outweighed by the dangers of unfair prejudice, confusion of the issues and misleading the jury. As support for this argument, defendants reiterate their contentions that the studies were not trustworthy and were based on multiple levels of hearsay and diagnostic judgments. Having previously disposed of these contentions, I find that the studies are highly probative of causation and their probative value is not substantially outweighed by the dangers of prejudice, confusion, misleading the jury or waste of time.
I therefore hold the case control studies conducted by the CDC and state health departments admissible into evidence. Furthermore, plaintiffs' experts may refer to and may base their testimony upon these studies.
I see no need for the hearing requested by defendants. This precise question was litigated in two previous cases involving Rely tampons and both courts admitted the studies and allowed expert testimony based upon them. Kehm v. Procter & Gamble Co., Civ. No. C 80-119 (N.D.Iowa June 29, 1982), Lampshire v. Procter & Gamble Co., Civ. No. 80-F-167 (D.Colo. March 8, 1981).
Defendants' motion to exclude these studies, any reference to them, and any expert testimony based upon them is denied. Defendants' motion for a hearing on this matter to be held on the first day of trial is also denied.
VII. In-Court Experiments
Defendants have moved to preclude the performance of in-court experiments by plaintiffs' experts. In particular, defendants refer to a demonstration performed by Dr. Phillip Tierno as part of his testimony in Kehm v. Procter & Gamble, supra in which an enzyme was added to a component of Rely tampons to show the liquification of the component into glucose.
Defendants object to this demonstration on the following grounds: (1) it would not be performed under conditions substantially similar to conditions found in the human vagina and (2) its probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. Plaintiffs argue that the demonstration is highly probative of Dr. Tierno's theory that a component of Rely is capable of being broken down by enzymes naturally found in the vagina.
Experimental evidence is admissible if relevant and probative. Glick v. White Motor Company, 458 F.2d 1287, 1294 (3d Cir. 1972). The probative value of such evidence depends upon whether the conditions of the experiment are identical with or similar to the actual conditions in question. Id. at 1294. The trial court has discretion in measuring the degree of similarity and so long as there are valid points of similarity, the evidence is admissible. Lever Bros. Co. v. Atlas Assur. Co., 131 F.2d 770, 777 (7th Cir. 1942). The differences in conditions go only to the weight of the evidence. Hopkins v. E.I. DuPont De Nemours & Co., 199 F.2d 930, 934 (3d Cir. 1952), Lever Bros. Co., supra.
The experiment performed during the course of the Kehm trial and described by Chief Judge McManus, Kehm, supra, consisted of adding an enzyme, Betaglucosidase, to carboxymethyl-cellulose (CLD) chips taken from a Rely tampon with the intended result being the liquification of the chips into glucose. The experiment was intended to illustrate Dr. Tierno's theory that the staph infection associated with TSS is caused by the glucose acting as food for staph aureus bacteria. This results in increased production of staph aureus toxins which in turn combine with other factors to cause TSS.
Judge McManus found, and I agree, that the experiment was highly relevant to plaintiffs' theory of causation. The basic purpose of the experiment is to demonstrate that CLD is capable of being broken down when exposed to an enzyme found in the vagina. These ingredients are present in both the experimental condition and the actual condition. While there are differences in the conditions, some of these differences will be obvious to the jury and others will be developed, as in Kehm, during examination of plaintiffs' expert.
I find that the evidence will not cause undue prejudice or confusion of the issues. Defendants refer to the case of Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st Cir. 1973) in which the Court indicated that it might have been error for the trial court to allow a demonstration of burning fabric before a jury in a case involving burn injuries to a 12-year old child. However, the performance of the experiment at issue here will not have the same kind of emotional impact upon the jury that the evidence in Raymond would have had. Nor do I believe that the jury will be confused or misled by the experiment. As previously stated, any difference in conditions will be obvious or else brought to light during examination of plaintiffs' witness and more properly goes to the weight to be given to the evidence than to its admissibility.
Defendants' motion to preclude the performance of the in-Court experiment herein described is denied.
A motion to intervene pursuant to Fed.R.Civ.P. 24(b) has been brought by some 20 persons, all named plaintiffs in 13 separate actions against defendants pending in nine different federal district courts and three state courts. These plaintiffs seek to intervene for the limited purpose of determining the fact of defendants' liability to them. More specifically, their brief states that they wish to intervene for the purpose of determining their right to compensatory and/or punitive damages against defendants excluding the issues of individual causation and damages, which issues will be litigated in the courts in which they brought their original actions.
Fed.R.Civ.P. 24(b) provides in pertinent part:
Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common . . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
In determining whether to permit intervention pursuant to the above rule, the court must first decide whether the main claim and the applicant's claim have a common question of law or fact. Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th Cir. 1977). Even if the court does find a common issue of law or fact, it may, in the exercise of its sound discretion, deny permissive intervention. Grogan v. American Brands, Inc., 70 F.R.D. 579, 584 (1976), Rockford v. Secretary of Housing and Urban Development, 69 F.R.D. 363, 366 (1975).
Intervenors argue that they share a common question of law with plaintiffs in the present case. However, I disagree.
The law applicable to the case at bar is the law of New Jersey. It is this law that will determine whether defendants are liable under a theory of strict liability, whether punitive damages are available to plaintiffs under such a theory, what standards must be applied in determining entitlement to punitive damages, and what defenses are available to defendants. None of the claims brought by the intervenors is governed by New Jersey law. These claims have been brought in federal and state courts in Florida, North Carolina, Wisconsin, Connecticut, Pennsylvania, Montana, Arizona, Utah, Washington, South Dakota, and California and are governed by the laws of those states. I therefore find no question of law common to these claims and the claims of plaintiffs in the case at bar.
Intervenors next argue that a common factual question exists as to whether a component of Rely tampons can be broken down into a substance that promotes the growth of the bacteria that cause TSS. However, the issue of causation must be individually litigated, as intervenors concede. When that issue is removed from the above formulation, a very narrow question of fact remains. The purpose of permissive intervention is to avoid a multiplicity of suits by settling related controversies in a single action. Fed.Proc., L. Ed. § 59-333 (1981). This purpose would be poorly served by granting the current motion since extensive issues, legal and factual, would remain to be litigated in the intervenors' original forums. While the delay resulting from intervention might be minimal, so would the conservation of judicial resources.
Twice before, intervenors attempted to consolidate these proceedings. Both attempts failed. This application is simply one more effort by intervenors to get into court through the back door. However, they each have an adequate remedy in the form of an already pending action in the original forum, therefore permissive intervention may be denied. See Korioth v. Briscoe, 523 F.2d 1271, 1279 (5th Cir. 1975), Illinois v. Bristol-Myers Co., 152 U.S. App. D.C. 367, 470 F.2d 1276, 1279 (D.C.Cir. 1972). Although there may be a very narrow common factual question, in the exercise of my discretion, I deny leave to intervene.
Attorney for defendants shall submit an appropriate order within five (5) days.