Brown by Brown v. Syntex Laboratories, Inc.

• Decision Date: 26 February 1985
• Docket Number: No. 84-2018,84-2018
• Citation: 755 F.2d 668
• Parties: , 17 Fed. R. Evid. Serv. 587 Melissa Suzanne BROWN, a minor by her next friend, Martin BROWN, Martin Brown and Susan Brown, Appellants, v. SYNTEX LABORATORIES, INC. and Syntex Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 668

755 F.2d 668

1 Fed.R.Serv.3d 28, 17 Fed. R. Evid. Serv. 587

Melissa Suzanne BROWN, a minor by her next friend, Martin

BROWN, Martin Brown and Susan Brown, Appellants, v. SYNTEX LABORATORIES, INC. and Syntex Corporation, Appellees.

No. 84-2018.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 16, 1984.

Decided Feb. 26, 1985.

David A. Taylor, Kansas City, Mo., for appellants.

Thomas C. Walsh, St. Louis, Mo., for appellees.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Melissa Suzanne Brown and her parents appeal an order of the district court ¹ entering judgment against them notwithstanding the verdict they obtained against Syntex Laboratories, Inc. ² The Browns had claimed Melissa's speech and memory were impaired by her use of a chloride-deficient baby formula, Neo-Mull-Soy, manufactured by Syntex. After a jury awarded Melissa $350,000 and her parents $65,000, the district court granted Syntex Laboratories a new trial. Upon the Browns' application for a writ of mandamus, a panel of this court ordered that the district court enter judgment notwithstanding the verdict, thus making an appeal to this court possible. In its second order, the district court accordingly entered judgment and also conditionally granted a new trial. It is this order from which the Browns appeal. We reverse the compelled entry of judgment notwithstanding the verdict ³ but affirm the conditional grant of a new trial.

Melissa Suzanne Brown was born January 2, 1979. Three days later she was started on the baby formula Neo-Mull-Soy, her primary source of nutrition for the first six months of her life. Since age two she has been receiving treatment for various speech and memory disabilities. The Browns sued Syntex Laboratories and Syntex Corporation, claiming that Melissa's use of the Neo-Mull-Soy, which was deficient in chloride, caused her speech and memory problems. The case was tried before a jury in September 1983, and most of the issues in this appeal surround the testimony there of Dr. Alan Organ, a pediatrician who testified that the Neo-Mull-Soy caused Melissa's condition. ⁴ The district court initially denied a motion in limine to exclude Dr. Organ's testimony. However, when Dr. Organ took the stand, after an extensive voir dire, the district court found his testimony was lacking in foundation, was contrary to his earlier deposition testimony, and was therefore inadmissible. Nonetheless, when Dr. Organ was recalled to the stand two days later, after he stated that his review of medical journal articles supported the conclusion he was prepared to give, his testimony was admitted.

After the jury returned the verdicts in favor of Melissa and her parents, Syntex filed motions for judgment notwithstanding the verdict and for a new trial because the verdict was against the weight of the evidence. The district court, ruling that a submissible case had been made, first denied the motion for judgment notwithstanding the verdict. It then considered the testimony of Dr. Organ, finding that his credibility was weakened by "substantial inconsistencies between his testimony before and at trial and simply within his testimony at trial" and that "while Organ may some day be proved correct, the weight of the evidence suggests that such a conclusion cannot be made to a reasonable (believable) medical certainty absent further scientific research." Brown v. Syntex Laboratories, No. 81-0256-CV-W-8, slip op. at 6, 10 (W.D.Mo. July 12, 1984). It therefore determined that the verdict was against the weight of the evidence and granted the motion for a new trial.

The Browns then filed a petition for a writ of mandamus, arguing that the practical effect of the district court's order was to grant a judgment notwithstanding the verdict. A panel of this court ordered the district court to enter judgment notwithstanding the verdict, thereby making an immediate appeal possible. In re Brown, 745 F.2d 63 (8th Cir.1984). The district court promptly complied, entering the judgment for defendants, conditionally granting a new trial, and again explaining the basis for its ruling. ⁵ On this appeal, the Browns challenge both the grant of judgment notwithstanding the verdict and the conditional grant of a new trial.

I.

We first determine if the district court's order entering judgment notwithstanding the verdict was proper. Such an order may be entered if the court determines that the evidence is not sufficient to create an issue of fact for the jury. On numerous occasions we have articulated the standard for evaluating such sufficiency: all the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the nonmoving party. SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1192 (8th Cir.1984); Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983), reh'g denied, 728 F.2d 976 (8th Cir.1984) (per curiam). ⁶ Since Dr. Organ testified that the use of Neo-Mull-Soy caused Melissa's condition, there was support at trial for the Browns' position. Thus, if Dr. Organ's testimony was properly admitted, the standard was not met, and the judgment notwithstanding the verdict was improperly issued.

The order for j.n.o.v. was issued, of course, at the direction of a panel of this court, which determined that "the practical effect of * * * [the district court's first order for a new trial] was to grant a judgment notwithstanding the verdict." In re Brown, slip op. at 2. The panel's order directing j.n.o.v. likely was based on the district court's statement in its first order that "while Organ may some day be proved correct, the weight of the evidence suggests that such a conclusion cannot be made to a reasonable (believable) medical certainty absent further scientific research." ⁷ Brown, slip op. at 10 (July 12, 1984). If such a conclusion could not be made, it follows that Dr. Organ's testimony was inadmissible and, since he was the sole expert to testify to the requisite causation, that no case existed to be submitted to the jury. Thus, if such a conclusion could not be made, the district court would have had no choice but to grant a j.n.o.v.

The district court, however, made the statement while determining if a new trial should be granted because the verdict was against the weight of the evidence. In Firemen's Fund Insurance Co. v. Aalco Wrecking Co., 466 F.2d 179, 186-87 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973), this court cautioned that such motions should be granted only where there is a miscarriage of justice. The district court here recognized that such a standard governed its considerations and performed its evaluation of the credibility of the evidence "in the interest of justice." Brown, slip op. at 3 (July 12, 1984). It was in this context that the court found that the weight of the evidence suggested the conclusion could not be made to a reasonable medical certainty. The statement must be confined to this context, for in the portion of the original order discussing issuance of a j.n.o.v., the district court clearly stated:

In this case, a doctor testified to a medical certainty that, in his opinion, Neo Mull Soy caused Melissa's speech and memory disorders. Without assessing the credibility of this witness and the weight of the evidence which contradicts his conclusions, the court cannot find that there was "but one conclusion as to the verdict that reasonable men could have reached" and, therefore cannot enter judgment in favor of defendant.

Brown, slip op. at 2 (July 12, 1984).

Thus, the compelled order granting j.n.o.v. was not justified on the merits and the court's reasoning in its first order was correct, unless the court abused its discretion in admitting the testimony of Dr. Organ or in denying Syntex's post-trial motion that the testimony be ruled inadmissible. We are not prepared, however, to find such an abuse of discretion.

"[T]he trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous." Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962) (emphasis added), quoted in United States v. Vik, 655 F.2d 878, 880 (8th Cir.1981). To disturb a ruling on such admissibility, there must be a "clear showing of abuse of discretion" as, for example, where "a seemingly qualified expert * * * exceed[s] the permissible bounds of opinion testimony and enter[s] into the realm of utter speculation and conjecture." Jones v. Goodlove, 334 F.2d 90, 94 (8th Cir.1964) (emphasis added).

In urging that Dr. Organ's testimony entered this realm, Syntex relies heavily on Atchison, Topeka & Santa Fe Railway Co. v. Hamilton Brothers, Inc., 192 F.2d 817 (8th Cir.1951), where the court found an expert's opinion not to rise to the level of substantial evidence and therefore reversed and ordered entry of a directed verdict. ⁸ However, in the present case, unlike that in Hamilton Brothers, there is in evidence no gross, obvious, physical near-impossibility that contradicts Dr. Organ's testimony. Dr. Organ's opinion was based on the fact of Melissa's consumption of the Neo-Mull-Soy low in chloride, an electrolyte analysis of her blood that showed "low normal" chloride, the presence of developmental delay noticed in other chloride-deficient children, the absence of other factors that would have accounted for Melissa's speech and memory problems, and a review of the relevant literature that suggested such problems were associated with chloride-deficient children. While this testimony was not without its weaknesses, we cannot conclude that it was so utterly speculative that the district court abused its discretion in admitting it. Therefore, we must reverse the compelled order of the district court granting judgment notwithstanding the...