101 F.3d 129 (D.C. Cir. 1996), 95-7270, Ambrosini v. Labarraque

Docket Nº:95-7270.
Citation:101 F.3d 129
Party Name:Teresa AMBROSINI, et al., Appellants, v. Jorge LABARRAQUE and The Upjohn Company, Appellees.
Case Date:December 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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101 F.3d 129 (D.C. Cir. 1996)

Teresa AMBROSINI, et al., Appellants,


Jorge LABARRAQUE and The Upjohn Company, Appellees.

No. 95-7270.

United States Court of Appeals, District of Columbia Circuit

December 6, 1996

Argued Sept. 11, 1996.

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[Copyrighted Material Omitted]

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[322 U.S.App.D.C. 21] Appeal from the United States District Court for the District of Columbia (No. 84cv03483).

Barry J. Nace, Washington, DC, argued the cause for appellants, with whom Kenneth J. Chesebro, Cambridge, MA, was on the briefs.

George E. Berry, pro hac vice, argued the cause, for appellees. David M. Covey, Allen M. Hecht, New York City, and Roger W. Heald, Washington, DC, were on the brief. Michael F. Flynn, Jr. and Katherine S. Duyer, Rockville, MD, entered appearances.

Before: EDWARDS, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Dissenting opinion filed by Circuit Judge HENDERSON.

ROGERS, Circuit Judge:

This case appears before this court for the second time after the district court granted summary judgment to appellees, Dr. Jorge Labarraque and the Upjohn Company. Again, we address only the question of the admissibility, not the weight, of the Ambrosinis' expert evidence. The district court initially ruled that the Ambrosinis had failed to present admissible scientific evidence sufficient to create a genuine issue of material fact as to whether the drug Depo-Provera caused the birth defects suffered by Teresa Ambrosini, the daughter of Mr. and Mrs. Ambrosini. This court reversed summary judgment and remanded the case to afford the district court the opportunity to determine whether the opinions expressed by the Ambrosinis' medical experts had an adequate legal foundation to render them admissible under Federal Rule of Evidence 703. Ambrosini v. Labarraque, 966 F.2d 1464, 1469 (D.C.Cir.1992) ("Ambrosini I"). Following the remand, the district court again granted summary judgment to appellees.

The Ambrosinis contend that the district court erred in refusing to accept at "face value" Dr. Allen S. Goldman's uncontroverted testimony that his conclusion concerning specific causation was based upon a valid scientific methodology. They also contend that the district court's ruling was contrary to Ferebee v. Chevron Chemical Co., 736 F.2d 1529, 1535 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), in that appellees' expert used the same diagnostic methodology as Dr. Goldman and differed only in his conclusion as to causation. We conclude that while the district court properly could review the expert's methodology as part of its "gatekeeping" function, Daubert v. Merrell Dow, 509 U.S. 579, 597, 113 S.Ct. 2786, 2798-99, 125 L.Ed.2d 469 (1993), its failure ultimately to distinguish between the threshold question of admissibility and the persuasive weight to be assigned the expert evidence requires reversal and remand.


Teresa Ambrosini was born on October 23, 1967, with severe birth defects, including facial and ear malformations, hearing loss due to middle ear abnormalities, eye and vertebral malformations, and cleft lip and palate. In 1984, Teresa and her parents sued the manufacturers of the drugs Bendectin and Depo-Provera claiming that the drugs, either individually or in combination, caused Teresa's birth defects. The Ambrosinis also named as a defendant Mrs. Ambrosini's physician, Dr. Labarraque, who prescribed the drugs for Mrs. Ambrosini during her pregnancy. The claims against the manufacturer of Bendectin were dismissed in 1989, leaving only the prescribing physician and the Upjohn Company as defendants. 1

Upjohn moved for summary judgment on the ground that no reliable scientific evidence existed to support the contention that Depo-Provera caused Teresa's birth defects. In support of its motion, Upjohn submitted the affidavit of Dr. Joe Leigh Simpson, who discussed three epidemiological studies, as well as other published articles and studies, all indicating that medroxyprogesterone (the generic name for Depo-Provera) did not cause the type of birth defects suffered by Teresa Ambrosini. In response, the Ambrosinis

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[322 U.S.App.D.C. 22] submitted the affidavits of an epidemiologist and a teratologist. 2 In his affidavit, Dr. Brian Leslie Strom stated that after a review of the available epidemiological data, it was his opinion within a reasonable degree of medical certainty, that Depo-Provera is a teratogen that causes birth defects. Dr. Goldman's affidavit stated that it was his opinion to a reasonable degree of medical certainty that Depo-Provera causes the types of birth defects with which Teresa was born, and that her birth defects were a result of the administration of Depo-Provera to her mother. Neither identified specifically the publications, studies, or methodology that formed the basis of his opinion. Upon reviewing the affidavits alone, the district court found the experts' opinions "conclusory and unsupported," noting that their conclusions were contrary to those published in relevant peer-reviewed scientific journals, and that Dr. Strom, who the court found had "reinterpreted" the available epidemiological data, had neither published his interpretation nor subjected it to peer review. Relying on its assessment of the affidavits as well as Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989), the court granted summary judgment for Upjohn.

In reversing the grant of summary judgment, this court explained that Federal Rule of Evidence 705 "eliminates the prior practice of requiring an expert to set out, specifically, the facts and data underlying an opinion before allowing the expert to testify." Ambrosini I, 966 F.2d at 1468-69. The court remanded the case, holding that because the district court had not conducted a sufficient inquiry into the bases of the Ambrosinis' experts' opinions, summary judgment was premature. Id. at 1469. Noting that Federal Rule of Evidence 703 "broadens the acceptable bases for expert testimony by allowing an expert to base an opinion on hearsay and other evidence not admissible in court," id. at 1466, the court observed that "[a] court must know the basis for an expert's opinion before it can determine that the basis is not of a type reasonably relied on by experts in the field." Id. at 1469. The court stated that Rule 703 limits judicial inquiry into the basis for the expert's opinion, as distinct from the expert's conclusion. " 'As long as the basic methodology employed to reach such a conclusion is sound, [the] law does not preclude recovery until a "statistically significant" number of people have been injured or until science has had the time and resources to complete sophisticated laboratory studies of the chemical.' " Id. at 1467 (quoting Ferebee, 736 F.2d at 1536).

On remand, the district court issued orders to show cause requiring the Ambrosinis' experts to produce the articles and other data that formed the basis of their opinions, and then held an evidentiary hearing. Thereafter, the district court ruled that the testimony of Dr. Goldman was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that the testimony of Dr. Brian Leslie Strom, even if admissible, was insufficient to create a genuine issue of material fact because it did not address whether the drug had caused Teresa's birth defects.


Our review of the grant of summary judgment is de novo. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Summary judgment should be granted only when, viewing the evidence in the light most favorable to the non-movant, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Anderson, 477 U.S. at 250, 255, 106 S.Ct. at 2511, 2513-14; Tao, 27 F.3d at 638. The court noted in the first appeal, moreover, that "[w]hen a court denies the right to have a jury decide a disputed issue, especially one of a scientific nature, its reasons for doing so must be strong." Ambrosini I, 966 F.2d at 1469.

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[322 U.S.App.D.C. 23] Federal Rule of Evidence 702 provides that "[i]f scientific ... knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify ... in the form of an opinion or otherwise." 3 Rule 703 explains that if "[t]he facts or data in the particular case upon which an expert bases an opinion or inference" are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." 4 Following our remand in Ambrosini I, the Supreme Court decided Daubert. In that case, the Supreme Court instructed that rigid adherence to the requirement announced in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), that expert testimony be based on methods "generally accept[ed]" in the relevant scientific community, "would be at odds with the 'liberal thrust' of the Federal Rules and their 'general approach of relaxing the traditional barriers to "opinion" testimony.' " Daubert, 509 U.S. at 588, 113 S.Ct. at 2794 (citations omitted). In instructing that Frye's "general acceptance" test had been superseded by the adoption of the Federal Rules of Evidence, 5 and in particular, Rule 702, the Supreme Court announced a new standard in Daubert. 509 U.S. at 588, 113 S.Ct. at 2794.

The Daubert standard involves a two-prong analysis that centers on evidentiary reliability and relevancy: the district...

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