Harmon v. Dalkon Shield Trust (In re A.H. Robins Co.)

220 B.R. 577, 1998 Bankr. LEXIS 373

• Court: District Court, E.D. Virginia
• Decided: March 6, 1998
• Docket: No. 85-01307-R
• Status: Published

Opinion

MEMORANDUM

MERHIGE, District Judge.

This matter is before the Court on the motion of Daikon Shield Claimant Lulu Mae Harmon (“Ms. Harmon”) to vacate her alternative dispute resolution decision.¹ The Daikon Shield Claimants Trust (the “Trust”) opposes Ms. Harmon’s motion. On January 27, 1998, the Court took evidence and heard argument on the motion. For the reasons which follow, the Court will DENY the motion.

I.

Ms. Harmon is a Daikon Shield claimant who claims that she has suffered injuries as a result of her use of the Daikon Shield. Ms. Harmon originally chose to process her claim under Option 2 of the CRF; but when she rejected the Trust’s initial settlement offer, she proceeded under Option 3. After again rejecting the Trust’s offer — this time for a de minimis amount because of insufficient proof of Daikon Shield use, Ms. Harmon elected to resolve her claim through binding Alternative Dispute Resolution (“ADR”).

Ms. Harmon’s ADR hearing was held in Dallas, Texas on September 5, 1996, before Referee Cecilia H. Morgan. Although Ms. Harmon testified that she had two Daikon Shield IUDs inserted in 1969 and 1971, the Trust contended that the IUDs were actually Lippes Loops and not Daikon Shields.² Thus, the Trust argued that any injuries which Ms. Harmon suffered were not com-pensable. On September 7, 1996, Referee Morgan issued her written decision in which she found that Ms. Harmon had failed to meet her burden of proving that she used a Daikon Shield IUD. Accordingly, the Referee denied Ms. Harmon any compensation for her injuries.

On November 15, 1996, Ms. Harmon filed the present motion. In her motion, Ms. Harmon argues that she was “misrepresented by the referee ... by giving facts to rule out my settlement.” In addition, Ms. Harmon claims that she has “credible evidence” that will show that the decision was unfair. Based on the foregoing, Ms. Harmon has moved the Court to order a new ADR hearing.

II.

This Court has, on numerous occasions, articulated the high standard a movant must satisfy in order to be entitled to relief from ADR. E.g., In re A.H. Robins Co. (Goodman v. Dalkon Shield Claimants Trust), 209 B.R. 366 (E.D.Va.1997); In re A.H. Robins Co. (Galarneau v. Dalkon Shield Claimants Trust), 201 B.R. 142 (E.D.Va.1996). It is well-settled that this Court will only review an ADR decision under the most “extreme circumstances” where a claimant can demonstrate “flagrant referee misconduct by clear and convincing evidence.” Bledsoe, 197 B.R. at 554.

In the instant ease, the Court finds that Ms. Harmon has failed to present clear and convincing evidence that Referee Morgan refused to abide by the ADR rules or made plainly egregious and patently unfair procedural errors. Ms. Harmon is simply dissatisfied with her ADR decision. As this Court has previously held, however, a motion to set aside an ADR decision is not a vehicle whereby unsuccessful Daikon Shield claimants may relitigate their claims. See In re A.H. Robins Co. (Bledsoe v. Dalkon Shield Claimants Trust), 197 B.R. 550 (E.D.Va.), aff'd, 112 F.3d 160 (4th Cir.1997). In the absence of clear evidence of flagrant referee misconduct or other extreme circumstances which would warrant relief from ADR, the Court will not disturb the decision of Referee Morgan. Accordingly, the Court will DENY Ms. Harmon’s motion.

1 . In a letter dated November 14, 1996, Ms. Harmon wrote to the Court seeking reversal of her ADR decision. Pursuant to In re A.H. Robins Co. (Bledsoe v. Dalkon Shield Claimants Trust), 197 B.R. 550 (E.D.Va.1995), aff'd, 112 F.3d 160 (4th Cir.1997), the letter was docketed on November 15, 1996 as a Motion To Enforce The Plan And Set Aside The ADR Decision. The Court notes that Ms. Harmon appears pro se and is mindful that courts must liberally construe the pleadings of pro se parties. See Gordon v. Leeke, 574 F.2d 1147, 1151-52 (4th Cir.) cert. denied, 439 U.S. 970, 99 S.Ct. 464, 58 L.Ed.2d 431 (1978); Coleman v. Peyton, 340 F.2d 603, 604 (4th Cir.1965).

2 . A 1977 x-ray revealed two Lippes Loop IUDs in Ms. Harmon's uterus. In addition, her medical records contained several references to an IUD other than the Daikon Shield.