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November 19, 1991


The opinion of the court was delivered by: Keenan, District Judge.


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.


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 reasonable means."

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.


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,

  at the close of [this case], no one will be able
  to say with certainty how plaintiff contracted
  the PID. The issue to be resolved in this case is
  whether it is more likely than not that plaintiff
  obtained or contracted PID because she used
  defendant's product or for some other reason.
  Plaintiff cannot ignore the statistical fact that
  more than a half of PID cases are caused by
  sexual transmission. Further, plaintiff may not
  establish causation or inhibit defendant's
  efforts by excluding evidence of mathematically
  more likely

  sources of the complained disease. Thus, the
  greater plaintiff's exposure to disease
  conditions of partners, the more the mathematical
  odds increase that she contracted the disease for
  a reason other than the use of defendant's

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 sexual history).

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 ...

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