Widmark v. Dalkon Shield Trust

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 26, 1998
• Docket: 98-1522
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: A. H. ROBINS COMPANY, INCORPORATED,

Debtor.

No. 98-1522 LENORE WIDMARK, Claimant-Appellant,

v.

DALKON SHIELD CLAIMANTS TRUST, Trust-Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge; Blackwell N. Shelley, Bankruptcy Judge. (CA-85-1307-R)

Submitted: September 30, 1998

Decided: October 26, 1998

Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Michael Villeck, Howard Eison, SANDERS, SANDERS, BLOCK & WOYCIK, P.C., Mineola, New York, for Appellant. Orran Lee Brown, Sr., DALKON SHIELD CLAIMANTS TRUST, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Lenore Widmark, a Dalkon Shield Claimant, elected to resolve her claim through binding arbitration. The arbitrator issued an unfavor- able decision, concluding that Widmark's pelvic inflammatory dis- ease did not arise from her use of the Dalkon Shield. Widmark then filed a motion to vacate the arbitrator's decision in the district court. The district court denied the motion, and Widmark appealed.

We vacate and remand. Widmark established that she used the Dalkon Shield and suffered from pelvic inflammatory disease, an injury appearing in Exhibit A to the Claims Resolution Facility. She therefore was entitled to the presumption of causation announced in In re A. H. Robins Co. (Reichel v. Dalkon Shield Claimants Trust), 109 F.3d 965 (4th Cir. 1997), because the presumption applies in binding arbitration. See In re A.H. Robins Co. (King v. Dalkon Shield Claimants Trust, 1998 WL 544770, at *1 (4th Cir. Aug. 17, 1998) (unpublished). We vacate the order of the district court because the arbitrator did not apply the presumption. We dispense with oral argu- ment because the facts and legal contentions are adequately presented in the materials before the court and oral argument would not aid the decisional process. In light of this disposition, the motion to acceler- ate oral argument is denied, and the case is remanded to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED* _________________________________________________________________ *The motion of the Trust filed October 5, 1998, to submit a surrebuttal brief is granted.