Ealy v. Richardson-Merrell, Inc.

• Decision Date: 09 March 1990
• Docket Number: INC,Nos. 87-7214,RICHARDSON-MERREL,87-7219,s. 87-7214
• Citation: 897 F.2d 1159
• Parties: , 58 USLW 2540, 29 Fed. R. Evid. Serv. 897, Prod.Liab.Rep.(CCH)P 12,400 Sekou EALY, et al., Appellees, v., Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1159

897 F.2d 1159

283 U.S.App.D.C. 137, 58 USLW 2540,

29 Fed. R. Evid. Serv. 897,

Prod.Liab.Rep.(CCH)P 12,400

Sekou EALY, et al., Appellees, v. RICHARDSON-MERRELL, INC., Appellant.

Nos. 87-7214, 87-7219.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 8, 1990.

Decided March 9, 1990.

Appeal from the United States District Court for the District of Columbia.

Michael Nussbaum, with whom James P. Davenport, Lori E. Fox, and Mark L. Austrian, Washington, D.C., were on the brief for appellant in 87-7214 and appellee in 87-7219. Frederick D. Baker also entered an appearance for Richardson-Merrell, Inc.

Barry J. Nace, with whom Irving R.M. Panzer, Washington, D.C., was on the brief, for appellees in 89-7219 and cross-appellants in 87-7214. John J. Sellinger, Washington, D.C., also entered an appearance for Sekou Ealy, et al.

Before MIKVA, EDWARDS, and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This appeal arises from a products liability action seeking recovery for a child's birth defects allegedly caused by the mother's use of Bendectin during her pregnancy. For over twenty-five years (1957-1983), Bendectin was a popular medication for morning sickness experienced during early pregnancy. In 1983, the manufacturer of Bendectin, Richardson-Merrell, Inc. ("Merrell"), voluntarily took the drug off the market although the Food and Drug Administration never rescinded approval of the drug. Bendectin has been studied extensively to determine whether it is a human teratogen, i.e. capable of causing birth defects in humans. To date, no published human population or epidemiological study has concluded that there is a statistically significant association between Bendectin and limb reduction defects of the type at issue in this case.

Merrell, the defendant-appellant in this action, appeals a jury's award of $20 million in compensatory damages for plaintiff-appellees, the Ealys, and appeals the trial court's order denying its motions for judgment n.o.v. and denying its motions for a new trial. The Ealys cross-appeal the trial court's order granting a remittitur of the jury's $75 million punitive damage award. Merrell argues that this court's decision in Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989) ("Richardson ") requires reversal of the compensatory award. In addition, Merrell contends that the compensatory award is excessive and violates due process; and that numerous procedural errors regarding expert testimony and other evidence warrant a new trial. The Ealys counter each of these assertions, arguing, inter alia, that the Erie doctrine requires that this court follow the D.C. Court of Appeals decision in Oxendine v. Richardson-Merrell, Inc., 506 A.2d 1100 (D.C.1986) ("Oxendine I ").

We find that this case is squarely within the binding rule articulated in Richardson: an expert opinion that Bendectin is a human teratogen which caused the plaintiff's birth defects is without scientific foundation under Federal Rule of Evidence 703 in the face of "a wealth of published epidemiological data" to the contrary. 857 F.2d at 832. Accordingly such expert opinion is inadmissible. Because we discern no material difference between the evidence presented in Richardson and that presented in this case, we reverse the trial court's denial of the motion for judgment n.o.v. Contrary to the Ealys' assertions, neither this court nor the Richardson court deviated from the local tort law expressed in Oxendine I. Our decision in Richardson turned on the admissibility of expert testimony--a procedural matter which does not implicate the principles underlying Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It is also significant to a point of distinction that fewer scientific studies were introduced by the parties in Oxendine I than in either this case or the Richardson case.

Because we reverse on the issue of liability, we need not reach any of the other issues raised on appeal or cross-appeal.

I. BACKGROUND

Sekou Ealy was born in 1979 with congenital birth defects of his hands and arms. He has three fingers on one hand and four on the other and no thumbs. His arms are underdeveloped and locked at the elbows. Although he is otherwise a normal child, he has undergone weekly psychiatric therapy to address his mental fixation that his parents cut off his fingers to punish him for being naughty. It is undisputed that Sekou's mother took Bendectin during her pregnancy for morning sickness and that extensive evaluation has failed to disclose a clear cause for his malformations.

At trial, the plaintiffs argued that inferences drawn from analysis of Bendectin's chemical composition, in vitro studies of the effects of Bendectin components on animal cells in test tube cultures, in vivo data from studies conducted on animals given Bendectin, and unpublished reinterpretations of the epidemiological literature are sufficient foundation to support an opinion that Bendectin is a human teratogen. This was precisely the theory of proof used by the plaintiffs in Richardson. In developing their case, the Ealys introduced the testimony of eight expert witnesses, only one of whom did not testify in Richardson. This single witness, Dr. William McBride, was also the only expert witness whose testimony, introduced by deposition, was based on published studies which he himself had conducted. Based on his study of the effects of doxylamine succinate, an element of Bendectin, on rabbits and marmosets, Dr. McBride opined that Bendectin is a human teratogen.

After hearing the expert testimony, the jury reached a verdict for the plaintiff, awarding $20 million in compensatory damages and $75 million in punitive damages. The trial court rejected the defendant's argument, on motion for judgment n.o.v., that the verdict was without scientific foundation, concluding instead that there was "substantial conflicting evidence" about which reasonable people could differ. The court also noted that two other juries in similar Bendectin cases tried in the district court had reached verdicts for the plaintiffs. One of those verdicts was later set aside in Richardson and the other is pending decision on a post-trial motion to set aside the verdict on the authority of Richardson. The trial court upheld the compensatory damages award, finding that the $20 million figure did not "shock the conscience" of the court. The court set aside the punitive damages award because there was no evidence of willful disregard or outrageous conduct by the manufacturer.

II. DISCUSSION

A. Standard of Review

In Richardson, this court affirmed a judgment n.o.v. in favor of Merrell, holding that an expert opinion that Bendectin caused a child's limb reduction defects was inadmissible based on the record developed in that case. 857 F.2d at 832. Appellant Merrell now argues that the Richardson decision provides a binding legal precedent that requires reversal of the trial court's denial of its motion for judgment n.o.v. in the case sub judice. The standard of review of the trial court's decisions on motions for judgment n.o.v. is de novo. As with motions for directed verdicts, the reviewing court asks the same question asked by the trial court: whether, viewing the evidence in the light most favorable to the plaintiff, and giving him every reasonable inference, the evidence is so one-sided that no reasonable juror could find on the admissible evidence that Bendectin caused the plaintiff's birth defects. Richardson, 857 F.2d at 827-28; McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 640-41 (D.C.Cir.1988). Any conflicts in evidence must be resolved in favor of the plaintiff who was the prevailing party below. McNeal, 836 F.2d at 641.

B. The Richardson Decision

The Richardson court concluded that there was not sufficient evidence in the record on which a jury could base a verdict for the plaintiff because all of the plaintiff's expert testimony--the only relevant evidence on the causation issue--was inadmissible. Relying on Federal Rule of Evidence 703, the court ruled, in essence, that the issue of scientific causation should not have been left to the jury because Dr. Alan Done's expert opinion that Bendectin caused the plaintiff's birth defects lacked an adequate scientific foundation. Dr. Done served as the lead expert for the plaintiffs in both Richardson and this case. The Richardson court's treatment of Dr. Done's testimony subsumed that of the other experts presented on the Richardsons' behalf. 857 F.2d at 829 n. 38.

Rule 703 governs the "Bases of Opinion Testimony by Experts," and requires that the grounds relied upon by an expert be of "a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed.R.Evid. 703. The Richardson court noted that Dr. Done had predicated his opinion on four types of data. After canvassing the probative value of each type of data, the court concluded:

These three types of studies then--chemical, in vitro, and in vivo--cannot furnish a sufficient foundation for a conclusion that Bendectin caused the birth defects at issue in this case. Studies of this kind, singly or in combination, are not capable of proving causation in human beings in the face of the overwhelming body of contradictory epidemiological evidence. Perhaps mindful of this, the last type of evidence considered by Dr. Done consisted of the epidemiological studies. When such studies are available and relevant, and particularly when they are numerous and span a significant period of time, they assume a very important role in determinations of questions of causation.

857 F.2d at 830 (emphasis added). Every epidemiological study introduced in Richardson had concluded that there was not a statistically significant relationship...