# Amicus Curiae Brief — Reynoldsville Casket Co. v. Hyde > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0545%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1995 - **Citation:** 514 U.S. 749 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0545%3A13. Public record. Not legal advice.