UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
September 9, 1988
JULIE A. SHIRKEY, PLAINTIFF-APPELLANT,
ELI LILLY & COMPANY, DEFENDANT-APPELLEE
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84 C 0288, Terence T. Evans, Judge.
Before Hon. RICHARD D. CUDAHY, Circuit Judge, Hon. FRANK H. EASTERBROOK, Circuit Judge, Hon. MICHAEL S. KANNE, Circuit Judge
On consideration of the petition for rehearing or modification of certification opinion filed in the above-entitled cause by defendant-appellee on July 26, 1988, all of the judges on the original panel have voted to deny a rehearing. Accordingly,
IT IS ORDERED that the aforesaid petition for rehearing be, and the same is hereby, DENIED.
The opinion certifying three questions to the Wisconsin Supreme Court, issued July 12, 1988, is modified as follows:
On page 18, lines 2 through 4: replace the sentence beginning "This objection . . ." with the following:
This objection was consistent with Shirkey's introduction of evidence that there were indications prior to 1960 that DES passed through the placenta and might therefore affect fetal development, see, e.g., tr. at 394-95 (testimony of Dr. Shann Swann), and that DES might have other adverse effects, see, e.g., tr. at 630-31 (testimony of Dr. David Decker, plaintiff's cross examination on cervical cancer in mice). Shirkey's objection to the negligence instruction adequately preserved her argument that the jury should have been directed to consider this evidence in determining whether Lilly was negligent.
On page 22, lines 26-29, replace the current question 3 with the following:
Do Wisconsin's public policies require courts to protect DES manufacturers from negligence judgments awarded under a failure to warn theory, where the evidence demonstrates only that the manufacturer responded negligently to information suggesting the potential for injuries different from the injury suffered by the plaintiff?
Lilly's Motion to Strike Portions of Supplemental Appendix and Answer of Plaintiff-Appellant to Petition for Rehearing is denied as moot.
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