The opinion of the court was delivered by: Keenan, District Judge.
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,
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
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
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 district court's admission of sexual
history evidence of plaintiff and her husband in Dalkon Shield
case, despite prejudicial nature of evidence).
Plaintiff's final argument is that admitting the evidence
would violate her own and her husband's constitutional rights
to privacy. Plaintiff chose to place her medical condition at
issue by filing this lawsuit; it would be inequitable to
permit plaintiff to select what evidence she wishes to be
admitted, and deny defendant the right to present alternative
theories of causation. Further, Mr. Hoppe is not a wholly
disinterested third party to this action, as Magistrate Judge
Buchwald observed in her order permitting discovery of his
sexual history. See Memorandum and Order, 88 Civ. 2558, Nov.
26, 1990, at 5 (Magistrate Judge Buchwald). Thus, the cases
plaintiff cites in support of her motion to exclude evidence of
Mr. Hoppe's sexual history are inapposite. Mr. Hoppe has had a
presumably exclusive sexual relationship with plaintiff since
1981, and has been married to her since July 1982. Mr. Hoppe
cannot be ruled out as a possible source of plaintiff's medical
For these reasons, plaintiff's request to exclude evidence
of her own and her husband's sexual histories is denied. The
evidence is admissible.
IV. PLAINTIFF'S REQUEST TO PRECLUDE DEFENDANT'S USE OF
DEPOSITIONS OF PERSONS UNDER ITS CONTROL
Plaintiff requests that the defendant be precluded from
using deposition testimony of "any deponent who is under
Searle's control" during plaintiff's case-in-chief. Pl. Mem.
at 2. Plaintiff argues that a party should not be able to
offer the deposition of someone within its control "absent
exceptional circumstances demonstrating that the party cannot
obtain the witness' presence." Id. at 3. Alternatively,
plaintiff requests that Searle be permitted to introduce
deposition testimony of Searle witnesses only during
In its response, defendant explains that it is unsure how
broadly plaintiff intends its request to be read, but states
that it does not intend to offer the deposition testimony of
any Searle employee from another case.
Federal Rule of Civil Procedure 32(a)(3) governs the use of
depositions at trial. Subsection (B) is the only potentially
applicable section in this situation. It provides that a party
may use a deposition if
the witness is at a greater distance than 100
miles from the place of trial or hearing, or is
out of the United States, unless it appears that
the absence of the witness was procured by the
party offering the deposition.
This provision has been interpreted to apply to an individual
party's introduction of his own deposition at trial, see
Richmond v. Brooks, 227 F.2d 490 (2d Cir. 1955), and more
specifically to a corporate defendant's introduction of
depositions of its officers or employees. See Houser v. Snap-On
Tools Corp., 202 F. Supp. 181 (D.Md. 1962); Shedd-Bartush Foods
of Illinois v. Commodity Credit Corp., 135 F. Supp. 78, 90,
aff'd, 231 F.2d 555 (7th Cir. 1956).
The Court finds plaintiff's request unripe, at best, and
ill-supported, at worst. Plaintiff urges the Court to
"consider all the circumstances of why the party is away from
the trial and determine in the light of these factors whether
to allow use of the deposition." Pl. Mem. at 3. Plaintiff
fails, however, to provide the Court with any facts
whatsoever. Plaintiff neither specifies which depositions it
opposes nor discusses the availability of particular deponents
for live testimony. The Court must therefore deny this
V. PLAINTIFF'S REQUEST TO INCLUDE THE COST OF IN VITRO
FERTILIZATION AND HER RESULTING PAIN AND SUFFERING AS
ITEMS OF DAMAGES
Plaintiff requests that the expenses she incurred for in
vitro fertilization procedures as well as her accompanying
pain and suffering be included as items of damages. She
alleges that the Cu-7 rendered her infertile and therefore
unable to conceive a child in a natural manner. Because she
and her husband wish to have a child, plaintiff has had to
undergo numerous in vitro fertilization procedures. Plaintiff
asserts that the procedures were necessitated by defendant's
conduct, and that the pain and suffering she has experienced
as a result of these procedures is also directly traceable to
defendant's conduct. Therefore, she argues, both the expenses
and the pain and suffering are recoverable.
In a tort action, the general rule is that the wrongdoer is
liable for any injury that is the natural and probable
consequence of his misconduct and that is reasonably
foreseeable. See Walser v. Vinge, 275 Minn. 230,
146 N.W.2d 537, 540 (1966); Tarnowski v. Resop, 236 Minn. 33,
51 N.W.2d 801, 804 (1952). The particular form or character of the injury
need not be foreseen or anticipated. See Corpus Juris Secundum,
Damages, § 25 at 674 & n. 72 (1966). A plaintiff's recovery may
include compensation for impairment of physical functions or
other disability, reasonable expenses for medical attention,
and compensation for his pain and suffering. See Hallada v.
Great Northern Railway, 244 Minn. 81, 69 N.W.2d 673, cert.
denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773 (1955);
Dawydowycz v. Quady, 300 Minn. 436, 220 N.W.2d 478, 481 (1974);
25 Corpus Juris Secondum, Damages, § 47(2) at 761-65.
While neither party has cited any cases directly on point,
plaintiff cites several cases that are analogous. In each of
the three cited cases the plaintiff recovered damages for
medical procedures necessitated by the defendants' tortious
conduct. See, e.g., Nolan v. Merecki, 88 A.D.2d 1021, 451
N YS.2d 914 (3d Dept. 1982) (expenses for additional medical
care following failed sterilization procedure were
recoverable); Miller v. Duhart, 637 S.W.2d 183 (Mo. App. 1982)
(damages stemming from failed tubal ligation could include cost
of second, corrective sterilization procedure); Beardsley v.
Wierdsma, 650 P.2d 288 (Wyo. 1982) (in consolidated action,
plaintiffs who had had unsuccessful tubal ligations could
recover cost of abortions as well as damages for pain and
suffering). The case at bar is similar: here, plaintiff alleges
that she was rendered infertile by defendant's product, an
injury that necessitated corrective procedures. That plaintiff
was allegedly injured by a defective product,
rather than by a doctor's malpractice, does not adequately
distinguish these cases. The determinative similarity between
them and the case at bar is that plaintiff suffered an injury
that she attempted to correct through further medical
Without attempting to distinguish these cases, defendant
urges that plaintiff cannot recover the cost of the
fertilization procedures because the procedures were
"elective." Defendant offers only one case in support of this
proposition, and in fact misreads that case. In Laino v. James
Way Corp., 92 A.D.2d 652, 460 N.Y.S.2d 175, 176 (3d Dept.
1983), the appellate court affirmed plaintiff's recovery for
the cost of diagnostic treatment, even though the plaintiff was
found to have suffered no injury. Defendant suggests that this
case holds that "[m]edical treatment, especially elective
medical treatment, does not itself constitute actionable
damages." Opp. Mem. at 17. If anything, however, the case
supports the opposite contention: that the cost of "elective"
or diagnostic medical treatment is recoverable.
In this case, the jury may find that defendant's product was
the direct cause of plaintiff's infertility, and may also find
that the infertility was foreseeable. Should it so find, the
jury may consider the costs of Mrs. Hoppe's in vitro
fertilization procedures in determining damages.
Next, plaintiff argues that she should recover for her pain
and suffering. As a general rule, a plaintiff in a personal
injury action is entitled to compensation for the pain and
suffering proximately and directly resulting form the wrongful
act alleged. See Hallada v. Great Northern Railway, 244 Minn. 81,
69 N.W.2d 673, 685, cert. denied, 350 U.S. 874, 76 S.Ct.
119, 100 L.Ed. 773 (1955); Dawydowycz v. Quady, 300 Minn. 436,
220 N.W.2d 478, 481 (1974). Under Minnesota law, pain and
suffering includes physical suffering as well as embarrassment,
humiliation and frustration. See Ahlstrom v. Minneapolis, St.
Paul & Sault Ste. Marie Railroad Co., 244 Minn. 1,
68 N.W.2d 873, 890 (1955).
Defendant argues that because the in vitro procedures were
elective, plaintiff should not be able to recover for any pain
and suffering occasioned by her infertility. In support,
defendant cites Bubash v. Philadelphia Elec. Co., 717 F. Supp. 297
(E.D.Pa. 1989). The plaintiff in that case was denied
damages for emotional distress because she had not made out a
prima facie case of emotional distress under Pennsylvania law.
This case is inapposite for two reasons: first, infliction of
emotional distress is a cause of action, not a measure of
damages, and Mrs. Hoppe does not allege either negligent or
intentional infliction of emotional distress. Second,
Pennsylvania law does not apply to this case.
Should plaintiff prove that her infertility resulted from
the defendant's product, any pain and suffering that she
experienced due to her subsequent in vitro therapy is a proper
item of damages and proof of it may be submitted to the jury.
See, e.g., Caro v. Skyline Terrace Cooperative, Inc.,
132 A.D.2d 512, 517 N.Y.S.2d 531 (2d Dept. 1987) (jury could
consider evidence of pain and suffering plaintiff would
experience during surgery necessitated by plaintiff's injury).
Therefore, both the expense incurred and pain and suffering
experienced because of plaintiff's in vitro fertilization
treatment are proper items of damages and may be submitted to
the jury if the defendant's liability is established.
VI. PLAINTIFF'S REQUEST TO STRIKE DEFENDANT'S FIRST, FIFTH,
SIXTH AND NINTH AFFIRMATIVE DEFENSES
Plaintiff requests that defendant's first, fifth, sixth and
ninth affirmative defenses be stricken pursuant to Federal
Rule of Civil Procedure 12(f). That rule provides that
[u]pon motion made by a party before responding
to a pleading . . . or upon the court's own
initiative at any time, the court may order
stricken from any pleading any insufficient
defense. . . .
Because a court may strike an insufficient defense on its own
initiative at any time, it
, 1111-14 (4th Cir.), cert. denied,
S.Ct. 260, 102 L.Ed.2d 248 (1988); Stephens v. G.D. Searle &
Co., 602 F. Supp. 379, 382 (E.D.Mich. 1985); Feldman v. Lederle
(N.J. 1984). More
specifically, other reported Cu-7 cases have ruled that FDA
regulations do not preempt plaintiffs' state-law tort claims.
See, e.g., Hill v. Searle Laboratories,
(8th Cir. 1989); Callan v. G.D. Searle & Co., 709 F. Supp. 662
(D.C.Md. 1989); Allen v. G.D. Searle & Co., 708 F. Supp. 1142,
1150-52 (D.Or. 1989); Kociemba v. G.D. Searle & Co.,
680 F. Supp. 1293, 1298-1300 (D.Minn. 1988); Spychala v. G.D. Searle
& Co., 705 F. Supp. 1024, 1027-31 (D.N.J. 1988).
Defendant fails to cite even one case holding that the
preemption defense is a valid one. Therefore, given the weight
of authority, this Court finds as a matter of law that
defendant's first affirmative defense of preemption is
insufficient and therefore orders that it be stricken from the
Plaintiff next argues that defendant's fifth, sixth and
ninth affirmative defenses should be stricken because they
were rendered "moot and immaterial" by prior decisions of this
Court. The fifth affirmative defense asserts that
"[p]laintiff's claims are barred for failure to give timely
notice as required by the applicable statutes, and are barred
by the applicable statutes of limitations." Plaintiff asserts
that because this Court ruled upon the statute of limitations
argument in its October 24, 1989 summary judgment decision,
that portion of the fifth affirmative defense is moot. In
response, defendant argues that the Court did not explicitly
rule that plaintiff's action was timely. Defendant's argument
is specious. Had the Court found that the action was untimely,
defendant's motion for summary judgment would have been
granted. The motion was denied, however, because the action
was found to have been timely. Therefore, the statute of
limitations portion of the fifth affirmative defense is
insufficient and is ordered stricken from the pleadings.
In an October 1989 decision denying defendant's motion for
summary judgment, this Court ruled that the law of Minnesota
would apply to this action. See Memorandum Opinion and Order,
Hoppe v. G.D. Searle & Co., 88 Civ. 2558 (JFK), slip op. at 5,
7 (October 24, 1989). That decision was based on the clear
mandate of Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11
L.Ed.2d 945 (1964), which provides that when a case is
transferred pursuant to 28 U.S.C. § 1404(a), the transferee
court should apply the law of the transferor court. While the
Court sees little utility in revisiting that decision, it will
briefly suggest why Minnesota's choice-of-law rules recommend
the application of Minnesota substantive law.
As for advancement of the forum's governmental interest, it
seems that Minnesota has a valid interest in the facts of this
case. First, the defendant does not deny that it has
transacted and continues to transact business in Minnesota,
has committed acts within that state, and has "minimum
contacts" with Minnesota. See Order, Hoppe v. G.D. Searle &
Co., 683 F. Supp. 1271, 1271-72 (Renner, J.) (D.Minn. 1988).
Those contacts involve the product at issue in this lawsuit.
Searle not only promoted and sold the Cu-7 in Minnesota, Searle
also conducted clinical testing in that state, testing that
plaintiff contends was tortiously inadequate. This testing,
which was conducted
"at Searle's behest and for Searle's benefit," relied on the
participation of Minnesota physicians and Minnesota subjects.
See id. at 1275. At least two of these physicians apparently
expressed misgivings about the Cu-7, including one doctor who
informed Searle of a possible design defect in the Cu-7.*fn1
Plaintiff's claim turns at least in part on whether Searle's
testing of the Cu-7 was adequate and conformed to the
appropriate standards of conduct. Therefore, it appears that
the application of Minnesota law is warranted under the facts
of the case, as the plaintiff's claims can be said to "`lie
in the wake of the commercial activities'" defendant conducted
in Minnesota. See id. at 1275 (citation omitted).
Therefore, defendant's request for an order dismissing
counts six and seven of the complaint on the ground that they
are not cognizable under New York law is denied.
Plaintiff next requests that post-injury conduct by Searle
be admitted under the Minnesota Punitive Damages Statute,
Minn.Stat. § 549.20 (1990 Pocket Part). This statute provides
As plaintiff observes, several decisions of the Minnesota
Supreme Court suggest that post-injury evidence is admissible.
See, e.g., Hodder v. The Goodyear Tire & Rubber Co.,
(Minn. 1988), cert. denied,
106 L.Ed.2d 610 (1989) (admitting evidence of defendant's
refusal to implement government regulations two years after
plaintiff's injury); Advance Training Systems v. Caswell
(Minn. 1984) (admitting evidence of
defendant's conduct prior to that giving rise to plaintiff's
cause of action under subdivision 3 of Minn.Stat. § 549.20,
which provides that trier of fact must consider duration of
defendant's conduct in assessing punitive damages). Even more
persuasive, evidence of post-injury conduct has been admitted
against Searle in a similar lawsuit. See Kociemba v. G.D.
Searle & Co., 707 F. Supp. 1517, 1536 (D.Minn. 1988).
Plaintiff responds that the reports do not constitute
inadmissible hearsay because plaintiff will not offer them to
prove the truth of the matters asserted. See Pl.Opp. Mem. at 1.
Rather, plaintiff will offer them to prove Searle's knowledge
and awareness of adverse experiences with the Cu-7. Other
courts have admitted this sort of drug experience evidence in
product liability cases. See Kehm v. Procter & Gamble Mfg. Co.,
724 F.2d 613 (8th Cir. 1983) (upholding trial court's admission
of documents and testimony detailing complaints about
defendant's tampons in toxic shock syndrome case); Worsham v.
A.H. Robins Co., 734 F.2d 676 (11th Cir. 1984) (affirming trial
court's admission of reports from doctors and company field
representatives describing adverse reactions to Dalkon Shield).
DER reports dated before March 28, 1978, the approximate
date of the insertion of plaintiff's Cu-7, are properly
admitted into evidence on the issue of notice under Federal
Rule of Evidence 401. See Kehm, 724 F.2d at 625-26 (citing
Ramos v. Liberty Mutual Ins. Co., 615 F.2d 334, 338-39 (5th
Cir. 1980)), cert. denied, 449 U.S. 1112, 101 S.Ct. 921, 66
L.Ed.2d 840 (1981). Therefore, defendant's motion to exclude
the reports is denied.