Lammert v. Dalkon Shield Trust

216 B.R. 539, 1997 Bankr. LEXIS 1500
CourtDistrict Court, E.D. Virginia
DecidedSeptember 16, 1997
DocketNo. 85-01307-R
StatusPublished
Cited by1 cases

This text of 216 B.R. 539 (Lammert v. Dalkon Shield Trust) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lammert v. Dalkon Shield Trust, 216 B.R. 539, 1997 Bankr. LEXIS 1500 (E.D. Va. 1997).

Opinion

MEMORANDUM

MERHIGE, Senior District Judge.

This matter is before the Court on the motion of Daikon Shield Claimant Robert A. Lammert (“Mr. Lammert”) to set aside his alternative dispute resolution decision.1 The [541]*541Daikon Shield Claimants Trust (the “Trust”) opposes Mr. Lammert’s motion. On September 10, 1997, the Court took evidence and heard argument on the motion. For the reasons which follow, the Court will DENY Mr. Lammert’s motion.

I.

Mr. Lammert is a non-user Daikon Shield claimant who claims that he has suffered injuries as a result of his wife’s (“Mrs. Lammert”) use of the Daikon Shield IUD. Mr. Lammert rejected the Trust’s settlement offer and chose to resolve his claim through binding Alternative Dispute Resolution (“ADR”). Mr. Lammert’s ADR hearing was held in Chicago, Illinois on February 6, 1996 before Referee Lynn P. Cohn. At the hearing, Mr. Lammert, who was represented by counsel,2 presented evidence in support of his claim that Mrs. Lammert’s use of the Daikon Shield caused her pelvic inflammatory disease (“PID”), uncontrolled bleeding, infections, and an ectopic pregnancy resulting in permanent damage to her right fallopian tube. Mr. Lammert alleges significant personal injuries and financial losses as a result of Mrs. Lammert’s injuries.

On February 13, 1996, Referee Cohn issued her written decision denying Mr. Lammert any compensation for his claimed injuries. Trust Ex. B. She found that while it was undisputed that Mrs. Lammert had used the Daikon Shield, Mr. Lammert failed to meet his burden of proof as to his wife’s injuries. Id. at 4-5.3

On March 24,1996, Mr. Lammert wrote to the Trust requesting “a nullification of the referee’s decision” on the basis of “the referee’s bias and vindictiveness against [him].” Trust Ex. C. Mr. Lammert requested that he be granted a new ADR hearing before a new referee, that Referee Cohn be removed from the ADR program, and that all of her past decisions be reviewed for bias, unreasonableness, and vindictiveness. Id. at 2.

The Trust responded to Mr. Lammert on April 12, 1996, advising him that he could obtain judicial relief under the standard articulated by this Court in Bledsoe. Trust Ex. D. Accordingly, on April 22, 11096, Mr. Lammert filed the instant motion seeking relief on the basis of referee misconduct. His specific grounds for relief are set forth in his March 24, 1996 letter to the Trust, which he attached as an exhibit to his motion. In that letter, Mr. Lammert alleges referee bias, contends that the decision “shows a total lack of reason,” and suggests that his wife’s substantial settlement from the Trust was relevant to his ADR ease and should have been considered by Referee Cohn. Trust Ex. C.

On August 4, 1997, Mr. Lammert submitted his reply to the Trust’s Response’To His Motion To Set Aside His ADR Decision. In that letter, Mr. Lammert argues that Referee Cohn should have applied In re A.H. Robins Co. (Reichel v. Daikon Shield Claimants Trust), 109 F.3d 965 (4th Cir.1997), to his case.4 By failing to do so, Mr. Lammert contends that Referee Cohn erred and thus, he is entitled to a new hearing.

II.

This Court has, on numerous occasions, articulated the high standard a movant [542]*542must satisfy in order to be entitled to relief from ADR. E.g., In re A.H. Robins Co. (Goodman v. Daikon Shield Claimants Trust), 209 B.R. 366 (E.D.Va.1997); In re A.H. Robins Co. (Galarneau v. Daikon 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.” In re A.H. Robins Co. (Bledsoe v. Daikon Shield Claimants Trust), 197 B.R. 550, 554 (E.D.Va.), aff'd, 112 F.3d 160 (4th Cir.1997). One example of such misconduct is where a referee “brazenly refuses to abide by the ADR rules or makes plainly egregious and patently unfair procedural errors.” Id.

III.

Mr. Lammert does not contend that Referee Cohn refused to abide by the ADR rules or made plainly egregious and patently unfair procedural errors. Instead, Mr. Lammert alleges that Referee Cohn’s decision shows a lack of reason and can only be explained by her bias and vindictiveness. In support of these contentions, Mr. Lammert reviews the evidence presented at his ADR hearing which he contends proves that he is entitled to compensation.

The Court finds that Mr. Lammert has failed to present clear and convincing evidence to support his claim that Referee Cohn’s decision was the product of either bias or vindictiveness. On the contrary, the evidence and record in this case reveal that Referee Cohn considered the evidence and found that Mr. Lammert failed to meet his threshold burden of proving that his wife’s injuries were caused by the Daikon Shield. The Referee’s rejection of Mr. Lammert’s position in favor of that of the Trust in no way suggests bias or vindictiveness on the part of a referee. See Bledsoe, 197 B.R. at 555 (referee’s adoption of one party’s position is not indicative of partiality or a lack of independence).

In the absence of clear evidence that Referee Cohn was biased, Mr. Lammert is not entitled to have this Court review the findings and conclusions of the referee. E.g., Id. at 554; In re A.H. Robins Co. (Kelly v. Daikon Shield Claimants Trust), 210 B.R. 697 (E.D.Va.1997); In re A.H. Robins Co. (West & West v. Daikon Shield Claimants Trust), 210 B.R. 699 (E.D.Va.1997). A motion under Bledsoe to set aside a referee’s decision is not a vehicle whereby unsuccessful Daikon Shield claimants may relitigate their ADR claims. “In the absence of a clear showing of flagrant referee misconduct, there is no second bite at the apple — a claimant’s case ends with the decision of the referee.” West & West, 210 B.R. at 702.

To the extent that Mr. Lammert argues that his wife’s settlement of her claim with the Trust dictates that he too is entitled to compensation, he is plainly mistaken. This Court has addressed this precise issue in In re A.H. Robins Co. (Daikon Shield Claimants Trust v. Fleming), 197 B.R. 541 (E.D.Va.1995). There, this Court held that any information related to a wife’s prior settlement offer “is inadmissible in ADR proceedings” under § G.4 of the CRF. Id. at 547. Accordingly, Mrs. Lammert’s substantial settlement with the Trust was irrelevant in Mr. Lammert’s ADR proceeding.

Finally, with respect to Mr. Lammert’s argument that In re A.H. Robins Co. (Reichel v. Daikon Shield Claimants Trust), 109 F.3d 965 (4th Cir.1997), should have been applied to his case, the Court finds that here too Mr. Lammert is mistaken. Mr. Lammert’s ADR hearing was held on February 6, 1996 — one month before Reichel was argued before the Fourth Circuit and thirteen months before the decision was issued. There is no indication in the opinion that the Fourth Circuit intended its holding to apply retroactively.

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