951 F.2d 1128 (9th Cir. 1991), 90-55397, Daubert v. Merrell Dow Pharmaceuticals, Inc.

Docket Nº:90-55397.
Citation:951 F.2d 1128
Party Name:William DAUBERT; Joyce Daubert, individually and as Guardians Ad Litem for Jason Daubert, a minor; Anita De Young, individually, and As Guardian Ad Litem for Eric Schuller, Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., a Delaware corporation, Defendant-Appellee.
Case Date:December 20, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1128

951 F.2d 1128 (9th Cir. 1991)

William DAUBERT; Joyce Daubert, individually and as

Guardians Ad Litem for Jason Daubert, a minor;

Anita De Young, individually, and As

Guardian Ad Litem for Eric Schuller,

Plaintiffs-Appellants,

v.

MERRELL DOW PHARMACEUTICALS, INC., a Delaware corporation,

Defendant-Appellee.

No. 90-55397.

United States Court of Appeals, Ninth Circuit

December 20, 1991

Argued and Submitted April 5, 1991.

Page 1129

Mary F. Gillick, Luce, Forward, Hamilton & Scripps, San Diego, Cal., Barry Nace, Paulson, Nace, Norwind & Sellinger, Washington, D.C., for plaintiffs-appellants.

Robert L. Dickson, George E. Berry, Hall R. Marston and Pamela J. Yates, Dickson, Carlson & Campillo, Santa Monica, Cal., for defendant-appellee.

Jeffrey Robert White, Washington, D.C., for amicus curiae.

Appeal from the United States District Court for the Southern District of California.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE, [*] District Judge.

KOZINSKI, Circuit Judge.

Plaintiffs Jason Daubert and Eric Schuller suffer from limb reduction birth defects. They allege that these defects resulted from the fact that their mothers used Bendectin, a prescription anti-nausea drug, during pregnancy. The plaintiffs seek damages from the drug's manufacturer, defendant Merrell Dow Pharmaceuticals.

Plaintiffs' evidence of causation consisted primarily of expert opinion based on in vitro and in vivo animal tests, chemical structure analyses and the reanalysis of epidemiological studies. Among the contrary evidence proffered by Merrell Dow was the affidavit of a physician and epidemiologist who reviewed all of the available literature on the subject, which included more than 30 published studies involving over 130,000 patients, and concluded that no published epidemiological study had demonstrated a statistically significant association between Bendectin and birth defects. Plaintiffs do not challenge this summary of the published record.

The district court determined that plaintiffs could not meet their burden of proving that Bendectin caused Jason's and Eric's birth defects and granted Merrell Dow's motion for summary judgment. Daubert v. Merrell Dow Pharmaceuticals, Inc., 727 F.Supp. 570 (S.D.Cal.1989).

A. Expert opinion based on a scientific technique "is admissible if it is generally accepted as a reliable technique among the scientific community." United States v. Solomon, 753 F.2d 1522, 1526 (9th Cir.1985) (citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). We impose

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this requirement because such evidence "create[s] a substantial danger of undue prejudice or of confusing the issues or of misleading the jury ... because of its aura of special reliability and trustworthiness." United States v. Amaral, 488 F.2d 1148, 1152...

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