The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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 proposed testimony is described in the final
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
According to University that "protocol" had three elements,
all noted by Dieckmann in his published report (the ...