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August 23, 1983


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


Both Rachel Wetherill ("Wetherill") and Maureen Rogers ("Rogers") claim injury by exposure in utero to diethylstilbestrol ("DES"), administered to their mothers as part of a study (the "Study") 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 plaintiff's mother to the
  Study without her prior knowledge or consent.
    2. Count II sounds in malpractice, asserting
  various acts of negligence by University and its
  hospital employees.
    3. Count III seeks recovery on strict liability
  Both actions have reached the final pre-trial order stage and have been added to this Court's list of cases ready for trial. Each plaintiff has now filed motions in limine:
    1. to declare the relevance of the testimony of
  Dr. Brian L. Strom ("Dr. Strom") to Counts I and
  II, and
    2. to exclude evidence concerning University's
  asserted "routine practice" of obtaining the
  consent of participants in the Study under
  Fed.R.Evid. ("Rules") 403, 406 and 802.

For the reasons stated in this memorandum opinion and order the first motion is granted but the second motion is denied.

Dr. Strom's Testimony

Dr. Strom's proposed testimony is described in the final pretrial order:

  He will testify that at the time of plaintiff's
  exposure to DES, the University of Chicago . . .
  knew, or by the application of reasonable,
  developed human skill and foresight should have
  had knowledge of the dangers of DES use. Dr.
  Strom will also testify that DES was inadequately
  tested prior to its marketing for treatment of
  accidents of pregnancy.

University concedes such testimony is relevant to Count III but disputes its relevance to Counts I and II. This Court must agree with plaintiffs' position on that score.

Dr. Strom's testimony is certainly pertinent at least to the "informed consent" issue posed by one of the six acts of negligence imputed to University by Count II: permitting "Dr. Dieckmann and others to use patients of the HOSPITAL as experimental subjects without the knowledge or consent of the patients." Grounded in principles of negligence (rather than the intentional tort of battery), the doctrine of informed consent requires physicians to exercise reasonable care in informing the patient of the risks of the treatment or operation in question. See Mink v. University of Chicago, 460 F. Supp. 713, 716-17 (N.D.Ill. 1978). Dr. Strom's testimony that University physicians who treated plaintiffs' mothers should have known of DES's potential dangers during the early 1950s is obviously probative of whether their conceded failure to disclose such dangers breached that standard of due care.

As University correctly points out, Dr. Strom's testimony has no bearing on plaintiffs' entitlement to compensatory damages under Count I. That battery claim rests on the total lack of consent by plaintiffs' mothers to the DES treatment. Whether any consent given was uninformed (because of the physician's inadequate disclosure) is simply irrelevant to a battery action. See Mink, 460 F. Supp. at 717.

However, Dr. Strom's testimony is germane to the issue of punitive damages raised by Count I (and Count II as well). Under Illinois law punitive damages may be awarded "when the defendant acts wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others." Pendowski v. Patent Scaffolding Co., 89 Ill. App.3d 484, 487, 44 Ill.Dec. 544, 546, 411 N.E.2d 910, 912 (1st Dist. 1980). Dr. Strom's anticipated testimony that numerous pre-1952 studies had documented the harmful consequences of DES usage would certainly support an inference of gross negligence on the part of University physicians who treated plaintiffs' mothers.

Accordingly Dr. Strom's expected testimony is relevant to both Counts I and II. Plaintiffs' motion for a ruling to that effect is granted.*fn1

University's "Routine Practice" of Obtaining Consents

As already stated, one critical element of a battery or negligence claim is lack of consent on plaintiffs' mothers' part. To prove that, plaintiffs will call their mothers as witnesses to testify no University physician ever disclosed the existence of, or sought their consent to, the Study. University will indirectly counter such testimony*fn2 by proving physicians who conducted the Study adhered to a routine procedure of obtaining the consents of participants after full disclosure.

According to University that "protocol" had three elements, all noted by Dieckmann in his published report (the ...

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