  this evidence. Thus, if the defendant denies
  ownership or control, contends that no such repair or
  improvement was possible, or makes statements
  conflicting with the fact of repair, then the
  plaintiff should be allowed to make use of subsequent
  remedial measures. As previously noted, the list of
  exceptions in Rule 407 is illustrative, not
  exhaustive, but each of the listed exceptions deals
  with situations where the defendant might gain a
  direct benefit over and above the fact of exclusion
  and it seems to us that new exceptions to the rule
  should follow this rationale if the policy behind the
  rule is to be protected.

But recognition of the added exception here is entirely consonant with the Werner analysis: Were Lilly to escape plaintiffs' use of an admission regarding causation — a non-fault issue — Lilly would (not merely might) "gain a direct benefit over and above the fact of exclusion." It would surely realize such a "direct benefit" were its post-1953 literature rendered inadmissible as to causation as well as fault.

It might perhaps be urged Werner's "direct benefit" and "offensive use" language was intended to cover only situations in which the subsequent repair evidence convincingly disproves defendant's position on a non-fault issue. But in effect that would convert Rule 407 into a crude version of Rule 403, balancing the probative value of the evidence on that particular issue against the risk of prejudice (the impermissible inference of fault). Even apart from the obvious superiority of Rule 403 for making that comparison,*fn10 two policy reasons militate convincingly against any such approach:

    1. As the Rules are structured, Rule 402 says "All
  relevant evidence is admissible," in conjunction with
  which any specifically applicable Rule or Rules
  determine admissibility of evidence. Only when that
  has been done (independently of any countervailing
  factor) does Rule 403's comparative analysis come
  into play. It would distort the drafters' scheme of
  things to engraft another level of comparison into
  one specific Rule on admissibility.

It is true plaintiffs will undoubtedly offer evidence of scientific clinical studies on the causation issue. But they are also entitled to seek the potentially greater effect a jury may give an admission on the same topic by Lilly. If Lilly expects to contest the causation issue, it cannot complain of any probative value the A-forms may have on that score. And as for any claimed prejudice, appropriate jury instructions can guard against any possible consideration of the A-forms as evidence of Lilly's failure to give adequate pre-occurrence warnings.

In sum the 1954 A-form is out while the other three A-forms are in. If the situation develops differently at trial as to any of them, either party may seek reconsideration.

Cancer-Related Testimony

Though neither plaintiff now suffers from any cancerous or pre-cancerous condition, each believes her prenatal exposure to DES will significantly enhance the likelihood of contracting cancer in the future. Each seeks damages for her fear of developing cancer, not for the increased cancer risk itself. To establish the reasonableness of those fears, each intends to introduce expert and lay medical evidence confirming the causal relationship between cancer and DES.

Lilly objects strenuously to admissibility of cancer-related testimony for two reasons. First and most important, Lilly contends plaintiffs' anxiety is not compensable under Illinois law. It therefore seeks exclusion of that evidence on relevancy grounds (under Rule 402). Specifically, Lilly argues:

    1. Plaintiffs have failed to satisfy the two
  prerequisites to recovery for negligent infliction of
  fear of future injury. Lilly says the feared future
  injury (cancer) must be (a) reasonably certain to
  develop from (b) a present injury (a cancerous or
  pre-cancerous condition).
    2. Plaintiffs' "cancer phobia" does not state an
  action for intentional infliction of emotional
  distress.
    3. As defendant in a strict liability action, Lilly
  is not liable for emotional injury under Illinois
  law. See Woodill v. Parke Davis & Co., 58 Ill. App.3d 349,
  354-55, 58 Ill.Dec. 349, 354-355,
  374 N.E.2d 683, 687-88 (1st Dist. 1978), aff'd, 79 Ill.2d 26,
  38, 37 Ill.Dec. 304, 310, 402 N.E.2d 194, 200 (1980).

Alternatively Lilly seeks exclusion of the evidence under Rule 403, claiming its inflammatory nature outweighs its probative value.

Lilly's first contention as to relevancy misperceives both preconditions to recovery for emotional distress. Neither reasonable certainty nor present injury is required.

As for "reasonable certainty," such a stringent requirement would distort traditional notions of proximate cause. That concept's touchstone — reasonable foreseeability of the claimed injury (in this case emotional distress) — merely demands a reasonable fear, not a high degree of likelihood, that the feared contingency be likely to occur. Such a lesser showing of reasonableness is borne out by the few cases on point. See, e.g., Baylor v. Tyrrell, 177 Neb. 812, 131 N.W.2d 393, 402 (1964) (anxiety about possibility of developing cancer "must have reasonable basis"); Ferrara v. Galluchio, 5 N.Y.2d 16, 19-20, 176 N YS.2d 996, 997-998, 152 N.E.2d 249, 251 (1958) (to recover for emotional anguish, victim of excessive radiation treatment must establish a "basis for her mental anxiety" but need not prove cancer will develop). And the distinction is meaningful, for fears of future injury can be reasonable even where the likelihood of such injury is relatively low. See Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 418 A.2d 480, 482, 485 (1980) (upholding damage award for psychic injury even though plaintiffs' doctors were certain her fears of cancer, heart attack and premature death were medically unfounded); Heider ...


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