Bendectin Litigation, In re

• Decision Date: 30 August 1988
• Docket Number: Nos. 85-3858,85-3876 and 85-3877,s. 85-3858
• Citation: 857 F.2d 290
• Parties: , 11 Fed.R.Serv.3d 1267 In re BENDECTIN LITIGATION. Sarah Ann HOFFMAN; et al. (85-3858), Elizabeth Ann Davis; et al. (85-3876), Shane Ross Wood; et al. (85-3877), Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., (formerly known as) Richardson-Merrell, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 290

857 F.2d 290

57 USLW 2163, 11 Fed.R.Serv.3d 1267

In re BENDECTIN LITIGATION.

Sarah Ann HOFFMAN; et al. (85-3858), Elizabeth Ann Davis;

et al. (85-3876), Shane Ross Wood; et al.

(85-3877), Plaintiffs-Appellants,

v.

MERRELL DOW PHARMACEUTICALS, INC., (formerly known as)

Richardson-Merrell, Inc., Defendant-Appellee.

Nos. 85-3858, 85-3876 and 85-3877.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 9, 1986.

Decided Aug. 30, 1988.

Richard W. Langerman, Langerman, Begam, Lewis & Marks, Phoenix, Ariz., for Davis.

Raymond Henke (argued), James G. Butler, Butler, Dan, Allis & Rebach, Los Angeles, for Wood.

Arthur R. Miller, Professor at Harvard Law School, Cambridge, Mass., Stanley M. Chesley, Waite, Schneider, Bayles & Chesley, Cincinnati, Ohio, Allen T. Eaton, Washington, D.C., George A. Kokus, Miami, Fla., and Thomas H. Bleakley, Bleakley & McKeen, Detroit, Mich., for Hoffman.

Frank C. Woodside, III (argued), Dinsmore & Shohl, Cincinnati, Ohio, Vincent Stamp, for defendant-appellee.

Before ENGEL, Chief Judge, ^* and JONES and NELSON, Circuit Judges.

ENGEL, Chief Judge.

These actions were brought on behalf of children with birth defects against Merrell Dow Pharmaceuticals, Inc., alleging that their birth defects were caused by their mothers' ingestion during pregnancy of defendant's anti-nausea drug Bendectin. Immediately involved are eleven hundred eighty claims in approximately eight hundred forty-four multidistrict cases. ¹ These cases represent only a part of the Bendectin cases which have been brought in numerous federal and state courts around the nation. ² Although there are some differences After twenty-two days of trial on the sole question of causation, the jury answered the following interrogatory in the negative: "Have the plaintiffs established by a preponderance of the evidence that ingestion of Bendectin at therapeutic doses during the period of fetal organogenesis is a proximate cause of human birth defects?" In re Richardson-Merrell, Inc., Bendectin Products, 624 F.Supp. 1212, 1269 (S.D.Ohio 1985). Had the jury answered this question in the affirmative, it then would have answered a second question concerning the particular categories of birth defects that Bendectin caused when administered at therapeutic doses: musculoskceletal defects, central nervous system defects, heart and circulatory defects, head defects, respiratory defects, gastrointestinal defects, genitourinary defects, and death. Id. Accordingly, the district judge entered judgment for defendant.

among the complaints, most are virtually identical, requesting relief on the grounds of negligence, breach of warranty, strict liability, fraud, and gross negligence, and asserting a rebuttable presumption of negligence per se for defendant's alleged violation of the misbranding provisions of the federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. Sec. 301 et seq.

On appeal, plaintiffs argue that the federal district court did not have jurisdiction over actions brought by Ohio plaintiffs, actions originally filed in state courts, or actions originally filed in the federal district courts in any of the fifty states and later transferred to the United States District Court for the Southern District of Ohio. Other issues raised on appeal concern various aspects of the trial, including certain evidentiary rulings and the district court's decision to create the Plaintiffs' Lead Counsel Committee, to prevent withdrawal from the common issues trial while permitting new transfers into the case, to apply Ohio law to all plaintiffs, to trifurcate on the causation question, and to exclude visibly deformed plaintiffs.

We direct the dismissal without prejudice of those thirteen actions brought by Ohio citizens in federal court in which Merrell Dow has conceded that no federal question jurisdiction was invoked and has further conceded that the district court was therefore without jurisdiction to render judgment on the merits against those plaintiffs. ³ As to all other suits brought by Ohio citizens in federal courts and subject to this appeal, we hold that the district court did have federal question jurisdiction and thus the adverse jury verdict is binding on those plaintiffs. Finally, we do not disturb the district court's post-trial order remanding all cases brought by Ohio citizens in state courts back to the courts from which they were removed. In all other respects, we affirm.

I. BACKGROUND OF THE CASE

The unusually large number of individual cases involved here found their way to the United States District Court for the Southern District of Ohio in a variety of ways. Eight hundred thirty-four of these claims were filed either in the Northern or Southern Districts of Ohio, while seventy-three claims, originally filed in Ohio state courts, were removed to Ohio federal courts. Only twenty-nine of the cases were initially filed in Ohio by Ohio citizens. The remainder included sixty-two plaintiffs from California, five from Texas, six from Pennsylvania, and sixty-six from other states or foreign countries. Two hundred seventy-three claims were filed or removed to federal district courts outside Ohio and were transferred to the Southern District of Ohio by the Judicial Panel on Multidistrict The court designated a five-member Plaintiffs' Lead Counsel Committee to act as the counsel for all plaintiffs. After the completion of discovery, on November 16, 1983, the district court consolidated under Rule 42(a) of the Federal Rules of Civil Procedure all Bendectin cases originally filed in the Southern District of Ohio or transferred in MDL 486 from the Northern District of Ohio and set those cases for trial beginning June 4, 1984 on all common issues of liability. The original decision was to bifurcate the trial, and if the plaintiffs were successful in obtaining a verdict finding liability, the court would schedule individual damages trials. While consolidation for trial was mandated for all cases pending in federal court in Ohio, the trial judge also permitted consolidation upon the liability issues for any case which had been transferred to the Southern District of Ohio under MDL 486. 28 U.S.C. Sec. 1404. Those cases would be returned to the originating district if the verdict in the first portion of the bifurcated trial was for the plaintiffs. The district judge indicated that under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), all claims which had been originally brought or removed to federal court in Ohio would necessarily be governed by Ohio law, and that plaintiffs who had originally filed in other districts and who voluntarily chose to participate in the common issues trial would consent to application of the law of Ohio by so agreeing to participate. A number of plaintiffs chose to leave the consolidated proceedings after the completion of discovery and this order, and the district court accordingly returned those suits to the district in which they had been originally filed. ⁴

Litigation. In addition to these cases, the Judicial Panel on Multidistrict Litigation referred, pursuant to 28 U.S.C. Sec. 1407, forty-seven cases under MDL 486 for consolidated pretrial discovery. Between 1982 and the completion of the trial in 1985, 582 additional cases were referred by the panel and 557 cases were filed in the Southern District of Ohio.

In this order, the judge continued to allow additional plaintiffs to "opt in" to the trial, whether they had filed originally in the Southern District of Ohio or had filed in other districts and wished to have their cases transferred pursuant to 28 U.S.C. Sec. 1404, so that by the date opt-ins were barred on March 1, 1985, 557 cases originating in the Southern District of Ohio and 261 transferred cases were subject to the jury decision. A total of 368 cases assigned by the Judicial Panel on Multidistrict Litigation did not go to trial, either because of failure to opt in or because they were otherwise disposed of. One set of plaintiffs who opted in after the district court ordered a bifurcated trial on the issues of liability and damages were the Davis plaintiffs, who had originally filed in Arizona federal court, and who opted into the joint liability trial on February 1, 1984.

The district court asked counsel to stipulate as to all common issues of liability that could be tried during the first phase of the trial. Defendant suggested a trial only on the issue of whether Bendectin was an unreasonably dangerous product imposing upon Merrell Dow a duty to warn about such dangers. It argued that substantive law differences among the various jurisdictions represented by plaintiffs prevented consolidation as to any other issue, regardless of whether the cases had been originally filed in Ohio or had been subsequently transferred there. The plaintiffs requested a trial of all common interrelated issues of law and fact, including whether Bendectin increased the risk of birth defects in the children of pregnant mothers who ingested the drug. They also indicated that the liability issues were inextricably interwoven and needed to be tried together with causation. Because the parties could not agree which issues should be tried during the first phase of trial, the court itself decided that the common issues to be tried beginning on June 11, 1984, would be whether: (1) taken as prescribed, Bendectin After a jury had been selected for the June 1984 trial, settlement negotiations between the parties reached a successful conclusion. The district judge certified a class for purposes of settlement. However, on appeal, another panel of this court held that class certification was inappropriate and issued a writ of mandamus vacating the district court's order. In re Bendectin Product Liability Litigation, 749 F.2d 300 (6th Cir.1984).

caused any of a list of birth defects; (2) Bendectin was unreasonably dangerous as defined by Ohio courts; and (3) Merrell Dow...