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HOPPE v. G.D. SEARLE & CO.
November 19, 1991
RUTH HOPPE, PLAINTIFF,
G.D. SEARLE & CO., DEFENDANT.
The opinion of the court was delivered by: Keenan, District Judge.
I. PLAINTIFF'S REQUEST FOR A LIMITING INSTRUCTION ON FDA
APPROVAL OF THE CU-7
The Court will give a limiting instruction on the effect of
FDA approval, and will take judicial notice of the Food Drug
and Cosmetic Act in the charge to the jury.
II. PLAINTIFF'S REQUEST FOR AN ORDER PERMITTING THE USE OF
PRIOR DIRECT TESTIMONY OF DR. FIVES-TAYLOR AND DR.
Plaintiff seeks an order permitting the introduction at
trial of the former testimony of two doctors, Dr. Paula
Fives-Taylor and Dr. Channing Robertson, given during the
trial of Kociemba v. G.D. Searle & Co. (Civ. No. 3-85-1599),
another products liability suit involving the Cu-7. Federal
Rule of Evidence 804, which provides exceptions to the rule
against hearsay, governs this request. Rule 804(b)(1) permits
the introduction of former testimony where the declarant is
unavailable and the testimony was given "as a witness at
another hearing of the same or a different proceeding . . . if
the party against whom the testimony is now offered . . . had
an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination." Rule 804(a) defines
"unavailability" as including situations where the declarant is
"absent from the hearing and the proponent of a statement has
been unable to
procure the declarant's attendance . . . by process or other
Plaintiff asserts that efforts were made to arrange for the
trial testimony of Drs. Fives-Taylor and Robertson, but that
both doctors declined to testify. Plaintiff does not explain
why the doctors declined. Further, plaintiff failed to forward
to the Court explanatory affidavits from the doctors that
plaintiff cited in her motion papers and pledged to furnish.
More troublesome, plaintiff's representation that the doctors
are unavailable is hardly current. In fact, there is no
indication that plaintiff ever renewed her request that they
testify in the year since they declined, nor is there anything
to suggest that they remain unavailable.
Even were the doctors still unavailable, their former
testimony must still satisfy the requirements of Rule
804(b)(1). Specifically, the party against whom the testimony
is offered must have had an opportunity and similar motive to
cross-examine the witnesses. This does not appear to be the
case, however. The facts of the case at bar differ from those
in Kociemba in two significant respects.
First, Mrs. Hoppe and the plaintiff in Kociemba were exposed
to the Cu-7 for different periods of time: Mrs. Hoppe for
eleven months, Mrs. Kociemba for eighteen. This distinction
bears on the issue of product deterioration and its potential
effect on the plaintiffs. In Kociemba, Dr. Fives-Taylor's
testimony was limited to those Cu-7 IUDs that had been used for
the period of time Mrs. Kociemba had used her Cu-7. As
defendant observes, the rationale for this limitation of
testimony was that "product 'deterioration' which might have
occurred during a period after the plaintiff stopped using the
product was not relevant." Opp.Mem. at 10. This rationale is
persuasive, and leads to the conclusion that neither Dr.
Fives-Taylor's Kociemba testimony about 18-month old Cu-7s, nor
Dr. Robertson's microscopic photographs of Cu-7s older than
eleven months, is relevant in this case.
A second distinction between this case and Kociemba is that
this case suggests rather unusual facts that may well be
advanced to explain Mrs. Hoppe's infertility and pelvic
inflammatory disease. There is no indication that in Kociemba
Searle would have had reason to cross-examine Dr. Fives-Taylor
or Dr. Robertson about the bearing of these unusual facts on
the issue of causation.
Other issues similarly suggest that Searle may not have had
a similar motive and opportunity to cross-examine the
witnesses in Kociemba. First, Searle asserts that it has
obtained impeachment evidence since the doctors testified in
Kociemba in 1988. See Opp.Mem. at 8-9. Among other things, Dr.
Fives-Taylor was found to have misrepresented material during
her testimony, resulting in the Kociemba Court's subsequently
striking all of her testimony on the significance of copper's
presence in the Cu-7. See Kociemba v. G.D. Searle & Co.,
707 F. Supp. 1517, 1529 (D.Minn. 1989); Trial Transcript (Civ.
3-85-1599) Aug. 22, 1988; Opp.Mem. at 8-9. Second, Searle
asserts that current scientific and medical literature provides
material that Searle would have used to challenge these
experts' credibility, but could not because the information was
not yet available.
That Searle therefore did not have a similar motive to
cross-examine these experts in Kociemba is not in itself
dispositive on the issue of admitting their former testimony.
The fact that they have not had an opportunity to depose them
in the context of this case, however, militates in favor of
excluding the testimony. In Rutledge v. Electric Hose & Rubber
Co., 327 F. Supp. 1267 (C.D.Cal. 1971), aff'd, 511 F.2d 668 (9th
Cir. 1975), the plaintiff sought to admit the former testimony
of witnesses that he had not deposed, despite their apparent
availability for out-of-state depositions. The Court denied
plaintiff's request on the ground that the witness was not
unavailable. See id. at 1271. In a recent Cu-7 case, the court
took a similar approach, refusing to allow plaintiff to read
the prior testimony of Dr. Fives-Taylor or of Dr. Robertson
without having first produced them for deposition during
discovery. See Hallich v. G.D. Searle & Co.,
C6-89-0500 (7th Dist. Minn.) (bench opinion). As defendant
convincingly argues, that ruling "implicitly recognized
Searle's lack of prior motive and opportunity to cross-examine
these witnesses on issues peculiar to the case in which their
testimony was being offered." Opp. Mem. at 9.
Drs. Fives-Taylor and Robertson were never produced for
depositions in this case. In fact, when defendant noticed
their depositions on November 2, 1990, plaintiff appealed to
the magistrate judge overseeing discovery for a protective
order preventing the depositions. See Plaintiff's Letter to
Magistrate Buchwald, Nov. 13, 1990. In the tangle of discovery
and other pre-trial disputes, the application was apparently
never resolved, nor were the depositions ever taken.
For the foregoing reasons, this Court finds that the
requirements of FRE 804(b)(1) have not been satisfied in this
case. The former testimony of Dr. Fives-Taylor and Dr.
Robertson is therefore inadmissible under the former testimony
exception to the hearsay rule.
III. PLAINTIFF'S REQUEST TO EXCLUDE EVIDENCE OF THE MEDICAL
AND SEXUAL HISTORIES OF PLAINTIFF AND HER HUSBAND
Plaintiff seeks an order excluding evidence of plaintiff's
sexual history as well as of her husband's sexual history and
medical records. Plaintiff asserts that the evidence is
irrelevant and unduly prejudicial and therefore inadmissible.
Under FRE 402, "all relevant evidence is admissible";
conversely, evidence that is not relevant is not admissible.
See Fed.R.Evid. 402. Rule 401 defines relevant evidence as
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the
evidence." Plaintiff cannot earnestly profess that evidence of
her own or her husband's sexual history is irrelevant to the
issues in this case.
Plaintiff commenced this action seeking damages for her
infertility, which she claims resulted from pelvic
inflammatory disease ("PID") caused by the Cu-7. Thus,
plaintiff must establish at trial that the Cu-7 caused her
infertility, and that other potential causes did not. Current
medical knowledge teaches that PID is caused by several
bacteria, chiefly gonorrhea, chlamydia and genital
mycoplasmas. These bacteria are often transmitted during
sexual activity. Occasionally they are transmitted during
procedures involving the insertion of an instrument through
the vagina and into the uterus; abortions, for example, pose
this sort of an "instrumentation risk." Plaintiff's sexual
history is therefore of the utmost relevance: that she has had
multiple sexual partners bears on the issue of causation, as
does her 1974 abortion. See Nickerson v. G.D. Searle & Co.,
900 F.2d 412, 420 (1st Cir. 1990) (plaintiff in suit alleging that
IUD caused her infertility had burden of proving that it
"caused or contributed to cause her PID. Defendants had the
right to show that the PID could have been caused by something
other than the IUDs.")
For the same reasons, Mr. Hoppe's sexual history is
relevant. Plaintiff's exposure to her husband's sexually
transmitted diseases tends to show that her infertility might
have resulted from something other than defendant's product.
Plaintiff's argument that her medical records disclose no
sexually transmitted disease and that her husband's medical
condition is therefore irrelevant to her condition is
unpersuasive for two reasons. First, as Magistrate Judge
Buchwald observed in a November 26, 1990 Memorandum and Order
in this case,
Memorandum and Order, 88 Civ. 2558 (JFK), Nov. 26, 1990, at 4,
1990 WL 198825 (Magistrate Judge Buchwald) (granting discovery
of plaintiff's sexual history and of Mr. Hoppe's medical and
Second, plaintiff's medical record apparently does indicate
treatment for two sexually transmitted disease, mycoplasma and
trichomonas. More important is the absence of medical
documentation of plaintiff's condition, however. Plaintiff has
produced no records for a nine-year period during which she
had eight sexual partners, and has produced only record of
medical care between the time her Cu-7 was removed in March
1979 until she was diagnosed as having tubal damage in May
1984. See Memorandum and Order, 88 Civ. 2558, Nov. 26, 1990, at
3 (Magistrate Judge Buchwald). Thus, plaintiff's argument that
her medical record is "clean" and her husband's medical
condition is therefore irrelevant is somewhat misleading in
light of the fact that there is scant documentation of regular
gynecological examinations and because PID is often
asymptomatic in any event.
Plaintiff's argument that the evidence is unduly prejudicial
is rejected. Plaintiff has put the cause of her infertility at
issue, and therefore cannot deny the defendant access to
alternative causation evidence. See Smith v. Parmley,
558 F. Supp. 161 (E.D.Tenn. 1982). The evidence of plaintiff's and
Mr. Hoppe's prior sexual histories is directly relevant to the
issues at bar and, while prejudicial, is not unduly prejudicial
such that it substantially outweighs its probativity. See,
e.g., Coursen v. A.H. Robins Co., 764 F.2d 1329, 1339-40 (9th
Cir. 1985) (upholding ...