“Plaintiff Amy Shields has brought a products liability action against the defendant. Specifically, she alleges that she was severely and permanently injured, including, but not limited to, clear cell adenocarcinoma of the vagina, as a result of her exposure in utero in 1955 to diethylstilbestrol (DES) manufactured, sold, distributed, and/or promoted by the defendant. The case is presently before the Court on defendant’s Motion for Summary Judgment.
SHIELDS v. ELI LILLY & CO., Leagle, 1988709697FSupp12_1705, September 26, 1988.
In her response to defendant’s interrogatories, plaintiff states that her mother was prescribed DES during the “early period of [her] pregnancy” with plaintiff by Dr. Alexander B. Sinclair. Dr. Sinclair has since died, and his medical records are no longer in existence. Plaintiff further responded that her mother filled the prescription at Watkins Drug Store, but that her mother has no other recollection of the physical description of the pill taken or instructions for its use.
Prior to plaintiff’s submission of the answers to interrogatories, plaintiff’s counsel deposed plaintiff’s mother, Margaret Shields. Margaret Shields testified in her deposition that she was staining during the first trimester, and her obstetrician, Dr. Sinclair, put her on bed rest and gave her a prescription to prevent miscarriage. While she did not recall the name of the medication, she described it as similar to “little red cinnamon drops or pills,” which were smaller than aspirin, and said that she took it twice daily for about one month. She further testified that her recollection was refreshed by a small, red pill that she had picked from a “lineup” of some twenty-five pills shown her by plaintiff’s counsel. Plaintiff gives no explanation for the inconsistency between this deposition testimony and the subsequent response to defendant’s interrogatories, other than to say that plaintiff did not confer with her mother in completing the interrogatories, notwithstanding the express instructions to do so. Finally, Margaret Shields testified that her belief that the medicine she took was DES was based solely on the much later consensus of opinion of plaintiff’s physicians, and that she had never made any effort to confirm that she had indeed taken DES..
Far from corroborating Margaret Shields’ deposition testimony, her labor and delivery records, as well as subsequent medical records, tend to contradict it. First, her labor and delivery records for plaintiff’s birth contain the cryptic notation, “spotting — 3 days — June cleared bed rest.” Second, when Margaret Shields gave her medical history to a different doctor during her second pregnancy, she apparently made no mention of any medication. Those records contain the notation, “3½ months — bleeding — 4 days in bed.”
Dr. Sinclair’s nurse from the mid-1950’s, Marjorie Clifford, was also deposed, after first submitting a sworn affidavit. However, contrary to plaintiff’s argument, in her brief and during oral argument, neither the affidavit nor deposition shows that Dr. Sinclair had a “custom” or “habit” of prescribing DES to pregnant women who were bleeding and threatening to miscarry. In fact, just the opposite is true. First, in nurse Clifford’s affidavit, she stated that she recalled Margaret Shields being a patient of Dr. Sinclair’s. Further, she recalled that “on occasion,” Dr. Sinclair would prescribe DES to women who were straining or threatening to miscarry in early pregnancy. Nurse Clifford’s subsequent deposition is even more telling. When asked about “Dr. Sinclair’s usual, ordinary management of the case,” nurse Clifford responded, “The first thing he insisted upon was absolute bed rest. If they didn’t respond to bed rest, he may have used, on occasion, some oral medications or injectable medications. It depends. Each situation was a little different.”
Plaintiff next relies on two affidavits.
- In the first, Dr. Shane, a physician/pathologist, states that he has reviewed three slides taken from the vaginal tract of Amy Shields, and that in his opinion the tissue was abnormal. Further, he feels this abnormality “was caused by her in-utero exposure to synthetic estrogen (DES) or its congeners and that such pathologic findings would not appear in the absence of DES exposure to a statistical certainty of 97% to 99.7%.”
- In the second affidavit, Linwood Tice, a professor at the Philadelphia College of Pharmacy and Science, states that he is “personally familiar with the physical appearances of the commonly-used pharmaceuticals employed by physicians in the 1950’s,” and that based on that familiarity, he feels “there was no progesterone or progesterone-type medication commonly and ordinarily on the market and dispensed which was red in color and smaller than an aspirin in size.”
Finally, prior to any litigation, plaintiff was diagnosed as having DES changes in her cervix and vagina.” …
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