Brock v. Merrell Dow Pharmaceuticals, Inc.

• Citation: 874 F.2d 307
• Decision Date: 06 June 1989
• Docket Number: No. 88-2311,88-2311
• Parties: , Prod.Liab.Rep.(CCH)P 12,157 Mr. and Mrs. Floyd BROCK, individually and as next friend of Rachel Brock, a minor, Plaintiffs-Appellees, v. MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 307

874 F.2d 307

57 USLW 2742, Prod.Liab.Rep.(CCH)P 12,157

Mr. and Mrs. Floyd BROCK, individually and as next friend of

Rachel Brock, a minor, Plaintiffs-Appellees, v. MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellant.

No. 88-2311.

United States Court of Appeals,

Fifth Circuit.

June 6, 1989.

O.J. Weber, Mehaffey, Weber, Keigh & Gonsoulin, Beaumont, Tex., Robert M. Dato, Santa Monica, Cal., Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, P.C., Tyler, Tex., for defendant-appellant.

Thomas H. Bleakley, Detroit, Mich., W. James Kronzer, Richard Warren Mithoff, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARZA, JOLLY, and JONES, Circuit Judges.

GARZA, Circuit Judge:

Mr. & Mrs. Floyd Brock filed suit in federal district court on behalf of their minor child, Rachel Brock, to recover damages for birth defects that allegedly resulted from Mrs. Brock's ingestion during her pregnancy of the anti-nausea drug Bendectin, which is manufactured by Merrell-Dow Pharmaceuticals, Inc. ("Merrell-Dow"). The Brocks obtained a jury verdict in the amount of $550,000 against Merrell-Dow, representing $240,000 in compensatory damages and $310,000 in punitive damages. Merrell-Dow appeals that verdict here, arguing that the Brocks did not present sufficient evidence to allow the jury to conclude that Bendectin caused Rachel Brock's birth defect. After reviewing the record and decisions of other courts confronted with similar suits regarding Bendectin, we hold that Merrell-Dow was entitled to judgment notwithstanding the verdict, and the judgment in favor of the Brocks is therefore reversed and the case will be dismissed.

Background

Mrs. Brock conceived Rachel Brock on or around July 2, 1981. On July 28, 1981, Mrs. Brock began to experience morning sickness, and she began to take Bendectin, a prescription drug manufactured by Defendant, Merrell-Dow. ¹ Rachel Brock was born on March 19, 1982 with a limb reduction defect known as Poland's Syndrome, which is recognized by a shortening or absence of fingers with a decrease in the corresponding pectoralis muscle on one side.

Mr. and Mrs. Brock filed a diversity suit against Merrell-Dow on behalf of their daughter in the U.S. District Court for the Eastern District of Texas. The complaint alleged theories of improper inspection, design defect, and failure to warn. Causation was a hotly contested issue, with both sides presenting expert testimony and studies regarding the possible teratogenicity ² of Bendectin. At the end of trial, Merrell-Dow moved for a directed verdict, arguing that there was no credible evidence tending to show that Bendectin causes birth defects. Merrell-Dow's motion was denied, and the issue of whether Bendectin caused Rachel Brock's birth defect was given to the jury. The jury found for the Brocks, and awarded both compensatory and punitive damages. Merrell-Dow then moved for judgment notwithstanding the verdict, and that motion was denied. Merrell-Dow here appeals the denial of its motions for directed verdict and for judgment notwithstanding the verdict. ³

Standard for Determining Sufficiency of the Evidence

The standard for granting a judgment notwithstanding the verdict is the same as that governing rulings on directed verdicts: judgment notwithstanding the verdict is proper only when there can be only one reasonable conclusion drawn from the evidence. Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218, 224 (5th Cir.1968). It is generally accepted that the court, in determining whether the evidence is sufficient to present a question for the jury, is not free to weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of the facts for that of the jury. See Glazer v. Glazer, 374 F.2d 390, 400 (5th Cir.1967), cert. denied 389 U.S. 831, 88 S.Ct. 100, 19 L.Ed.2d 90; Alman Bros. Farms & Feed Mill, Inc. v. Diamond Lab, Inc., 437 F.2d 1295, 1298 (5th Cir.1971); Cardwell v. U.S., 186 F.2d 382 (1951); see generally 9 Wright & Miller, Federal Practice and Procedure Sec. 2524 (1971). Viewing the evidence in the light most favorable to the party against whom the motion is made, the court must give that party the benefit of all reasonable inferences from the evidence. Boeing Co. v. Shipman, 411 F.2d 365, 375 (1969).

These general and abstract formulations lose much of their usefulness, however, when we attempt to apply them to the concrete factual situation at hand. One certainly might infer from the evidence in the case that Bendectin causes birth defects, and further that Bendectin caused Rachel Brock's limb reduction defect--in fact, the jury concluded that this very thing occurred. However, the court must determine whether this is a reasonable inference to be drawn from the evidence presented, and the formulae provide us with little guidance as to what constitutes a reasonable, as opposed to unreasonable, inference that a jury could draw from the evidence. ⁴ Ultimately, the "correctness" of our decision that there was insufficient evidence presented by plaintiff on the issue of whether Bendectin caused Rachel Brock's limb reduction defect to enable a jury to draw a reasonable inference may be just a matter of opinion, but hopefully the reasoning below will persuade others of the insights of our perspective.

This case is one of a series of many cases filed against Merrell-Dow by parents of children with birth defects allegedly caused by the ingestion of Bendectin during pregnancy. Academic commentators have dubbed this case and others like it "mass toxic torts." ⁵ This represents a growing realization among academics, lawyers, and judges that cases such as this present special problems and challenges to traditional ideas regarding the role of the jury as a decisionmaker.

The first problem is that there is often no consensus in the medical community regarding whether a given substance is teratogenic; this is the case with Bendectin. Moreover, while we now recognize some of the many factors which can cause birth defects, medical science is now unable, and will undoubtedly remain unable for the foreseeable future, to trace a known birth defect back to its precipitating cause. ⁶ The second problem, in addition to the problem of unknowability, is that juries are asked to resolve these questions, upon which even our brightest medical minds disagree, in order to resolve the case at hand and decide whether the plaintiff is entitled to recovery, and in so doing must necessarily resort to speculation.

Under the traditional approach to scientific evidence, courts would not peer beneath the reasoning of medical experts to question their reasoning. ⁷ Confronted, as we now are, with difficult medical questions, courts must critically evaluate the reasoning process by which the experts connect data to their conclusions in order for courts to consistently and rationally resolve the disputes before them. Moreover, in mass torts the same issue is often presented over and over to juries in different cases, and the juries often split both ways on the issue. ⁸ The effect of this is to create a state of uncertainty among manufacturers contemplating the research and development of new, and potentially lifesaving drugs. ⁹ Appellate courts, if they take the lead in resolving those questions upon which juries will go both ways, can reduce some of the uncertainty which can tend to produce a sub-optimal amount of new drug development.

We are not without precedent in our approach to this problem. The case before us parallels in many respects the recently conducted Agent Orange Litigation. ¹⁰ In those cases, plaintiffs attempted to prove that exposure to Agent Orange, a defoliant used during the Vietnam War, had caused them adverse health effects. Judge Weinstein granted summary judgment against opt-out plaintiffs on the basis that they had been unable to prove that exposure to low levels of dioxin caused their health problems. Although plaintiffs had provided the affidavits of experts indicating that exposure to Agent Orange had caused their health problems, the court attacked the reasoning of the experts and found it to be inadequate. ¹¹

Courts have not always been so willing to analyze the reasoning employed by experts to reach their conclusions. In Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C.Cir.1984), cert. denied 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984), the District of Columbia Circuit considered the question of whether a fatal lung disease contracted by an agricultural worker was caused by his exposure to paraquat, a defoliant. Plaintiff presented two experts who expressed the opinion that paraquat had caused his illness, even though they admitted that cases like the plaintiff's were rare. The court denied defendant's motion for judgment notwithstanding the verdict, and in so holding, noted that "[j]udges ... have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony." Id. at 1534.

The District of Columbia Circuit retreated from this approach recently when it considered, in a Bendectin case, the very same issue we are addressing here. In Richardson by Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), the D.C. Circuit affirmed the lower court's grant of judgment notwithstanding the verdict to defendant. In its discussion of its approach to resolving the conflicting expert testimony in favor of defendant, the court opined that "[e]xpert witnesses are indispensible in a case such as this. But that is not to say that the court's hands are inexorably tied, or that it must accept uncritically...