Amicus Curiae Brief — Reynoldsville Casket Co. v. Hyde
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No. 94-3
IN THE
Supreme Court of the United States
October Term, 1994
REYNOLDSVILLE CASKET CO., et al
Petitioners,
vs.
CAROL L. HYDE,
Respondent.
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF OHIO
MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF AND AMICUS CURIAE BRIEF OF BROWN
& SZALLER CO., L.P.A., SPANGENBERG,
SHIBLEY, TRACI, LANCIONE & LIBER, THE
ASSOCIATION OF TRIAL LAWYERS OF AMERICA,
AND THE OHIO ACADEMY OF TRIAL LAWYERS
IN SUPPORT OF RESPONDENT
ROBERT A. MARCIS JAMES F. SZALLER
SPANGENBERG, SHIBLEY, Counsel of Record
TRACI, LANCIONE & LIBER KE J. KNABE
BROWN & SZALLER CO., L.P.A.
14222 Madison Avenue
Cleveland, OH 44107-4510
(216) 228-7200
Attorneys for Amicus Curiae
Brown & Szaller Co., L.P.A.
MARTIN J. WILLIAMS
OHIO ACADEMY OF TRIAL
LAWYERS
400 Dublin Avenue
Columbus, OH 43215
(614) 341-6800
Attorney for Amicus Curiae Ohio
Academy of Trial Lawyers
——aae ET "STREET, NW, WASHINGTON, D.c. 20086 ad Ne
” BEST AVAILABLE corre
IN THE
Supreme Court of the United States
October Term, 1994
No. 94-3
REYNOLDSVILLE CASKET CO., et al
Petitioners,
vs.
CAROL L. HYDE,
Respondent.
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF OHIO
MOTION FOR LEAVE TO FILE AMICUS CURIAE
BRIEF OF BROWN & SZALLER
CO., L.P.A., SPANGENBERG, SHIBLEY, TRACI,
LANCIONE & LIBER, THE ASSOCIATION OF
TRIAL LAWYERS OF AMERICA, AND THE OHIO
ACADEMY OF TRIAL LAWYERS IN SUPPORT
OF RESPONDENT
MOTION TO APPEAR AS AMICI
The law firm of Brown & Szaller Co., L.P.A., the law firm
of Spangenberg, Shibley, Traci, Lancione & Liber
(‘‘Spangenberg’’), the Association of Trial Lawyers of America
(‘‘ATLA’’) and the Ohio Academy of Trial Lawyers (‘‘OATL’’)
(collectively ‘‘amict’’) respectfully request leave to appear as
amici curiae on the merits in support of the Respondent.
The law firms of Brown & Szaller and Spangenberg repre-
sent Ohio residents who allege injury from use of the A.H.
Robins Company’s (‘‘Robins’’) Dalkon Shield intrauterine
‘
device (‘‘IUD’’). ATLA and OATL are voluntary bar associa-
tions whose members primarily represent injured victims in
personal injury actions. These attorneys, some of whom repre-
sent Ohio Dalkon Shield victims, are committed to the pro-
position that the right to seek legal redress in court for
wrongful injury is fundamental to Americans. This right is
secured in many states, including Ohio, by express provisions
of the state Constitution. ATLA and OATL have participated
as amicus curiae in this Court and in cases throughout the.
United States in support of injury victims whose right to seek
redress may be extinguished by legislative or judicial action.
A significant portion of Ohio’s Dalkon Shield victims and their
attorneys relied on Ohio’s tolling statute to determine when
to file claims against Robins, the Virginia corporation that
manufactured the Dalkon Shield. Robins filed for reorganiza-
tion on August 21, 1985, which automatically stayed all litiga-
tion against it and prohibited the filing of any new actions.
Subsequent to their filing, and during Robins’ reorganization
this Court determined Ohio’s tolling statute violative of the
Commerce Clause in Bendix Autolite Corp. v. Midwesco Enter-
prises, Inc., 486 U.S. 888 (1988). Because the issue of the
retroactivity of Bendix appeared ripe for the Ohio Supreme
Court to determine in Hyde v. Reynoldsville Casket Co., 68
Ohio St. 3d 240, 626 N.E.2d 75 (1994), Brown & Szaller,
Spangenberg, and OATL appeared as amici on Respondent’s
behalf in the Ohio Supreme Court. Counsel from Brown &
Szaller presented oral argument. Counsel argued, on behalf
of the Ohio Dalkon Shield victims, that the very recent deci-
sion in Harper v. Virginia Department of Taxation, 509
U.S.____, 113 S. Ct. 2510 (1993) mandated retroactively ap-
plying this Court’s decision in Bendix, but that Harper's direc-
tive for the state to determine the appropriate remedy to be
accorded Respondent also required the Ohio Supreme Court
to consider the inequity to the Respondent and the plight of
Dalkon Shield victims who might lose their right to pursue
litigation filed at a time when there was no reason to believe
that the statute of limitation might have run. The Ohio Supreme
Court did, but if this Court reverses Hyde, Dalkon Shield vic-
tims residing in Ohio may be barred from pursuing claims that
were timely filed under Ohio law.
_This Court has granted the Motion of the Dalkon Shield
Claimants Trust (‘‘Trust’’) (the liability successor to Robins
for claims of those injured by the Dalkon Shield IUD) for leave
to file as amicus in support of the Petition for Writ of Cer-
tiorari; the Trust has filed a Motion to appear as amicus on
the merits.
Pursuant to U.S. Supreme Court Rule 37.3, the undersigned
amici requested, in writing, permission of the parties for
amici's participation. Petitioners refused; Respondent granted
permission. (See Exhibits A, B, C and D, attached.)
Respectfully submitted,
ROBERT A. MARCIS AMES F.
SPANGENBERG, SHIBLEY, | ne of —
TRACI, LANCIONE & LIBER KENNETH J. KNABE
2400 National City Center BROWN
1990 E. Ninth Street 14222 Maison Avene
Cleveland, OH 44114-3400 Cleveland, OH 44107-4510
(216) 696-3232 — (216) 228-7200
coma Be Ratios ~~ ae ae Cunae
ee — rown & Szaller Co., L.P.A.
MARTIN J. WILLIAMS
LARRY S. STEWART OHIO ACADEMY OF TRIAL
JEFFREY R. WHITE LAWYERS
ASSOCIATION OF TRIAL 400 Dublin Avenue
LAWYERS OF AMERICA Columbus, OH 43215
1050 31st Street, N.W. (614) 341-6800
aan a2 20007 Attorney S — Curiae Ohio
for Amicus Curiae ' a
Association of Trial Lawyers
i
QUESTION PRESENTED FOR REVIEW
Whether federal law requires the dismissal of state court
cases that appeared timely when filed, but proved untimely
under the retroactive application of Bendix Autolite Corp. v.
Midwesco Enterpnses, 486 U.S. 888 (1988).
TABLE OF CONTENTS
B. Robins’ Plan of Reorganization, and the
Creation of the Dalkon Shield Claimants
, RANE ely oS oS A 3
C. Assertion of the Statute of Limitation
Defense by the Dalkon Shield Claimants
Trust; Affirmance of Hyde Will Not Detri-
ment the Trust at the Expense of Ohio
eee 4
Il. SUMMARY OF ARGUMENT...................... 6
aT Sayan he a a a 7
A. When Retroactively Applying a Decision
of this Court Which Deemed a State Toll-
ing Statute Violative of the Commerce
Clause, the State’s Determination of a
Remedy is Consistent with Due Process
When it Balances a Fundamental Vested
Right of Access to the Courts Against the
Non-Fundamental Right of a Bar by
GEE TEs 9 rrr 7
1. The Ohio Supreme Court in Fact
Retroactively Applied Bendix.................. 7
IV Vv
Page Page
2. Having Retroactively Applied Bendix, 2. After Retroactively Applying a
as Mandated by Harper, the Ohio Decision of this Court Which
Supreme Court Had the Responsibility Deemed a State Tolling Statute
of Determining a Remedy, and Con- Violative of the Commerce Clause,
sistent With Due Process to be Ac- the State’s Determination of a
corded Petitioners Balanced the Fun- Remedy is Consistent With Due
damental Vested Right of Access to Process When it Weighs the
the Courts Against the Non- Remedial Principles of Chevron
Fundamental Right of a Bar by NR I On hd eS 12
EERE a re 8
a. Bendix Overturned Past
B. When Retroactively Applying a Decision Precedent on Which
of This Court Which Deemed a State Respondent Carol Hyde
Tolling Statute Violative of the Commerce Reasonably Relied............. ........ 15
Clause, the State’s Determination of a
Remedy is Consistent With Due Process b. Denying Retroactive Effect of
When It Considers (a) Whether the Deci- Bendix Does Not Retard or
sion to be Applied Retroactively Thwart its Purpose............ ........ 18
Establishes a New Principle of Law or
Overturns Clear Past Precedent on c. Substantial Inequitable Results
Which Litigants May Have Relied, (b) Would Occur if the Remedy
Whether Denying the Rule Retroactive Accorded Petitioner is Dismissal
Effect Will Retard its Operation in Light of Carol Hyde’s Complaint...... ........ 19
of the Rule’s History, Purpose and Effect
and, (c) Whether the Decision Could Pro- rec couesac 20
duce Substantial Inequitable Results if Ap-
plied Retroactively Without Benefit of Exhibit ‘‘A’’ — Petitioners’ objection to filing of
ie ced ee ete eUREL aah acess cvvesces 12 amicus cunae brief by Brown & Szaller Co., L.P.A....... la
1. The Ohio Supreme Court in Hyde Exhibit ‘‘B’’ — Petitioners’ objection to filing of
Retroactively Applied Bendix, per the amicus curiae brief by Spangenberg, Shibley, Traci,
PE Ge Bc cucccccnconase eccaeres 12 BE EE ee le 2a
Exhibit ‘‘C’’ — Petitioners’ objection to filing of
amicus curiae brief by the Ohio Academy of
Trial Lawyers and the Association of Trial Lawyers
Pe PCR GedEGL bub edkehe ese abeseuccnececece 3a
vl
Exhibit ‘‘D’’ — Respondent’s consent to filing of
amicus curiae brief by Brown & Szaller Co.,
L.P.A., Spangenberg, Shibley, Traci, Lancione &
Liber, The Ohio Academy of Trial Lawyers and
the Association of Trial Lawyers of America............. 4a
Exhibit ‘‘E’’ — Correspondence from the
Dalkon Shield Claimants Trust to ‘‘Counsel’’
Ci BE Dy Fa cas cae ccccewessenccesscccnccses 5a
Exhibit ‘‘F’’ — Corresondence from the
Dalkon Shield Claimants Trust to a Dalkon
Shield victim dated November 29, 1994................. 7a
Exhibit ‘‘G’’ — New York legislation
negating the statute of limitation
defense in Dalkon Shield cases...............00000005 13a
Exhibit ‘‘H’’ — Kansas legislation negating
the statute of limitation defense in Dalkon
os he ee eek eéenceeeuces 15a
Exhibit ‘‘I’’ — California legislation negating
the statute of limitation defense in
EEE CRI POR OTOP EEE TT ET ET 16a
Exhibit ‘‘J’’ — Order Denying Defendant's
Motion for Summary Judgment
in Froug v. A.H. Robins Co.,
No. 3-00-527 (G.D. Glo 1968)... 2 cc crccccccccccess 18a
Exhibit ‘‘K’’ — Memorandum and Order in
In Re Shary Nunley and other Plaintiffs v.
A.H. Robins Co., Inc., No. C-2-80-458 (S.D. Ohio,
WD. Betas BERR s ceccccccvcctecsicveccscccccccecs 26a
vil
TABLE OF AUTHORITIES
Cases: Page
Adams v. Sherk, 4 Ohio St. 3d 37,
446 N.E.2d 165 (1983)
American Trucking Assns., Inc., v. Smith,
496 U.S. 167, 110 S. Ct. 2323,
me 11, 14, 18
James B. Beam Distilling Co. v. Georgia,
501 U.S. 529, 111 S. Ct. 2439,
115 L.Ed.2d 481 (1991)
Bendix Autolite Corp. v. Midwesco Entreprises, Inc.,
486 U.S. 888, 108 S. Ct. 2218,
Cg EE passim
Chase Securities Corp. v. Donaldson,
325 U.S. 304, 65 S. Ct, 1137,
EL 9, 17
Chevron Oil Co. v. Huson, 404 U.S. 97,
92 S. Ct. 349, 30 L.Ed.2d 296 (1971).............. passim
Cohn v. G.D. Searle Co.,
ne tc cccecboueeus 19
Commonwealth Loan Co. v. Firestine,
148 Ohio St. 133, 73 N.E.2d 501 (1947)............ 15, 16
Coons v. American Honda Motor Co.,
94 N.J. 307, 463 A.2d 921, cert. den.
469 U.S. 1123, 105 S.Ct. 808,
EE 15, 18
Couts v. Rose, 152 Ohio St. 458,
ee os cs ee uwsdbeecavcene 16
vill
Page
Crespo v. Stapf, 128 N.J. 351,
i, enue cendensivesesebsuee 15
Durham v. Anka Research, Ltd., 60 Ohio App.
2d 239, 396, N.E.2d 799 (Ham. Cty. 1978)............. 17
Froug v. A.H. Robins Co., No. 3-80-527
A ee eee ee eT 18
Gregory v. Flowers, 32 Ohio St. 2d 48,
ee CD Nn. csc dea ese cdivecetadvdeccoceee 10
Gniffith v. Kentucky, 479 U.S. 314,
107 S. Ct. 708, 93 L.Ed.2d 649 (1987)...........- 0 eee 7
Harper v. Virginia Department of Taxation,
509 U.S. ___, 113 S. Ct. 2510,
BF 8 TES FE Gs ccc ccvnccvcccccccnegvecses passim
Hilliard v. A.H. Robins Co., 148 Cal. App. 3d
374, 196 Cal. Rptr. 117 (1983)........... eee eee eee eee 2
Hyde v. Reynoldsville Casket Co., 68 Ohio St..
3d 240, 626 N.E.2d 75 (1994)........... a ae eel passim
In Re Shary Nunley and Other Plaintiffs
v. A.H. Robins Co., Inc.,
No. C-2-80-458 (S.D. Ohio, W.D. Dayton,
TO eee pee Sep eeeeeeseues 18
Knaysi v. A.H. Robins Co., 679 F.2d
OE OR Oe I in cinc cedawevscesescctencdvsoees 2
May v. Leidl, 32 Ohio App. 3d 36,
513 N.E.2d 1347 (Gea. Cty. 1986).........-.-- eee eeee 17
McKesson Corp. v. Division of Alcoholic Beverages
and Tobacco, 496 U.S. 18, 110 S. Ct. 2238,
110 L.Ed.2d 17 (1990).......... ccc ce cece cece eee neeees 9
ix
Page
Mead Corp. v. Allendale Mut. Ins. Co.,
465 F. Supp. 355 (N.D. Ohio 1979).................... 17
Meekison v. Groschner, 153 Ohio St. 301,
ee oo ccacecvew’ 16
Moss v. Standard Drug Co., 159 Ohio St. 464,
ES ee 16
Obral v. Fairview General Hospital,
13 Ohio App. 3d 57,
468 N.E.2d 141 (Cuy. Cty. 1983)..................... 10
Ohio Brass Co. v. Allied Products Corp.,
339 F. Supp. 417 (N.D. Ohio 1972).................... 17
Palmer v. A.H. Robins Co., 684 P.2d 187,
CCH Prod. Liab. Rep. P10, 085,
38 U.C.C. Rept. Serv. (Callaghan)
RE SE ee 2
Partis v. Miller Equipment Co., 439 F.2d 262
aOR a Ee i ee 16, 17
Peerless Electric Co. v. Bowers,
164 Ohio St. 209,
as ive be obeceneus 11
Rodrigue v. Aetna Casualty & Surety Co.,
395 U.S. 352, 89 S. Ct. 1835,
BP NE MI I on cov cceccccccesccocces 12, 13 ,14
Seeley v. Expert, Inc., 26 Ohio St. 2d 61,
et I cc Cech cceecdseccecccvcece 16, 17
Smith v. New York Central Railroad Co.,
120 Ohio St. 45, 170 N.E. 637 (1945)...........0..0... 10
&4
Page
State ex rel. Tavenner v. Indian Lake
School District, 62 Ohio St. 3d 88,
De aden ee eeeterctesencons 11
Tetuan v. Robins, 241 Kan. 441,
en eo nseneeeosaonees 2
Thompson v. Horvath, 10 Ohio St. 2d 247,
— Bt - fe ere 16, 17
Title Guaranty & Surety Co. v.
McAllister Admx., 130 Ohio St. 537,
Lt BR ee ee ee 15, 17
Vostack v. Axt, 510 F. Supp. 217 (S.D. Ohio 1981)........ 17
Wack v. Lederle Laboratories, 666 F.Supp. 123
ct & “Sh ae rerrrrerrerrrT errs Tae 18
Worsham v. A.H. Robins Co., 734 F.2d 676
Ne co cob ks cebu se ch dbevsesuseecedees 2
IN THE
Supreme Court of the United States
October Term, 1994
No. 94-3
REYNOLDSVILLE CASKET CO., et al
Petitioners,
VS.
CAROL L. HYDE,
Respondent.
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF OHIO
AMICUS CURIAE BRIEF OF BROWN & SZALLER
CO., L.P.A., SPANGENBERG, SHIBLEY, TRACI,
LANCIONE & LIBER, THE ASSOCIATION OF
TRIAL LAWYERS OF AMERICA, AND THE OHIO
ACADEMY OF TRIAL LAWYERS IN SUPPORT
OF RESPONDENT
I. INTEREST OF THE AMICI
Interests of amici are fully described in the Motion accom-
panying this Brief.
A. A.H. Robins’ Dalkon Shield Litigation.
The Dalkon Shield IUD was a defective and dangerous in-
trauterine contraceptive device manufactured, promoted and
sold by the A.H. Robins Company (‘‘Robins’’) of Richmond,
Virginia from January 1971 to June 1974. The Dalkon Shield
2
spawned thousands of lawsuits! against Robins for a host of
injuries. To stem the continuing tide of Dalkon Shield lawsuits,
Robins filed for bankruptcy protection on August 21, 1985 in
the United States Bankruptcy Court, Eastern District of
Virginia.
During the bankruptcy proceeding, the court set a cut-off
date of April 30, 1986 for the filing of claims against Robins.
By this cut-off date, 179,983 Dalkon Shield victims (over 6,000
of whom were Ohio residents and some of whom had lawsuits
pending in Ohio state and federal courts against Robins when
Robins filed for bankruptcy protection) filed claims. A signifi-
cant portion of the Ohio residents who filed claims relied on
the provisions of the tolling statute (Robins was an out-of-state
corporation) when they and their attorneys determined when
to file claims.
All Dalkon Shield litigation pending against Robins was stayed
when Robins filed its bankruptcy petition on August 21, 1985,
and the Dalkon Shield litigants then filed their personal injury
claims in the bankruptcy. Other Ohio Dalkon Shield victims
who had not yet pursued litigation filed timely claims in Robins’
bankruptcy by April 30, 1986, and were likewise prohibited
from then pursuing litigation. Only within the last year have
any of the Ohio Dalkon Shield victims been released and per-
mitted to pursue litigation in the courts.
But for the Robins bankruptcy stay commenced in 1985,
the victims may well have had their claims resolved by settle-
ment or litigation prior to the 1988 decision of this Court in
1The Kansas Supreme Court in Tetuan v. Robins, 241 Kan. 441, 783
P.2d 1210 (1987) summarized Robins’ wrongful conduct and the dangers
of the Dalkon Shield at 783 P.2d 1240; see also Worsham v. A.H. Robins
Co., 734 F.2d 676 (11th Cir. 1984); Knaysi v. A.H. Robins Co., 679 F.2d
1366 (11th Cir. 1982); Palmer v. A.H. Robins Co., Inc., 684 P.2d 187,
CCH Prod. Liab. Rept. P10, 085, 38 U.C.C. Ref. (Colo. 1984); Hilliard
v. A.H. Robins Co., 148 Cal. App. 3d 374, 196 Cal. Rptr. 117 (1983).
3
Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888,
108 (1988) (hereinafter ‘‘ Bendix’’). Certainly they would have
been resolved prior to the 1993 decision of Harper v. Virginia
Department of Taxation, 509 U.S. ___, 113 S. Ct. 2510 (1993)
(hereinafter ‘‘Harper’’), in which case Chevron Oil v. Huson,
404 U.S. 97 (1971) (hereinafter ‘‘ Chevron Oil’’), would have
determined the appropriate remedial relief.
B. Robins’ Plan of Reorganization, and the Crea-
tion of the Dalkon Shield Claimants Trust.
Robins’ Plan of Reorganization, confirmed in 1988 and con-
summated in 1989, provided for a $2.33 billion trust fund to
compensate Dalkon Shield victims. The Dalkon Shield
Claimants Trust was created to assume Robins’ liability for
Dalkon Shield injuries. Monies are to be used by the Trust
to resolve cases by settlement and, failing that, to satisfy
judgments, obtained through arbitration or litigation. The Plan
further provided that
[t]he law to be applied to the settlement or trial of
claims shall be the law that is or would have been
applicable notwithstanding the pendency of the
Chapter 11 case; provided, however, that the
statutes of limitations and repose applicable to claims
are tolled in accordance with the Bankruptcy Code.
Trust Amicus Brief , App. C9.
If an offer of settlement from the Trust is rejected, the vic-
tim must attend a ‘‘settlement conference’’, set at the discre-
tion of the Trust, prior to instituting arbitration or litigation.
In some senses the term ‘‘settlement conference’’ is a
misnomer, since settlement is not discussed.? Therefore,
*See Exhibit E.
4
although the Trust is mantled with the responsibility to effec-
tuate settlement over the more cost consuming methods of
resolution by arbitration or litigation, in many instances set-
tlement is not possible because of the no-negotiation policy
adopted by the Trust. An offer made to a victim is truly a take
it or leave it offer. And if refused, man victims feel that the
rules? requested by the Trust and approved by the District
Court regarding choice-of-law and statutes of limitation in ar-
bitration make that forum unavailable and unattractive, leav-
ing only litigation to protect their rights. Those same rules
further prohibit Dalkon Shield victims from instituting litiga-
tion against the Dalkon Shield Claimants Trust until they are
‘‘certified’’ by the Trust — a process which has begun for
Ohio Dalkon Shield victims only within the last year.
C. Assertion of the Statute of Limitation Defense
by the Dalkon Shield Claimants Trust; Affirm-
ance of Hyde Will Not Detriment the Trust at
the Expense of Ohio Dalkon Shield Litigants.
When it is the defendant, the Trust asserts available limita-
tion defenses only against arguably the most seriously injured
—victims who seek more than $20,000 in damages.‘ Statutes
of limitation are not considered by the Trust when making of-
3At the request of the Trust, a July 1991 Order issued from the District
Court interpreting the Plan to provide, among other things, that absent
‘‘certification’’ by the Trust a claimant could not proceed to litigation, and
that any claimant electing arbitration rather than court adjudication would
proceed under Trust drafted choice-of-law and statute of limitation provi-
sions. The order, Administrative Order No. 1, was appealed, but as of
the writing of this Amicus Brief no decision has forthcome. A Petition for
a Writ of Mandamus to the United States Court of Appeals for the Fourth
Circuit was filed in this Court in November 1994.
‘See Exhibit F, correspondence from the Dalkon Shield Claimants Trust
to a Dalkon Shield victim, dated November 29, 1994.
5
fers of settlement, and are not raised in arbitrations in which
the victim seeks $20,000 or less in damages.
The Trust correctly notes that, because of the decision
below, it cannot successfully raise the statute in Ohio as a
defense, but fails to mention that, when the Ohio Dalkon Shield
victims filed claims, they were timely, and not barred by any
statute. The tolling statute they relied upon when many of
them filed timely claims was not held unconstitutional in Ben-
dix until after they filed claims.
The Trust suggests Hyde v. Reynoldsville Casket Co., 68
Ohio St. 3d 240, 626 N.E.2d 75 (1994) (hereinafter ‘‘Hyde’’)
‘“* .. . [benefits] Ohio Dalkon Shield claimants to the detri-
ment of claimants in other states and [encourages] the deple-
tion of Trust funds through litigation by Ohio claimants. . .’’
(Trust Amicus Brief at 1). Amici disagree for two reasons.
Finding inequities in the Trust’s selective use of statute of
limitation defenses, a number of state legislatures have pass-
ed legislation effectively negating the statute of limitation
defense in litigation against Dalkon Shield victims in their
states. (See, the statutes of New York, Kansas and Califor-
nia, attached hereto as Exhibits G, H. and I.) Therefore, Hyde,
rather than being a ‘‘detriment’’ to claimants in other states,
simply puts Ohio Dalkon Shield victims on an equal footing
with them.
Second, approximately two-thirds of the corpus of the Trust
remains, while the vast majority of timely claims (estimated
at 90%) have been resolved. There is, therefore, no chance
that the Ohio Dalkon Shield victims who claim serious injury
in litigation will cause a shortfall in the approximate $1.5 billion
dollars remaining in the fund.
6
Il. SUMMARY OF ARGUMENT
The Ohio Supreme Court decision below held that a retroac-
tive application of Bendix did not bar Respondent Carol Hyde’s
cause of action. Bendix deemed the Ohio tolling statute upon
which she relied violative of the Commerce Clause, and amici
agree that Harper mandated the retroactive application of
Bendix.
The Court below did retroactively apply Bendtx, but it cor-
rectly recognized that the ‘‘application’’ of the retroactive deci-
sion of this Court included the duty by the state to determine,
consistent with due process, the appropriate remedy to be
accorded the party aggrieved by the infirm statute.
A statute of limitation is not a fundamental nght, the loss
of which is a due process violation. Conversely, the Ohio Con-
stitution guarantees the right of access to its courts. The Ohio
Supreme Court’s remedy analysis weighed the non-
fundamental nght of limitation of Petitioners against the vested
right of access to the courts accorded Respondent by the Ohio
Constitution. Under this analysis, the Court determined that
the constitutional nght substantially outweighed the right of
bar of limitation, and refused to give Petitioners a remedy that
would strip Respondent of her vested night of access to court.
In Chevron Oil, this Court enunciated equitable principles
which are as applicable to remedy analysis as they are to
choice-of-law inquiries. Utilizing those principles to determine
the remedy to be accorded, the Ohio Supreme Court deter-
mined that Bendix overturned ‘‘clear past precedent’’ which
was reasonably relied upon by her, and again refused to dismiss
her complaint.
The remedy analysis by the Ohio Supreme Court was proper,
equitable and balanced. The decision below should be affirmed.
7
III. ARGUMENT
A. When Retroactively Applying a Decision of this
Court Which Deemed a State Tolling Statute
Violative of the Commerce Clause, the State’s
Determination of a Remedy is Consistent With
Due Process When it Balances a Fundamental
Vested Right of Access to the Courts Against the
Non-Fundamental Right of a Bar by Limitation.
1. The Ohio Supreme Court in Fact
Retroactively Applied Bendix.
In Harper, the plurality decision announced by Justice
Thomas made clear that
[w]hen this Court applies a rule of federal law to the
parties before it, that rule is the controlling inter-
pretation of federal law and must be given full
retroactive effect in all cases still open on direct
review and as to all events, resardless of whether
such events predate or postdate our announcement
of the rule.
Id., 113 S. Ct. at 2517.
Bendix continued the recognition enunciated in James B.
Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) (her-
reinafter ‘‘Beam’’), that the Supremacy Clause forbids
‘‘federal retroactivity doctrine to be supplanted by the invoca-
tion of a contrary approach to retroactivity under state law.’’
Harper, 113 S. Ct. at 2519. Harper put on the same plane
in the civil arena the criminal retroactivity doctrine expressed
in Gnffith v. Kentucky, 479 U.S. 314 (1987).
The Court below characterized its own decision as one which
‘* _. . does not contravene the federal constitutional analysis
in Bendix, but, instead, allows Section 16, Article I of the Ohio
8
Constitution and the Commerce Clause of the federal Con-
stitution to co-exist.’’ Hyde, 626 N.E.2d at 78. The Ohio
Supreme Court adhered to the retroactivity mandate of
Harper, but the refusal to bar vested claims which had accrued
prior to announcement of Bendix was the product of remedy
analysis. The holding below was correctly characterized by
amicus Dalkon Shield Claimants Trust:
In the second part of [the Ohio Supreme Court’s]
opinion, the Ohio Supreme Court holds, in the alter-
native, that the retroactive application of Bendtx does
not require a dismissal of Respondent’s claims.
Trust Amicus Brief at 7.
The holding of the Ohio Supreme Court was the result of
its applied understanding of this Court’s decision in Harper.
The Court below phrased that understanding of Harper’s dic-
tates as follows:
.. .[A] state, when retroactively applying a Supreme
Court decision, ‘‘retains flexibility’’ in fashioning ap-
propriate relief . . .(citation omitted). . . Harper
allows state courts to tailor their own remedies as
they determine the manner in which a Supreme
Court opinion is to be retroactively applied.
Hyde, 626 N.E.2d at 77 (emphasis supplied).
2. Having Retroactively Applied Bendix, as Man-
dated by Harper, the Ohio Supreme Court Had
the Responsibility of Determining a Remedy,
and Consistent With Due Process to be Accord-
ed Petitioners Balanced the Fundamental
Vested Right of Access to the Courts Against the
Non-Fundamental Right of a Bar by Limitation.
Once retroactivity of a federal decision is applied by the state
court, the state must then determine, consistent with federal
9
due process, the appropriate remedy to be accorded the litigant
whose rights have been violated.
. . . The remedial inquiry is one governed by state
law, at least where the case originated in state court
. . . [T]he antecedent choice-of-law question is a
federal one where the rule at issue itself derives from
federal law, constitutional or otherwise.
Beam, 501 U.S. at 535.
This Court answered the antecedent question in Bendix,
and held Ohio’s tolling statute unconstitutional. Having made
that decision retroactive by Beam and Harper, the remedial
inquiry, ‘‘t.e., whether the party prevailing under a new rule
should obtain the same relief that would have been awarded
if the rule had been an old one’’ (Beam, 501 U.S. at 535),
is then for the state to decide consistent with federal due
process.°
This Court recognized in Bendix that the Ohio statute of
limitation it deemed violative of the Commerce Clause was
‘‘an integral part of the legal system and . . . relied upon to
protect the liabilities of persons and corporations active in the
commercial sphere’’, but the statute of limitation was not a
‘‘fundamental right’’. Bendix, 486 U.S. at 893, citing Chase
Securities Corp. v. Donaldson, 325 U.S. 304, 314 (1945).
Chase held that the taking of the bar of a statute of limitation
from a defendant by retroactive legislation is not a per se Four-
teenth Amendment violation.
5**In fact, the only federal question regarding remedies is whether the
relief afforded is sufficient to comply with the requirements of due pro-
cess. See McKesson Corp. v. Division of Alcoholic Beverages and Tobacco,
496 U.S. 18, 31-52, 110 S.Ct. 2238, 2247-2258, 110 L.Ed.2d 17 (1990).’’
Beam at 2443 (O’Connor,J., dissenting).
10
The Fourteenth Amendment does not make an act
of state legislation void merely because it has some
retrospective operation. What it does forbid is tak-
ing of life, liberty or property without due process
of law. . . . [Certainly it cannot be said that lifting
the bar of a statute of limitation so as to restore a
remedy lost through mere lapse of time is per se
an offense against the Fourteenth Amendment.
Id., 325 U.S. at 304-05.
A statute of limitation is not a fundamental right protected
by the Fourteenth Amendment, and due process is not violated
when the benefits of a statute of limitation are taken from a
defendant by retroactive legislation. The Ohio Supreme Court
has likewise recognized that judicial retroactive taking of
statute of limitation benefits by court decision (recognizing a
‘discovery rule’’ as opposed to ‘‘termination of patient rela-
tionship’’ for commencement of a medical malpractice cause
of action) is not the taking of a ‘‘vested right’.
Although the new rule has the potential of exposing
doctors (and their insurance companies) to liability
for greater periods of time than did the old rule, it
is a procedural change and does not entail the disrup-
tion of any contractual or vested right.
Obral v. Fairview General Hospital, 13 Ohio App. 3d 57, 59-60,
468 N.E.2d 141 (Cuy. Cty. 1983), citing Gregory v. Flowers,
32 Ohio St. 2d 48, 290 N.E.2d 181 (1972).
Conversely, the pursuit of ‘‘a cause of action existing at the
time of a remedial [limitation] statute is a vested right ‘‘that
cannot be taken away’’ under Ohio law. Gregory v. Flowers,
32 Ohio St. 2d 48 290 N.E.2d 181 (1972), citing Smith v. New
York Central Railroad Co., 120 Ohio St. 45 170 N.EE. 637
(1945). Nor can such a vested right be taken by judicial
11
decision. Peerless Eleciric Co. v. Bowers, 164 Ohio St. 209
129 N.E.2d 467 (1955). In accord, State ex rel. Tavenner v.
Indian Lake School District, 62 Ohio St. 3d 88, 578 N.E.2d
464 (1955). The Ohio Constitution forbids the taking
of a vested cause of action from a personal injury plaintiff
because it ‘‘would totally destroy an accrued substantive
right’’. Adams v. Sherk, 4 Ohio St. 3d 37, 446 N.E.2d 165
(1983).
The Court below was charged by Beam and Harper to per-
form a remedial analysis consistent with due process, and in
so doing could consider the individual equities in the analysis.
Justice Souter in Beam counseled, ‘‘nothing we say here
precludes consideration of individual equities when deciding
remedial issues in particular cases.’’ Beam, 501 U.S. at 543.
Weighing the remedy to be accorded Petitioners, the lif-
ting of the ban of the statute of limitation against the loss to
a litigant of her Ohio Constitutionally protected vested right
of access to court, the Hyde court denied Petitioners’ dismissal
of the cause of action brought against them by Carol Hyde.
The decision was simply the result of the ‘‘consideration of
individual equities’, permitted by Chevron Oil. The Court
weighed the Ohio Constitutional right of access to court against
a right protected neither by Federal nor state Constitution.
The Court’s remedy did not provide Petitioners with a bar
of limitation, but such a result was proper because relief may
be ‘‘denied ‘retroactive’ effect’’ in the sense that indepen-
dent principles of law [may] limit the relief that a court may
provide under current law.’’ American Trucking Assns., Inc.
v. Smith, 496 U.S. 167, 209 (1990) (Stevens, J., dissenting).
12
B. When Retroactively Applying a Decision of This
Court Which Deemed a State Tolling Statute
Violative of the Commerce Clause, the State’s
Determination of a Remedy is Consistent With
Due Process When It Considers (a) Whether the
Decision to be Applied Retroactively Establishes
a New Principle of Law or Overturns Clear Past
Precedent on Which Litigants May Have Relied,
(b) Whether Denying the Rule Retroactive Ef-
fect Will Retard its Operation in Light of the
Rule’s History, Purpose and Effect and, (c)
Whether the Decision Could Produce Substan-
tial Inequitable Results if Applied Retroactive-
ly Without Benefit of Remedy.
1. The Ohio Supreme Court in Hyde
Retroactively Applied Bendix, per the
Mandate of Harper (see Argument (A)(1),
supra).
2. After Retroactively Applying a Decision
of this Court Which Deemed a State
Tolling Statute Violative of the Com-
merce Clause, the State’s Determination
of a Remedy is Consistent With Due Pro-
cess When it Weighs the Remedial Prin-
ciples of Chevron Oil.
In Chevron Oil, the decision in Rodrigue v. Aetna Casualty
& Surety Co., 395 U.S. 352 (1969), (holding that Louisiana's
one-year limitation on personal injury actions applied to ac-
tions arising on the outer continental shelf), did not require
dismissal, because to do so would deprive the plaintiff of the
right to proceed with litigation on the basis of unforeseeable
superseding legal doctrine.
13
The plaintiff in Chevron Oil had instituted the action more
than one year before Rodrigue had been decided. As a result
of Rodrigue, however, the plaintiff's action was time barred
more than two years before Rodrigue was decided. In such
circumstances, this Court concluded that Rodrigue did not re-
quire retroactive remedies based on a consideration of the
following three factors:
First, the decision to be applied non-retroactively
must establish a new principle of law, either by over-
ruling clear past precedent on which litigants may
have relied, or by deciding an issue of first impres-
sion whose resolution was not clearly foreshadow-
ed. Second, it has been stressed that ‘‘we must .
. . weigh the merits and demerits in each case by
looking to the prior history of the rule in question,
its purpose and effect, and whether retrospective
operation will further or retard its operation.’’ Final-
ly, we have weighed the inequity imposed by
retroactive application for ‘‘where a decision of this
Court could produce substantial inequitable results
if applied retroactively, there is ample basis in our
cases for avoiding the ‘injustice or hardship’ by a
holding of non-retroactivity.’’
Chevron Oil, 404 U.S. at 106-07.
State courts may be guided by similar equitable principles
in their remedial analysis of the effect of application of a retroac-
tive decision of this Court. ’’ The generalized enquiry permits
litigants to assert, and the courts to consider, the equitable
and reliance interests of parties absent but similarly situated.’’
Beam, 501 U.S. at 543. The equitable principles that guided
this Court in Chevron Oil have, at times, been characterized
as ‘‘remedial principle[s] for the exercise of equitable discre-
14
tion’’ (American Trucking Assns. v. Smith, 496 U.S. 167, 220
(1990) (hereinafter Amencan Trucking) (Stevens, J., dissen-
ting) rather than ‘‘choice-of-law principles.’’ (/d.)
Thus, the principles that drove Chevron Oil, whether cast
as choice-of-law or remedial principles, are fully applicable
here, and it was appropriate for the Court below to consider
them when determining the remedy to be accorded after
retroactive application of Bendix. Rodrigue was a case of first
impression, as was Bendix. Rodrigue effectively overruled a
long line of decisions; so, too, Bendix overruled a long line
of Ohio cases upholding the Ohio tolling statute. When Respon-
dent filed her complaint, just as the injured party in Chevron
Oil, the most she could do was ‘‘rely on the law as it then
was.’” Id., 404 U.S. at 108. The Court in Hyde below had
the same reluctance as this Court in Chevron Oil to abruptly
terminate a lawsuit and thereby deprive the injured party of
any remedy whatsoever on the basis of ‘‘a subsequent deter-
mination . . . [she] could not have foreseen.’’ Hyde, 626
N.E.2d at 78.
Use of Chevron Oil principles by the Hyde Court in its
remedial analysis of the ‘‘retroactive effect’’ (Amencan Truck-
ing , 496 U.S. at 209, (Stevens, J., dissenting) of a retroac-
tivity bar of limitation was especially appropriate.
. . .Chevron Oil involved the application of a statute
of limitations, an area over which the federal courts
historically have asserted equitable discretion to craft
rules of tolling, laches and waiver.
Id., at 221 (Stevens, J., dissenting)
15
a. Bendix Overturned Past Precedent on Which
Respondent Carol Hyde Reasonably Relied.®
The finding by the Court below that Respondent reasonably
relied upon the statute and ‘‘could not have foreseen that [it]
would be struck down’’ (Hyde, 626 N.E.2d at 77) is well sup-
ported. A review of the Ohio tolling statute cases demonstrate
that the statute was uniformly applied to out-of-state corpora-
tions not subject to personal jurisdiction and was never held
to be unconstitutional until Bendix.
In Title Guaranty & Surety Co. v. McAllister Admx., 130
Ohio St. 537, 200 N.E. 831 (1936), the Court held that if the
plaintiff could obtain service within the limitations period, a
defendant corporation was not ‘‘out of the state’’ or ‘‘con-
cealed’’ within the meaning of the tolling statute.
The holding of Title Guaranty was soon severely limited,
then forever discarded altogether.
The Ohio Supreme Court began the limiting process by first
distinguishing Title Guaranty. In Commonwealth Loan Co. v.
Firestine, 148 Ohio St. 133, 73 N.E.2d 501 (1947), the court
held that the tolling statute tolled the running of the statute
of limitations against a person, as distinct from a corporation,
absent from the state, against whom judgment might be taken
pursuant to a cognovit note.
Petitioner's assertion that ‘‘in Crespo v. Stapf, 608 A.2d 241 (1992),
the New Jersey Supreme Court decided essentially the same issue and
concluded that a Chevron Oil Company v. Huson analysis dictated the
retroactive application of Bendix Autolite Corp. v. Midwesco Enterprises,
Inc.’’ (Petitioners’ Brief, at 27) is in error. The New Jersey Supreme
Court did not retroactively apply Bendix, but instead relied heavily on the
prospective application of its earlier decision in Coons v. American Honda
ng Co., Inc., 94 N.J. 307, 463 A.2d 921 (1983), cert. denied 469 U.S.
123.
16
Three years later, in Couts v. Rose, 152 Ohio St. 458, 90
N.E.2d 139 (1950), the Court held that a person who leaves
the state after the accrual of a cause of action against him tolls
the running of the statute of limitations. Couts was quickly
followed by Meekison v. Groschner, 153 Ohio St. 301, 91
N.E.2d 680 (1950), which held that the savings statute ap-
plies to a defendant obligated under a promissory note irrespec-
tive of whether the person left the state after execution of
the note or was out of the state when he executed the note.
Thus, in a span of four years, the Ohio Supreme Court mov-
ed completely away from using service of process as a
measurement, and began focusing exclusively on the defen-
dant’s absence from the state.
In Moss v. Standard Drug Co., 159 Ohio St. 464, 112 N.E.2d
542 (1953), the Ohio Supreme Court expanded the scope of
the statute when it held that the word ‘‘person’’ in the sav-
ing statute included a corporation.
Thompson v. Horvath, 10 Ohio St. 2d 247, 227 N.E.2d 225
(1967), held that if a domestic corporation (as opposed to a
‘‘person’’, Id. at 406) leaves Ohio but can still be served by
substitute service, the tolling statute does not apply. And Par-
tis v. Miller Equipment Co., 439 F.2d 262 (6th Cir. 1971),
followed the new Ohio Supreme Court lead of Thompson —
short-lived as it was.
Just one month later, the Ohio Supreme Court decided Seeley
v. Expert, Inc., 26 Ohio St. 2d 61, 269 N.E.2d 121 (1971).
The Seeley court held that application of the tolling statute is
not limited to persons who were residents of the state and
then left after the accrual of a cause of action, but also ex-
tended to persons who were never residents of the state. In
reliance on Couts and Commonwealth Loan Co., the Seeley
court decided that the tolling statute applies even though ser-
vice of process via the long arm statute could have been ob-
tained at any time.
17
The Seeley court specifically rejected Title Guaranty and
Thompson, and seemingly limited its application to their specific
facts. The Court held that application of the tolling statute is
proper so long as the defendant could not be served by per-
sonal service. Since personal service requires an in-state
presence, the Court was stating clearly that if a defendant has
no presence within the state of Ohio, the tolling statute tolls
the statute of limitations.
In Ohio Brass Co. v. Allied Products Corp., 339 F. Supp.
417 (N.D. Ohio 1972), an Ohio district court specifically held
that Seeley, not Partis, governed the application of the tolling
statute and that the tolling statute applies so long as the defen-
dant is not subject to personal service.
In Durham v. Anka Research, Ltd., 60 Ohio App. 2d 239,
396 N.E.2d 799 (Ham. Cty. 1978), the court of appeals held
that, in reliance on Seeley, the tolling statute applies to an out-
of-state corporation, even though it was amenable to service
of process under the long arm statute. Likewise, in reliance
on Seeley and Ohio Brass, the district court in Mead Corp. v.
Allendale Mut. Ins. Co., 465 F. Supp. 355 (N.D. Ohio 1979),
held that a defendant who is not amenable to personal service
is out-of-state within the meaning of the tolling statute.
In 1981 a federal district court in Vostack v. Axt, 510 F. Supp.
217 (S.D. Ohio 1981) relied upon this Court’s decision in Chase
when it held that ‘‘defendants have no fundamental right to
the protection of limitations statutes.’’ Vostack, 510 F.Supp.
at 221. Then, applying the rational basis test, the court deter-
mined the statute did not violate due process.
Prior to the filing of Respondent’s complaint against Peti-
tioners, the ‘‘most recent interpretation of [the] statute by
the Court of Appeals in her appellate district’ (Hyde, 245),
May v. Leidl, 32 Ohio App. 3d 36, 513 N.E.2d 1347 (Gea.
18
Cty. 1986), held that ‘‘a corporation that is neither physically
present in Ohio nor has a statutory agent in Ohio does not
receive the protection of the two-year limitations period for
personal injury . . .’’ Jd., at 37. A federal district court the
next year (1987) agreed. Wack v. Lederle Laboratories, 666
F. Supp. 123 (N.D. Ohio, E.D. 1987).
Prior to its August 1985 Petition in Bankruptcy, Robins un-
successfully challenged the tolling statute in litigation involv-
ing the Dalkon Shield in Ohio. In an attempt to dismiss claims
of Dalkon Shield victims who relied on its provisions, Robins
argued that the statute was violative of the Commerce Clause.
Chief Judge Rubin held the statute constitutional as applied
to toll limitations against Robins, finding the statute neither
inf irm per se nor under a balancing test. Froug v. A.H. Robins
Co., No. 3-80-527 (S.D. Ohio, 1982) (see Exhibit J attach-
ed). Robins then unsuccessfully argued that Froug should be
overruled based on Coons v. American Honda Motor Co., Inc.,
94 N.J. 307, 463 A.2d 921 (1983), cert. den., 469 U.S. 1123
(1985). In Re Shary Nunley and Other Plaintiffs v. A.H. Robins
Co., Inc., No. C 2-80-458 (S.D. Ohio, W.D. Dayton, 1983).
(See Exhibit K.)
b. Denying Retroactive Effect of Bendix Does
Not Retard or Thwart its Purpose.’
If denial of the ‘‘retroactive effect’’ (American Trucking, at
209) (Stevens, J., dissenting) of Bendix to Petitioners thwarts
the purpose of Bendix, such a remedy would be impermissi-
ble. Bendix was decided by this Court almost seven years ago.
It is extremely unlikely that anyone other than Carol Hyde
and the Ohio Dalkon Shield claimants will benefit from such
7The Chevron Oil Court did not discuss its analysis of this factor. Ap-
parently, the Court found it satisfied in a statute of limitations case by
finding of reasonable reliance and the substantially inequitable result of
dismissal.
19
a remedy. When Bendix was decided about seven years ago,
Justice Scalia questioned then whether or not ‘‘a significant
burden’’ (/d., at 888) was placed on interstate commerce by
the Constitutionally infirm Ohio tolling statute. Given that vir-
tually the only litigants today whose right of access to court
will benefit from denying the retroactive effect of Bendix in-
clude Carol Hyde and the Ohio Dalkon Shield victims, the
burden is infinitesimal and does not thwart the purpose of
Bendix.
As the New Jersey Supreme Court, and later the Third Cir-
cuit Court of Appeals, analyzed:
[Cjertainly, any inhibiting effect the statute might
have on foreign corporations and others con-
templating doing business in New Jersey vanishes
once the statute is invalidated whether or not that
invalidation is retroactive.
Cohn v. G.D. Searle Co., 784 F.2d 460, 465 (3d Cir. 1986).
Out-of-state corporations are no longer the subject of
discrimination in Ohio. Honoring the reliance of Carol Hyde
does not retard the Bendix rule.
c. Substantial Inequitable Results Would Oc-
cur if the Remedy Accorded Petitioners is
Dismissal of Carol Hyde’s Complaint.
The cases are clear that the third element of the Chevron
test is met in most statute of limitation situations. This Court
in Chevron Oil observed that
[i]t would produce the most substantial inequitable
results to hold that the respondent slept on his rights
at a time when he could not have known the time
limitation that the law imposed on him.
Chevron Oil, at 404 U.S. 108.
20
In the words of the Chevron Oil court, ‘‘nonretroactive ap-
plication here simply preserves [Carol Hyde’s] right to a day
in court.”’ Chevron Oil, 404 U.S. at 108.
IV. CONCLUSION
The state court had a duty to determine consistent with due
process the remedy to be accorded Petitioners when retroac-
tively applying a decision of this Court to the parties before it.
It was proper for the Court below to consider in its first
analysis the equitable reliance factors enunciated in Chevron
Oil. It was likewise proper in its second analysis to weigh the
Ohio constitutional right of access to court against the right
to a statute of limitation which is not accorded either Federal
or state Constitutional protection. |
For the foregoing reasons, the decision below should be
affirmed.
Respectfully submitted,
ROBERT A. MARCIS JAMES F. SZALLER
SPANGENBERG, SHIBLEY, of Record
TRACI, LANCIONE & LIBER F. SZALLER
2400 National City Center J. KNABE
1990 E. Ninth Street BROWN & SZALLER CO.,
Cleveland, OH 44114-3400 L.P.A.
14222 Madison Avenue
Cleveland, OH 44107-4510
(216) 228-7200
Attorneys for Amicus Curiae
Brown & Szaller Co., L.P.A.
MARTIN J. WILLIAMS
OHIO ACADEMY OF TRIAL
LAWYERS
1050 31st Street, N.W. 400 Dublin Avenue
Washi , D.C. 20007 Columbus, OH 43215
(202) 3500 (614) 341-6800
Attorneys for Amicus Cunae Attorney for Amicus Curiae Ohio
Amencan Tnal Lawyers Academy of Trial Lawyers
la
EXHIBIT A
WARREN and YOUNG
Attorneys at Law
134 West 46th Street P.O. Box 2300
Ashtabula, Ohio 44004
(216) 997-6175
Fax (216) 992-9114
December 2, 1994
VIA FACSIMILE TRANSMISSION
228-7200
James F. Szaller, Esq.
BROWN & SZALLER CO., L.P.A.
Atrium Office Plaza
668 Euclid Avenue, Suite 214-A
Cleveland, OH 44114
Re: Case No. 94-3
United States Supreme Court
Reynoldsville Casket Co., et al., Petitioners
v. Carol L. Hyde, Respondent
Dear Mr. Szaller:
This is to confirm our recent telephone conversation at which
time I indicated to you that Petitioners, Reynoldsville Casket
Co., and John M. Blosh, do not consent to your appearance
2a
EXHIBIT B
WARREN and YOUNG
Attorneys at Law
134 West 46th Street P.O. Box 2300
Ashtabula, Ohio 44004
(216) 997-6175
Fax (216) 992-9114
December 7, 1994
VIA FACSIMILE TRANSMISSION
AND REGULAR MAIL
696-3924
Robert A. Marcis, Esq.
SPANGENBERG, SHIBLEY, TRACI,
LANCIONE & LIBER
1500 National City Bank Bldg.
629 Euclid Avenue
Cleveland, OH 44114
Re: Case No. 94-3
United States Supreme Court
Reynoldsville Casket Co., et al., Petitioners
v. Carol L. Hyde, Respondent
Dear Mr. Marcis:
This is to confirm that Petitioners, Reynoldsville Casket Co.
and John M. Blosh, do not consent to your appearance as
amicus curiae in the captioned case.
Very Truly Yours,
/s/ William E. Riedel
William E. Riedel
WER: djk
3a
EXHIBIT C
WARREN and YOUNG
Attorneys at Law
134 West 46th Street P.O. Box 2300
Ashtabula, Ohio 44004
(216) 997-6175
Fax (216) 992-9114
December 9, 1994
VIA FACSIMILE TRANSMISSION
AND REGULAR MAIL
228-7207
James F. Szaller, Esq.
BROWN & SZALLER CO., L.P.A.
Atrium Office Plaza
668 Euclid Avenue, Suite 214-A
Cleveland, OH 44114
Re: Case No. 94-3
United States Supreme Court
Reynoldsville Casket Co., et al., Petitioners
v. Carol L. Hyde, Respondent
Dear Mr. Szaller:
This is to confirm that Petitioners, Reynoldsville Casket Co.
and John M. Blosh, do not consent to your appearance as
amicus curiae in the captioned case on behalf of the Ohio
Academy of Trial Lawyers and the Association of Trial
Lawyers of America.
Very truly yours,
s/s William E. Riedel
William E. Riedel
WER:djk
4a
EXHIBIT D
EARDLEY & ZULANDT
Attorneys and Counsellors at Law
114 East Park Street | Chardon, Ohio 44024
Telephone (216) 286-6117
Fax (216) 286-6138
December 5, 1994
Mr. James F. Szaller
BROWN & SZALLER CO., L.P.A.
14222 Madison Avenue
Cleveland, Ohio 44107-4510
Re: Carol L. Hyde vs. Reynoldsville Casket Co.,
et al.
Case No. 92-1682
U.S. Supreme Court Case No. 94-3
Dear Mr. Szaller:
Pursuant to our telephone conversation of today’s date, I
grant permission for you to file an Amicus Brief in the above
styled matter on behalf of Dalkon Shield’s victims who are
represented by Brown & Szaller and those represented by
Spangenber, Shipley, Traci, Lancione and Liber.
I also give permission for you to file an Amicus Brief in the
above styled matter on behalf of the Ohio Academy of Trial
Lawyers and the Association of Trial Lawyers of America.
Sincerely,
EARDLEY & ZULANDT
/s/ David J. Eardley
David J. Eardley
DJE:vkk
9a
EXHIBIT E
DALKON SHIELD CLAIMANTS TRUST
CLAIMS RESOLUTION FACILITY
POST OFFICE BOX 444
RICHMOND, VIRGINIA 23203
TELEPHONE 1-804-783-8600
FAX 1-804-782-0156
August 9, 1993
Dear Counsel:
I am writing in an effort to clarify some misconceptions about
the purpose of the Trust’s in-depth review/settlement con-
ference process and to reiterate the Trust’s ‘‘no negotiation’’
policy. Although we have stated our policy in writing on
numerous occasions, some lawyers think the settlement con-
ference will be a negotiating session.
The purpose of the in-depth review is to provide a claimant
with a re-review of her claim. As the first step of the in-depth
review, the Trust conducts a full audit of the claimant’s medical
records. Following this audit, and with the benefit of the ad-
ditional information it produces, the Trust re-reviews the claim
at a more thorough, ‘‘in-depth’’ level. Approximately, 90%
of initial early settlement offers remain the same after the in-
depth review. Of the 10% that change, about half go down
and about half go up. The changes from the initial settlement
offers are due to the full audit and closer scrutiny of the claims.
The purpose of the settlement conference is for Trust
representatives to explain the strengths and weaknesses of
your client’s claim based on the medical records. It is not a
negotiating session and the Trust’s settlment offer cannot be
changed through negotiations with the Trust representatives.
6a
Very simply, the Trust’s representatives cannot negotiate at
settlement conferences.
The Trust’s settlement conference representatives are not
lawyers and are not trained to answer any legal questions or
to comment on legal issues. Indeed, at the time of the settle-
ment conference, no lawyer for the Trust has undertaken any
effort to analyze the claim to determine appropriate legal
defenses. No Trust lawyers are involved in the evaluation of
the claim for purposes of extending an initial settlement of-
fer, conducting the in-depth review and settlement conference,
or extending final settlement offers. Counsel for the Trust do
not analyze a claim unless or until a claimant rejects her final
offer and proceeds to trial or regular arbitration.
The Trust’s no-negotiation policy continues after a final of-
fer has been rejected by a claimant or has been withdrawn
90 days after the settlement conference. As the Trust has
previously stated, once an offer has been withdrawn and a case
has been certified for litigation or arbitration, neither the
original offer nor any other amount is available to the claimant.
Many claimants mistakenly believe that settlement still is an
option after a case has been certified.
Because of the Trust’s fiduciary obligation to preserve its
assets for all claimants and its commitment to make fair and
best and final offers during the claims process, the Trust will
not settle a case that is in litigation or arbitration. For the same
reasons, the Trust, based on the facts and circumstances of
each case and upon the advice of counsel, will assert all
available defenses in these cases.
Sincerely,
/s/ Georgene M. Vairo
Georgene M. Vairo, Chairperson
Dalkon Shield Claimants Trust
7a
EXHIBIT F
DALKON SHIELD CLAIMANTS TRUST
Claims Resolution Facility
Post Office Box 444
Richmond, Virginia 23203
Telephone: 1-804-343-4408
FAX: 1-804-782-0156
Michael M. Sheppard
Executive Director
By Certified Mail,
Return Receipt Requested
November 29, 1994
Donna R Harper-Brooks
C/O BROWN & SZALLER COL PA
14222 MADISON AVENUE
CLEVELAND OH 44107-4510
Claim Number — DS237965
Dear Donna R Harper-Brooks:
If you do not accept your final offer within the 90 day period
following your Settlement Conference, the Trust will send you
an election form. You must complete this election form and
return it to the Trust if you wish to pursue your Dalkon Shield
claim through trial, binding arbitration or Alternative Dispute
Resolution (‘‘ADR’’). The option to accept your final offer will
remain available until you complete the election form and it
is received by the Trust.
8a
Certification Process
Once the Trust receives a properly completed election form,
it will take appropriate steps with the United States District
Court for the Eastern District of Virginia (’’the Virginia
Court’’) to certify you to go forward to trial, binding arbitra-
tion or ADR. The Trust will not be able to ask the Virignia
Court to certify you to proceed with trial or binding arbitra-
tion unless we have received from you a written settlement
proposal. Please note that this settlement proposal will not
be used to negotiate your claim but is only a step that is
necessary to comply with section E.4 of the Claims Resolu-
tion Facility (‘“‘CRF’’).
Once the Virginia Court has entered a certification order,
you will be able to file or refile a lawsuit. If you elect binding
arbitration or ADR, the Trust will initiate the process in ac-
cordance with the arbitration or ADR Rules, as appropnate,
immediately upon receipt of the certification order. You may
not proceed with litigation, arbitration or ADR until your claim
is certified by the Virginia Court.
Considerations for Electing Trial or Arbitration
Before you decide whether to accept your offer or proceed
with litigation or arbitration you should consider the following:
— The Trust will withdraw your offer when you elect ar-
bitration or trial.
— The Trust will be your adversary in trial or arbitration
and will vigorously defend against your claim.
— During the claims review process, the Trust did not
review your claim from a legal standpoint. No lawyers
looked at or evaluated your claim to determine its
potential weaknesses. Once your case is in trial or ar-
bitration, the Trust will be represented by legal counsel
9a
who will advise it on which defenses to assert, including
whether the statute of limitations may be applicable.
The CRF permits the Trust to use all available defenses
in trial. The Trust also may use all available defenses
in binding arbitration, except for absence of product
defect.
Any award that you may receive in litigation or arbitra-
tion will be governed by what is referred to as the
‘‘holdback.’’ This means if you receive a judgment or
award that exceeds both $175,000 and your final Op-
tion 3 offer amount, you may not receive all of your
judgment or award immediately. The Trust will pay
$175,000 or the Trust’s final settlement offer amount,
whichever is greater, and will ‘‘hold back’’ the re-
mainder until satisfied that enough money remains to
pay all valid, timely Dalkon Shield Claims. If suffici-
ent funds remain once all valid, timely Dalkon Shield
Claims have been paid, the Trust will pay propor-
tionately any unpaid amount from its remaining assets.
The holdback allows the Trust to fulfill its obligation
to take steps to ensure that everyone with valid, timely
claims receives compensation for their injuries. There
is no holdback in ADR.
(Note: The Virignia Court’s Amended Administrative
Order No. 1, a copy of which is enclosed, refers to
an initial minimum payment of $10,000 in a holdback
situation. Effective September 15, 1994, the Trustees
raised the minimum amount to the greater of $175,000
or the Trust’s Option 3 offer.)
The Trust will not negotiate with you once you have
rejected or failed to accept your offer. The Trust will
not engage in any settlement negotiations with you or
your attorney after your claim proceeds to trial, ar-
bitration or ADR.
10a
In making your decision, it may be helpful for you to know
about results where juries or arbitrators have decided recent
Dalkon Shield cases after a full hearing of both sides’ evidence.
This information is shown on the enclosed chart of Jury
Trial/Regular Arbitration Hearing Results, and is explained
here.
As of November 1, 1994, decisions have been received in
twenty-five regular arbitration cases and jury trials against the
Trust involving twenty-nine claimants. The Trust’s Option 3
offers to these claimants totaled $1,060,804. The claimants
had submitted counteroffers demanding a total of $15,655,000
in damages. In thirteen of the cases, the claimants recovered
nothing. The juries or the arbitrator found in favor of the Trust
in twelve of those cases and the court directed a verdict for
the Trust in the thirteenth. One other case resulted in a
mistrial. Only eleven plaintiffs have prevailed against the Trust,
and they were awarded a total of $1,043,500 in damages.
Considerations for Electing ADR
ADR provides claimants with the opportunity to present their
cases to a neutral person and resolve their claims as quickly
as possible and with as few legal complications as possible.
The maximum amount recoverable in ADR is $20,000. Some
of the advantages of ADR include:
— The Trust will not assert a statute of limitations defense
in ADR.
— The Trust pays the administrative cost of ADR and
the expenses of the independent referee who hears
the ADR proceeding.
— The holdback does not apply in ADR.
— There is no formal discovery in ADR.
lla
— ADR offers a quick resolution; the hearing lasts no
more than 2-1/2 hours and most ADR hearings are held
within 6 months of certification.
— The Trust will not be represented by a lawyer in the
ADR hearing.
Information regarding the overall results of ADR hearings
is shown on the enclosed chart of ADR Statistics, and is ex-
plained here. As of November 1, 1994, approximately 1,400
claims had been resolved through ADR. The Trust offered
these claimants a total of $2,098,232 under Option 3. After
the ADR hearings on these claims, the referees awarded the
claimants a total of $8,030,574 in damages, which is almost
four times what the Trust had offered.
Important Enclosures
Obviously, the decision to accept or reject your final settle-
ment offer from the Trust is very important. To help you make
your decision, we have enclosed the Amended Adminstrative
Order No. 1, which is the Virignia Court’s Order governing
all litigation or arbitration proceedings. In addition, we have
enclosed the CRF, the rules governing regular arbitration, the
rules governing ADR, a booklet explaining arbitration, a
booklet explaining ADR, a chart giving arbitration and jury tral
statistics and a chart giving ADR statistics. Please read all of
these materials very carefully before making yor decision.
12a
Finally, if you do not have an attorney and wish to pursue
your claim through regular arbitration or tral, the Trust recom-
mends that you seek legal advice.
Sincerely,
Nina M. Gentry
Personal Contact
Enclosures:
Amended Administrative Order No. 1
Claims Resolution Facility
Rules Governing Regular Arbitration
Q & A — Common Questions About Arbitration
Arbitration Glossary
Jury Trial and Regular Arbitration Hearing Results Chart
Second Amended Rules Governing ADR
Q & A — Common Question About ADR
ADR Statistics Chart
13a
EXHIBIT G
1993 SESSION LAWS
Chapter 419
SILICONE BREAST IMPLANTS OR DALKON SHIELD IN-
TRAUTERINE DEVICES — PERSONAL. INJURY OR
DEATH — STATUTE OF LIMITATIONS — EXTENSION
AN ACT to authorize extension of the statute of limitations
for commencing a cause of action for personal injury or death
caused by silicone.
Approved and effective July 21, 1993.
The People of the State of New York, represented in Senate
and Assembly, do enact as follows:
§ 1, of Section 1. Every cause of action for personal injury
or death caused by the effects of silicone gel injected or im-
planted within the body, or caused by the effects of a silicone
breast implant or its component parts implanted within the
body, or caused by the effects of a dalkon shield intrauterine
device inserted or implanted within the body, which is barred
as of the effective date of this act or which was dismissed prior
to the effective date of this act solely because the applicable
period of limitations has or had expired, is hereby revived and
an action, thereon may be commenced provided such action
is commenced within one year from the effective date of this
act or in the case of an action caused by the effects of a dalkon
shield intrauterine device an action by a claimant of the Dalkon
Shield Claimants Trust may be commenced within one year
of certification to proceed with litigation provided, however,
that this section shall not revive any action for damages for
a wrongful act, neglect or default causing a decedent’s death
which has not been barred as of the date of the decedent’s
l4a
death and could have been brought pursuant to section 5-4.1
of the estates, powers and trusts law, and provided, further
that for any revived claim or action, including third party claims
and claims for contribution pursuant to article fourteen of the
civil practice law and rules for which a notice of claim is or
would have been required by law as a condition precedent to
the claim or action, a notice of claim shall not be required.
Any action pursuant to this section commenced prior to the
effective date of this act shall not be dismissed based upon
any period of limitations.
This section shall not be applicable to any action for medical
malpractice.
§\2 — § 2. This act shall take effect immediately.
15a
EXHIBIT H
SENATE BILL No. 607
AN ACT concerning civil procedure and civil actions; relating
to limitation of civil actions related to Dalkon Shield victims.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) Except as provided in subsection (c), not-
withstanding any other limitation contained in article 5 of
chapter 60 of the Kansas Statutes Annotated, any civil action,
except an action for relief on the ground of fraud, brought by,
or on behalf of, any Dalkon Shield victim against the Dalkon
Shield claimant’s trust, shall be brought in accordance with
procedures established by the A.H. Robins company, inc. plan
of reorganization, and shall be brought within 10 years of the
time in which such cause of action shall have accrued.
(b) Any civil action for relief on the ground of fraud brought
by, or on behalf of, any Dalkon Shield victim against the Dalkon
Shield claimant’s trust, shall not be deemed to have accrued
until the fraud of A.H. Robins company, inc. was discovered,
without regard to the date any physical injury occurred.
(c) The provisions of this act shall not affect any applicable
statute of repose as otherwise provided by law.
(d) The provisions of this section shall be part of and sup-
plemental to the provisions of article 5 of chapter 60 of the
Kansas Statutes Annotated.
Sec. 2. This act shall take effect and be in force from and
after its publication in the statute book.
16a
EXHIBIT I
CALIFORNIA LEGISLATURE — 1993-94 REGULAR SESSION
ASSEMBLY BILL NO. 2855
Introduced by Assembly Members Archie-Hudson, Bron-
shvag, Barbara Friedman, Terry Friedman, Lee, Martinez,
Moore, O’Connell, and Speier
(Coauthors: Senators Killea, McCorquodale, Torres, and
Watson)
February 17, 1994
An act to add Section 340.7 to the Code of Civil Procedure,
relating to limitation of actions.
LEGISLATIVE COUNSEL’S DIGEST
AB 2855, as introduced, Archie-Hudson. Limitation of
actions.
Existing law sets the statute of limitations applicable to ac-
tions of injury or death caused by the wrongful act or neglect
of another at one year.
This bill would enact an exception thereto with respect to
certain actions against the Dalkon Shield Claimants’ Trust, as
specified, extending the statute of limitation to 15 years, toll-
ing such actions as specified, and providing that these provi-
sions apply to actions which have lapsed.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
SECTION 1. Section 340.7 is added to the Code of Civil
Procedure, to read:
17a
340.7. Notwithstanding subdivision (3) of Section 340, any
civil action brought by, or on behalf of, any Dalkon Shield vic-
tim against the Dalkon Shield Claimants’ Trust, shall be
brought in accordance with the procedures established by A.H.
Robins Company, Inc. Plan of Reorganization, and shall be
brought within 15 years of the date on which the victim's in-
jury occured, except that the statute shall be tolled from
August 21, 1985, the date on which the A.H. Robins Com-
pany filed for Chapter 11 Reorganization in Richmond, Virginia.
This section applies regardless of when any such action or
claim shall have accrued or been filed and regardless of whether
it might have lapsed otherwise be barred by time under Califor-
nia law.
18a
CEIV
EXHIBIT J | ryan
sey . DAYTON
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
C-3-80-527
PHYLLIS FROUG, et al.;
Plaintiffs
v.
A.H. ROBINS COMPANY,
Defendant
ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
This matter is before the Court on defendant’s Motion for
Summary Judgment. Defendant claims that plaintiffs’ action
is barred by the applicable statute of limitations. Furthermore,
defendant asserts that the so-called ‘‘savings clause’’ of Ohio
Rev. Code §2305.15, which tolls the statute of limitations in
certain instances, is unconstitutional as violative of the Com-
merce Clause! of the United States Constitution. For the
reasons discussed below, defendant’s Motion is DENIED.
This case concerns an allegedly defective intrauterine device
known as a ‘‘Dalkon Shield’’ which was manufactured by
defendant, A.H. Robins Company. Plaintiff, Mrs. Froug, con-
tends that she developed pelvic inflammatory disease after
1A similar New Jersey statute has recently withstood Equal Protection
attack. See, G.D. Searle & Co. v. Cohn, __U.S.__ (1982), slip op. Defen-
dant no longer challenges §2305.15 under the Equal Protection Clause.
19a
the I.U.D. was inserted in July of 1971 and that the disease
progressed even after it was removed in December of 1972.
Mrs. Froug alleges that the defective design of the Dalkon
Shield was the proximate cause of the disease which even-
tually necessitated a total hysterectomy in 1975.
Plaintiffs filed this suit on December 5, 1980. Defendant has
raised the statute of limitations, Ohio Rev. Code §§2305.09
and 2305.10, as defenses. Section 2305.10 is a two-year
statute of limitations that applies to actions for personal in-
jury; this section applies to Mrs. Froug’s claim for relief. Plain-
tiff’s husband has sued for loss of consortium and for medical
and hospital expenses; his claim is governed by Ohio Rev.
Code §2305.09, which is a four-year statute of limitations.
Initially, the Court notes that the parties dispute the fact
whether Ohio law recognizes a ‘‘manifestation’’ or a
‘‘discovery’’ rule regarding the statute of limitations. Accord-
ing to the manifestation rule, a cause of action accrues, and
the statute begins to run, when the injuries manifest
themselves. The limitation periods would have expired under
the manifestation rule. Even if the Court concluded that the
injuries manifested themselves on August 18, 1975, when the
hysterectomy was performed, the four-year period of §2305.09
and the two-year period of §2305.10 would have run before
this suit was filed in 1980. However, according to the discovery
rule, the statute of limitations is tolled until the plaintiff gains
actual knowledge of the causal connection between her injuries
and the act(s) of defendant. Here, Mrs. Froug became aware
of her injuries and the alleged cause thereof, the Dalkon Shield,
on May 18, 1980, when her gynecologist mailed to her attorney
an abstract of office records mentioning the name ‘‘Dalkon
Shield.’’ Under the discovery rule, the running of the statutes
would have been tolled until May of 1980; this action would
have been filed well within either the two or four-year periods.
20a
The Court need not, however, resolve the issue of which rule
Ohio law favors because both statutes of limitations were tolled
by the ‘‘savings clause’’ of ORC §2305.15.
Section 2305.15 provides, in pertinent part, that:
‘‘When a cause of action accrues against a person
if he is out of state, or has absconded, or conceals
himself, the period of limitation for the commence-
ment of the action. . . . does not begin to run until
he comes into the state or while he is so absconded
or concealed.”’
There is no doubt that this statute applies to defendant, a cor-
poration that is neither incorporated under the laws of Ohio
nor qualified to do business in the state. A foreign corpora-
tion on which personal service cannot be had in Ohio is ‘‘out
of state’’ for purposes of the tolling provisions of the savings
statute; the limtiations period does not begin to run until the
corporation is subject to personal service notwithstanding the
fact that in personam jurisdiction might be available by
substituted service. Ohto Brass Co. v. Allied Products Corp.,
339 F.Supp. 417, 424 (N.D. Ohio 1972).
Defendant challenges the constitutionality of §2305.15 under
the Commerce clause. However, the Ohio statute does not
offend the Constitution according to either of the two tests
set forth by the Supreme Court. Congress has been granted
the power to regulate commerce among the states. However,
many subjects of potential Congressional control go unregu-
lated because of their local peculiarity, their number and their
diversity. South Carolina State Highway Dept. v. Barnwell
Bros., Inc., 303 U.S. 177, 185. These subjects are therefore
open to state and local control, so long as the regulations estab-
lished do not go beyond the limits of the Commerce Clause.
Raymond Motor Transportation, Inc., v. Rice, 434 U.S.
2la
429, 440. Concerning the boundaries of the Commerce Clause,
the Supreme Court has said that ‘‘[w]hat is ultimate is the
principle that one state in its dealings with another may not
place itself in a position of economic isolation.’’ Baldwin v.
G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935). Where simple
economic protectionism is the goal of state legislation, a vir-
tually per se of invalidity applies. Philadelphia v. New Jersey,
437 U.S. 617, 624 (1978). However, a much more flexible
approach is used where there is no patent discrimination
against interstate commerce:
‘‘Where the statue regulates evenhandedly to ef-
fectuate a legitimate local public interest, and its ef-
fects on interstate commerce are only incidental, it
will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the
putative local benefits. . . . If a legitimate local pur-
pose is found, then the question becomes one of
degree.’ Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970).
Arguing that the per se rule of invalidity applies, defendant
cites to Stoux Remedy Company v. Cope, 235 U.S. 197 (1914).
Defendant's reliance on the Sioux Remedy case is misplaced.
In that case, an lowa corporation was not permitted to collect
the purchase price for goods sold and delivered to a South
Dakota buyer. South Dakota had a statute prohibiting an out-
of-state corporation from transacting business within the state
unless the corporation registered with the Secretary of State
and paid a filing fee. Furthermore, the corporation could not
bring suit in a South Dakota court unless it appointed a resi-
dent agent for service of process, which would mean subject-
ing itself to the jurisdiction of all South Dakota state courts.
The Supreme Court ruled that these statutes prohibiting a
foreign corporation from transacting business in state or from
22a
suing in state court violated the Commerce Clause because
they were particularly burdensome to the enforcement of con-
tractual nghts. 235 U.S. at 205. Ohio ‘‘Savings Statute’’ does
not affect a foreign corporation as drastically as the South
Dakota statute. Section 2305.15 does not prevent an
unregistered foreign corporation from transacting business
within the state. Nor does it prevent that corporation from
suing in a state court. Rather, §2305.15 operates to insure
that a foreign defendant has an authorized agent in the state
to accept service of process so that jurisdiction over the defen-
dant may be had in as quick and expeditious a manner as possi-
ble. Thus it is apparent that the purpose of the savings statute
is not economic protectionism. The per se rule of invalidity does
not apply.
Defendant argues in the alternative that {2305.15 never-
theless is invalid according to the standards enunciated in the
Pike case. Pike holds that where a statute regulates
evenhandedly to effectuate a legitimate local public interest,
it will be upheld unless its effect on interstate commerce is
clearly excessive to the local benefit. Pike v. Bruce Church,
Inc., supra.
The Court notes at the outset that the savings statute does
operate evenhandedly. There is no patent discrimination
against foreign defendants. Section 2305.15 applies whether
the defendant is foreign or is an Ohio resident who conceals
himself or absconds from the state. Ohio Rev. Code §2305.15;
Seeley v. Expert, Inc., 26 Ohio St.2d 61, 64-65 (1971),
Meekison v. Groschner, 153 Ohio St. 301, 308 (1950) (con-
cerning G.C. 11228, the predecessor statute to §2305.15).
Nor does the savings statute differentiate between corporate
and individual defendants. The word ‘‘person’’ in that sec-
tion applies equally to corporations and natural persons. Moss
v. Standard Drug Co., 94 Ohio App. 269, 274 (1952).
23a
Besides operating evenhandedly a statute must efffectuate
a legitimate local interest in order to withstand consitituional
scrutiny under the Commerce Clause. Curiously, the cases
are devoid of any indication of the legislative intent behind
§2305.15. This Court, therefore, makes a rational inference
as to the purpose of the savings statute. That purpose falls
within the broad ambit of the State’s police powers. ‘‘The
police power of a state extends beyond health, morals and safe-
ty, and comprehends the duty, within constitutional limitations,
to protect the well-being and tranquility of a community.’’
Kovacs v. Cooper, 336 U.S. 77, 83 (1949). The legislature,
by enacting §2305.15, has intended to protect Ohio citizens
from any harm that may befall them from persons who are
either absent from the state or from residents who subsequent-
ly depart from the state. The rights of Ohio citizens? are
preserved by tolling the statute of limitations until such time
as the defendant enters or re-enters the state. Even though
an out-of-state defendant may be subject to im personam
jurisdiction by virtue of substituted service of process under
Ohio Rule of Civil Procedure 4.3(B)(1), any act by an out-of-
state defendant that prevents personal service nevertheless
tolls the statute of limitations. Mead Corporation v. Allendale
Mutual Insurance Co., 465 F Supp. 355, 361 (1979 N.D. Ohio);
Ohio Brass Co. v. Allied Products Corp., 339 F.Supp. 417,
424 (1972 N.D. Ohio). This is so despite the availability of
long arm jurisdiction (under Ohio Rev. Code §2307.38.2)
because a foreign defendant may be difficult to locate and
serve. G.D. Searle & Co. v. Cohn, __U.S.__ (1982), slip op.
at 6. Even though, in this case the defendant is a large cor-
poration and easily located, does not render invalid the underly-
ing assumption that many unrepresented foreign corporations
are difficult to locate. Jd.
2Note that non-resident plaintiffs are similarly protected regarding causes
of action that accrue in Ohio. See, Seeley v. Expert, Inc., 26 Ohio St.2d
61 (1971).
24a
Having established that a legitimate local purpose exists,
the Court must now determine whether the statute’s effect
on interstate commerce is clearly excessive in relation to the
putative local benefits. Defendant contends that it is denied
the benefit of the statute of limitations, unless it subjects itself
to personal service in Ohio. Undoubtedly, this is a slight burden
on interstate trade. However, Robins is not denied the
possibility of prevailing in this action. Plaintiffs must still plead
and prove all aspects of their case. Besides the statute of limita-
tions is but an act of legislative grace; its shelter is not regarded
as a ‘‘fundamental nght.’’ Chase Secunties Corp. v. Donaldson,
325 U.S. 304, 314 (1945).
Unlike the situation in Sioux Remedy, defendant Robins is
not totally prevented from transacting business in the state.
Nor is Robins precluded from suing in state courts to recover
on otherwise valid contracts. Robins has and continues to do
business in Ohio and reaps profits thereby.
Defendant argues that §2305.15 is an undue burden on in-
terstate commerce because if defendant were to appoint a resi-
dent agent for service of process, its amenability to suit in
Ohio courts would be greatly expanded. Robins argues that
it would be unfair to subject itself to a potential multiplicity
of actions because in many cases, it lacks the necessary
‘‘minimum contacts’’ with Ohio to establish personal jurisdic-
tion. Defendant correctly points out that the decisive factor
to be considered is ‘‘the relationship among the defendant
[Robins], the forum [Ohio] and the litigation.’’ Shaffer v.
Heitner, 433 U.S. 186, 204 (1980). Curiously, Robins sug-
gests that a less restrictive alternative to §2305.15 exists,
namely, that jurisdiction may be invoked under Ohio’s longarm
statute, Ohio Rev. Code §2307.38.2, and process served by
certified mail. Defendant thus admits, at least by implication,
that the necessary minimum contacts do exist to tie it to the
25a
state of Ohio. Ohio longarm jurisdiction may be exercised
when, but not exclusively, the defendant: (1) transacts any
business in Ohio; (2) contracts to supply services or goods
in Ohio; (3) causes tortious injury in Ohio; or (4) breaches an
express or implied warranty. Ohio Rev. Code
§2307.38.2(A)(1-5).
Because Robins transacts business within Ohio, the
necessary minimum contacts are present to establish long-arm
jurisdiction. Substituted service of process by certified mail
would ordinarily be available. However, because defendant is
‘‘out-of-state’’, the savings statute comes into play. The
statutes of limitations are tolled until such time as defendant
enters the state. There is no doubt that Robins is amenable
to certified mail services. Defendant is a large, nationally-
known corporation, whose whereabouts are easily identified.
But the purpose of the savings statute is to lessen the plain-
tiff’s burden in gaining personal jurisdiction over the defen-
dant. Not all defendants are large corporations. Many defen-
dants are hard to locate and/or travel from state to state, mak-
ing certified mail service a difficult enterprise. Section 2305.15
is phrased in mandatory language. There are no exceptions
for defendants whose actual location is known to the plaintiff.
The savings clause simply preserves a plaintiff's cause of ac-
tion by tolling the statute of limitations until such time as the
plaintiff may personally serve the defendant.
For the reasons discussed herein, defendant’s Motion for
Summary Judgment is hereby DENIED.
/s/ Carl B. Rubin
Carl B. Rubin,
Chief Judge
United States District Court
26a
EXHIBIT K "guy fu
US. ee RT
WEST DIV DAYTON
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. C-2-80-458
IN RE SHARY NUNLEY
AND OTHER PLAINTIFFS, et al
vs.
A. H. ROBINS COMPANY, INC.
MEMORANDUM AND ORDER
Consolidation and Bifurcation
1. Background of the Litigation
The Dalkon Shield is an intrauterine contraceptive device.
It was invented and improved over a number of years by Hugh
J. Davis, M.D. and Irwin S. Lerner. In November 1968, Mr.
Lerner applied for a patent on the design of the Dalkon Shield.
Two months later, he and Dr. Davis formed the Dalkon Cor-
poration. The device was clinically tested by Dr. Davis at Johns
Hopkins University, School of Medicine, from September 1968
to November 1969. At that time, it was commercially introduc-
ed to the medical profession by the Dalkon Corporation. On
June 12, 1970, the A.H. Robins Co., Inc. (Robins), a manufac-
turer and distributor of pharmaceutical products, purchased
all nights to the Dalkon Shield from Mr. Lerner and the Dalkon
Corporation.
Robins initiated its national promotion and marketing of the
Dalkon Shield in January 1971. Between the date Robins ac-
quired the device from the Dalkon Corporation and June
27a
28, 1974, when Robins voluntarily suspended distribution of
the Dalkon Shield, approximately 2.2 million Dalkon Shields
were prescribed to and inserted in women in the United States.
Dalkon Shield is a medically prescribed pharmaceutical pro-
duct. It could be inserted and fitted by a physician. Each Dalkon
Shield package contained labeling instructions and materials
describing how the device was to be inserted, contraindica-
tion to its use and potential side effects. The fitting physician
was to explain to the prospective wearer about the advantages
and disadvantages of using the Dalkon Shield as a means of
contraceptive method. If the decision was made to have the
Dalkon Shield inserted, the physician was to perform certain
preliminary fitting procedures outlined in the labeling
instructions.
During the years in which the Dalkon Shield was sold, a
number of women who had been fitted with the intrauterine
device allegedly suffered adverse reactions and serious bodi-
ly injuries. Many of these women brought suits in federal courts
against Robins. Their complaints alleged a number of legal
theories for their recoveries, including negligence, gross
negligence, strict liability in tort, failure to give adequate war-
nings, breach of warranties, misrepresentations, conspiracy
and fraud. Additional defendants in some of these actions in-
cluded plaintiffs’ personal physicians, hospitals and clinic, and
two physicians who served as medical consultants to Robins
and who at one time held proprietary interests in the Dalkon
Shield.! Because many of these actions involved common ques-
tions of facts, the Judicial Panel on Multidistrict Litigation pur-
suant to 28 U.S.C. § 1407 transferred actions in this litigation
to the District of Kansas and assigned to The Honorable Frank
G. Theis for coordinated and consolidated pretrial discovery
‘Counsel has now advised the Court that Robins is the only defendant
in these cases at bar.
28a
proceedings. Jn re A. H. Robins Co., Inc. ‘‘Dalkon Shield’
IUD Products Liability Litigation, Docket MDL 211, 505
F.Supp. 221 J.P.M.L., 1981); 453 F.Supp. 108 J.P.M.L.,
1978); 419 F.Supp. 710 J.P.M.L., 1976); 406 F.Supp. 540
(J.P.M.L., 1975).
II. Dalkon Shield cases in the Southern District of Ohio
On April 1, 1983, we received an assignment of the Dalkon
Shield I.U.D. cases for the Southern District of Ohio. Of these
136 cases, 126 were filed in Columbus, 3 in Cincinnati, and
7 in Dayton. The total number of cases was increased to 153
when 17 more were added to the list at a later time. As of
this time, November 30, 1983, there are 103 cases calendared
— some 50 or so cases have been disposed of by dismissal
or settlement.
Between May 20, 1983 and July 26, 1983, this Court held
several conferences in Dayton, Ohio with the attorneys in-
volved in these cases. To expedite the disposition of the Dalkon
Shield cases, the Court issued a General Order outlining the
pretrial and trial procedures. In this Order, and by agreement
of the parties, the Court specifically mandated that the pretrial
orders issued by Judge Frank G. Theis in the MDL 211, in-
cluding the various rulings in the discovery proceedings, would
apply to these cases presently pending in the Southern District
of Ohio.
The Court has had occasion to call the attention of the par-
ties to the time problems involved in trial of these cases.
Counsel has advised that each case would require a minimum
of six weeks or at least 30 trial days. The Court has noted
that a 30-day trial could and would cause difficulty for a judge
in the district with a full calendar or for a visiting judge. Never-
theless, the Court, by consent of counsel, scheduled cases
in the following manner.
29a
The court originally designated 15 cases (Group I) for trial
on November 7, 1983. These cases were assigned strictly by
reference to the oldest chronological dates of filing of all Dalkon
Shield cases before the Court. The Court was advised that
plaintiffs in these first 15 cases are represented by five dif-
ferent counsel including Mr. James Szaller and Mr. Phillip
Zauderer, who represent seven plaintiffs in the first 15 cases.
Mr. Zauderer also represents the plaintiffs in all but five or
six of the remaining Dalkon Shield cases before this Court.
On July 26, 1983, we ordered counsel to prepare and cir-
culate preliminary pretrial orders setting forth the discovery
schedules and legal claims of each plaintiff in these first 15
cases. Counsel duly complied; and the Court approved these
preliminary pretrial orders on August 22, 1983. The Court
also ordered 30 back-up cases (Group II) to be ready for trial
on November 7, 1983, in addition to the first 15 cases. Final
Pre-trial Conferences were set on November 1, 1983 on any
of these cases not settled or otherwise disposed by that time.
On August 26, 1983 and various occasions thereafter, Robins
moved for summary judgment in a number of cases from Group
I and II. Robins argued in these motions that plaintiffs’ ac-
tions for personal injuries were barred by the applicable statute
of limitations. Robins further asserted, in light of the recent
New Jersey Supreme Court case, Coons v. American Honda
Motor Co., Inc., 463 A.2d 921 (N.J. 1983), that the applica-
tion of the Ohio ‘‘savings clause,’’ Ohio Rev. Code §2305.15,
to it — a foreign corporation — violated the Commerce Clause
of the U.S. Constitution.
We note Robins had previously raised these two issues in
Froug v. A. H. Robins Co., Inc., No. 82-527 (S.D. Ohio 1982),
a companion case which was set for trial before the Court on
November 7, 1983. In overruling Robins’ motion for summary
judgment, Judge Rubin in Froug found under the Ohio
30a
law, as the Ohio State Supreme Court has consistently con-
strued it, the ‘‘savings clause’’ tolling of the statute of limita-
tions in personal injury cases is tied to a defendant’s amenability
to personal serivce. See Seely v. Expert, Inc., 26 Ohio St.2d
61, 65-66 (1971). If a defendant is not amenable to personal
service within the State of Ohio, that defendant is deemed
to be ‘‘out of state’ within the meaning of Section 2305.15
and the applicable statute of limitations is tolled from running
in his favor. This rule applies even when the defendant is a
non-resident of Ohio, and despite the fact that the substituted
service is available under the Ohio long-arm statute. Judge
Rubin concluded this tolling statute applies to Robins because
Robins has never been incorporated under the laws of Ohio
or registered to do business in that state.
Judge Rubin also rejected Robins’ alternative argument to
invalidate the ‘‘savings clause’’ as violative of the Commerce
Clause of the U.S. Constitution. Judge Rubin found the ‘‘savings
clause’’ did not impermissibly offend the Commerce Clause
under the tests stated in Philadelphia v. New Jersey, 437 U.S.
617 (1978); Pike v. Bruce Church, Inc., 297 U.S. 137 (1970);
and Stoux Remedy Company v. Cope, 235 U.S. 197 (1914).
On October 6, 1983 we heard arguments from the respec-
tive parties concerning the issues raised by Robins in its motin
for summary judgments in a number of cases from Group I
and II. Robins focused its contention on the constitutionality
of the savings clause, urging this Court to overrule Judge
Rubin’s decision in Froug, supra, in light of a recent New
Jersey Supreme Court case, Coons v. American Honda Motor
Co., Inc., 463 A.2d 921 (1983). Robins argued this Court
should follow the New Jersey court’s decision, since it con-
strued a New Jersey tolling statute similar to the Ohio sav-
ings clause.
Initially, it is observed that the Coons decision came from
a divided court. Three justices of a seven-member panel dis-
3la
sented, questioning whether the majority has properly con-
strued the tolling statute as violative of the Commerce Clause.
The majority in Coons held the New Jersey tolling statute im-
permissibly placed an unconstitutional burden on interstate
commerce when it required a foreign corporation to formally
register to do business in New Jersey before it could appoint
a resident agent to receive service of process and to get the
benefits of the tolling statute. 463 A.2d 921, 926.
We find Robins’ reliance on the Coons decision is misplaced,
to the extent of that court’s Commerce Clause holding. The
Ohio tolling statute, in substance, is not the same as the New
Jersey tolling statute. The Ohio tolling statute does not con-
tain a provision which requires a foreign corporation to pro-
cure a certification of authority by registering to do business
before it can appoint a resident agent for service of process
in order to enjoy the benefits of the tolling statute. All the
Statute says is that if a defendant is not amenable to personal
service within the State of Ohio, that defendant is deemed
to be ‘‘out of state’’ within the meaning of the tolling statute
and the applicable statute of limitations is tolled from running
in his favor. Seely v. Expert Inc., 26 Ohio St.2d at 65-66;
Vostack v. Axt, 510 F.Supp. 217, 223 (S.D. Ohio 1981); Mead
Corporation v. Allendale Mutual Insurance Co., 456 F.Supp.
355, 361 (N.D. Ohio 1979); Ohio Brass Co. v. Allied Products
Corp ., 339 F.Supp. 417, 424 (N.D. Ohio 1972). Whatever
alleged hardship is created by this savings clause on foreign
corporation, as plaintiff's counsel pointed out in the oral argu-
ment, can be eliminated by designation of a resident agent in
Ohio for service of process. Cf. G.D. Searle & Co. v. Cohn,
455 U.S. 404 (1982). Unlike New Jewsey, there is nothing
in Ohio law to prevent Robins from doing that.
After having heard oral agruments from the parties on Oc-
tober 6, 1983, the Court announced from the bench its deci-
32a
sion to overrule Robins’ motion for summary judgment in these
cases at bar. We adhere to that ruling and holding in Froug,
supra. Our decision on the constitutionality of the tolling statute
is, of course, subject to reconsideration if reasserted by any
parties at the conclusion of any trial in which the statute may
be applicable. Dkt. 113m.
At the October hearing, the parties were directed to have
ready on or before November 1, 1983, at the Final Pre-trial
Conference the following:
1) a list of their witnesses,
2) asummary of the testimony of such witnesses,
3) alist of all exhibits marked by and filed with the
Clerk’s Office,
4) written exceptions or objections to the
testimony or exhibits with specific reference to
the Federal Rules of Evidence to support each
objection, and
9) any substantive motion with briefs for the Court
to rule upon by November 1, 1983.
III. Consolidation and Bifurcation, FRCP 42(a) & (b)
On November 1, 1983, the Court held Pre-trial Conferences
on 9 cases designated for trial on November 7, 1983.?
*Phyllis Froug, No. C-3-80-527; Vicki Thompson, No. C-2-81-1489;
Edith Binford, No. C-2-82-422; Anna Cassidy, No. C-2-82-379; Kathleen
Flowers, No. C-3-83-080; Sharon Hemmerly, No. C-2-82-386; Rosalie
Nunley, No. C-2-82-380; Martha Smith, No. C-2-82-389; Pauline Swin-
ford, No. C-2-82-476.
Counsel estimated that it would take at least 30 trial days to complete
trying a case if these cases were to be tried individually. This would take
270 trial days — and there would be over 100 cases left. It requires no
clairvoyant power to conclude that any attempts to try these 100 or so
cases im seriatim would bankrupt the already congested district court's
calendar and result in a tedium of repetition lasting well into the next
century.
33a
The parties had prepared Proposed Pre-trial Orders to pre-
sent to the court for approval and had filed numerous motions
in limine for the Court to rule upon prior to trial scheduled
for November 7, 1983. The Court noted that while counsel
had been industrious in seeking to have a Pre-trial Order ac-
ceptable to the Court, it was, however, not satisfied. The
Court found the summary testimony of the witnesses was not
adequate. The objections to witnesses and exhibits would re-
quire additional rulings by the court. While the Court had in-
dicated that it would, if time and other assignments permit-
ted, try the cases in the order filed, the Court felt it would
be inappropriate for it to commence the trial of the 9 cases
on November 7, 1983.
At the same time, the Court announced its intention to in-
voke Rule 42(a) of the Federal Rules of Civil Procedure and
to consolidate all Dalkon Shield cases presently pending before
this Court. Additionally, the Court planned to bifurcate, under
the authority granted by Rule 42(b) of the Federal Rules of
Civil Procedure, these consolidated actions and to hold a
‘“generic liability’’ trial. Counsel were advised to have the re-
maining cases ready for preliminary pretrial or pretrial pro-
ceedings in accordance with the Court’s General Order.
The plaintiffs in these cases assert numerous theories of
recovery, the Court observes from the complaints, the
Preliminary Pre-trial Orders and the Proposed Final Pre-trial
Orders, the theories of recovery do not significantly vary from
case to case. The theories include negligence, gross
negligence, strict liability in tort, breach of implied and ex-
press warranties, failure to give adequate warnings, misrep-
resentation, conspiracy and fraud. The Court is of the opi-
nion that these theories may be segregated into two broad
categories; product liability and misrepresentation.
34a
The theories of negligence, gross negligence, strict liabili-
ty in tort, and implied warranty all fall within the broad category
of products liability. Misrepresentation, conspiracy, fraud and
breach of express warranty all come within the category of
misrepresentation. Additionally, the adequacy of the defen-
dant Robins’ warnings raise questions related to both
categories.
Because the theories are essentially the same, the Court
envisions that the resolution of these cases can be greatly simp-
lified and expedited in two ways. First, the extent to which
the theories are repetitive, only some theories need to be
tried. Second, these cases can be consolidated and bifurcated
for trial on issues relating to liabiity under each category. See,
Rule 42 of the Federal Rules of Civil Procedure.
First, the category of products liability contains repetitive
theories. In Ohio, there is virtually no distinction between strict
liability under § 402A of the Restatement (Second) of Torts
and breach of implied warranty. Temple v. Wean United, Inc.,
50 Ohio St.2d 317, 364 N.E.2d 267 (1977). The key issue
under either of these theories is whether the product is in a
defective condition. Three recent Ohio Supreme Court deci-
sions have developed how this issue is resolved. Leichtamer
v. American Motors Corp., 67 Ohio St.2d 456, 424 N.E.2d
968 (1981); Knitz v. Minster Machine Co., 69 Ohio St. 2d 460,
432 N.E.2d (1982); Cremeans v. International Harvester Co.,
6 Ohio St.3d 232 (1983). Similarly the question of whether
defendant was negligent or grossly negligent is dependent on
a defect in the product. Also, whether defendant gave ade-
quate warnings, in part, is related to existence of a defect in
the product. As the court said in Knitz v. Minster Machine
Co., supra:
Appellant also offers the proposition that the failure
to give adequate warnings gives rise to a cause of
35a
action in strict liability. As we pointed out in Tem-
ple, 50 Ohio St.2d at page 325, 364 N.E.2d 267, ‘[iJt
is . . . apparent that the rule imposing obligation on
the manufacturer or seller to give suitable warning
of a dangerous propensity of a product is a rule fix-
ing a standard of care, and any tort result from the
failure to meet this duty is, in essence, a negligent
ee
Moreover, we held in Leichtamer, 67 Ohio St.2d at
page 469, 424 N.E.2d 568, that ‘[t]he absence of
a warning does not, without more, provide a basis
for [strict] liability; rather, evidence of warning is
in the nature of an affirmative defense to a claim that
a product is unreasonably dangerous.’
432 N.E.2d at 818 fn. 5. See also, Restatement (Second) of
Torts, § 402A, Comment J, k. See also, Seley v. G.D. Searle
& Co. 67 Ohio St.2d 192, 423 N.E.2d 831 (1981).
From the foregoing, the Court concludes that all theories
within this first category have the same central issue: name-
ly, was there a defect in the Dalkon Shield? Even though this
issue is resolved a bit differently under some theories, i.e.,
there are differing standards of care, each will depend on the
same evidence.?
Similarly within the second broad catregory, there are ques-
tions common to each theory. Misrepresentation, conspiracy,
fraud and breach of express warranty‘ all require determina-
tions of what representations the defendant made, and whether
3See, In re Northern District of California, Dalkon Shield IUD Products
Liability Litigation, 693 F .2d 847, 852 (9th Cir. 1982), cert. denied, 103
S.Ct. 817 (1983).
‘Ohio recognizes a common law breach of express warranty. Rogers v.
Toni Home Permanent Co., 167 Ohio St.2d 244, 147 N.E.2d 612.
36a
any of those representations were false and misleading. Also,
the issue of adequacy of warnings is dependent on what
representations were made by the defendant. See, Seley v.
G.D. Searle & Co., supra; Restatement (Second) of Torts §
402A, Comment K.
In addition to the theories of liability, two other issues, com-
mon to all these cases, can be resolved in this ‘‘generic liabili-
ty’’ trial. First, all plaintiffs in these cases allege that a Dalkon
Shield caused each plaintiff to suffer pelvic inflammatory disease
(PID). In each of these cases, a jury must decide whether a
Dalkon Shield can cause PID. It is apparent that the evidence
offered on this issue will be the same for each of these cases.
Therefore, this question can be resolved in the ‘‘generic liabili-
ty’’ trial. Later in thé individual trials, whether the Dalkon
Shield was indeed the proximate cause of each alleged injury
may be determined.
Second, whether punitive damages are to be awarded, and
if so, what is the proper amount can be decided in the ‘‘generic
liability’’ trial. Punitive damages are dependent upon the defen-
dant’s behavior. The focus of the ‘‘generic liability’’ trial will
be Robins’ behavior. The jury in that trial will have all the
evidence necessary to decide whether or not to award punitive
damages and if so how much, before it. By considering punitive
damages only in the ‘‘generic liability’’ trial, the Court can
limit, in these cases, the potential excessive awards of punitive
damages, which Robins addressed in its trial brief and the court
in Roginsky v. Richardson-Merrell, Inc., 378 F .2d 832 (2d Cir.
1967) discussed at length.
As stated above, the Court is convinced that resolution of
these cases can be simplified and expedited by consolidating
and bifurcating these cases for trial on the following issues:
1) Are Dalkon Shields in a defective condition; 2) Did Robins
give warnings that were adequate; 3) What representations
37a
did Robins make; 4) Were any of these representations false
or misleading; 5) Do Dalkon Shield cause PID; and 6) Are the
plaintiffs entitled to punitive damages and, if so, to what
amount.
In the Court’s opinion, these issues focus solely on Robins’
behavior. What any plaintiff did, or the injuries suffered by
the various plaintiffs would not be relevant to these issues.
Later, if necessary, each case would have its own trial where
questions such as individual proximate cause, reliance,
damages, and affirmative defenses could be decided.
That this is the only reasonable way to proceed in these
cases is reinforced by the witness lists which the parties at-
tached to their Proposed Final Pretrial Statements. Robins,
for instance, lists the same witnesses for each case. Also, the
different groups of plaintiffs intend to use many of the same
witnesses. Thus, the Court anticipates that the evidence will
not significantly vary from case to case.
Additionally, this method will diminish some of the concerns
raised by Robins in its motion for limine. For instance, should
the jury in the ‘‘generic liability’’ trial decide that certain
representations made by Robins were false, this fact would
not be admitted into the individual trials until there was
evidence that the particular plaintiff relied on the
representation.
For this to work, the Court will rquire the cooperation and
assistance of all counsel. Specifically, the Court will need
counsel to draft jury interrogatories relating to the issues
which, as outlined above, will be decided in the ‘‘generic liabili-
ty’’ trial. These will serve as the basis of stipulation to be read
to the juries in the individual trials.
IV. Conclusion
The Court stated at the last conferences that it would issue
a written summation of its intentions so that counsel could file
38a
written responses to it. The Court further stated that, if
necessary, it would schedule a hearing to meet with counsel
of record with the view to discuss matters concerning this
Memorandum and Order to implement the Court’s intentions
to consolidate and bifurcate this litigation. The Court once again
reminds all counsel that just as they will devote their energy
and ability to trying to dissuade the Court from proceeding
in this manner, they invest the same effort and skill to insur-
ing that this method is as successful as possible.
Accordingly, IT IS ORDERED that all Dalkon Shield I.U.D.
caes (sic) filed in the Southern District of Ohio are consolidated
under Rule 42(a) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that this consolidated action
is bifurcated under Rule 42(b) of the Federal Rules of Civil
Procedure and the Court will hold a ‘‘generic liability’ trial
on the following issues:
1) Are the Dalkon Shields in a defective condition;
2) Did Robins give adequate warnings;
3) What representations did Robins make;
4) Were any of these representations false or
misleading;
5) Does the Dalkon Shield cause pelvic inflam-
matory disease; and
6) Are the plaintiffs entitled to punitive damages
and, if so, to what amount.
Counsel are requested to have available for review propos-
ed jury instructions and interrogatories to implement the deter-
mination of the issues as outlined above for the ‘‘generic liabili-
ty’’ trial proceedings.
In addition, the Court will review proposed Preliminary Pre-
trial Orders and Pre-trial Orders with a view to adopting them
to the Court’s General Order and the Order contained above.
39a
IT IS FURTHER ORDERED that a hearing in said con-
solidated cases be, and hereby is set before the undersigned
Judge for Wednesday, December 21, 1983, at 9:30 a.m. at
Dayton, Ohio.
This Order shall apply to all Dalkon Shield I.U.D. cases pen-
ding in the Southern District of Ohio.
Dated this lst day of December, 1983.
/s/ Wesley E. Brown
United States District Senior Judge,
Assigned
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.