Ambrosini v. Labarraque
| Decision Date | 12 June 1992 |
| Docket Number | Nos. 90-7146 and 90-7148,s. 90-7146 and 90-7148 |
| Parties | , 61 USLW 2048, 35 Fed. R. Evid. Serv. 1297, Prod.Liab.Rep. (CCH) P 13,202 Teresa AMBROSINI, et al., Appellants, v. Jorge LABARRAQUE, M.D., et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civ. Nos. 84-3483 & 86-0278).
Barry J. Nace, Washington, D.C., for appellants in 90-7146 and 90-7148.
David M. Covey, New York City, of the bar of the United States Court of Appeals for the State of New York, pro hac vice, by special leave of the Court, with whom John F. Mahoney, Washington, D.C., was on the brief, for appellees, The Upjohn Co., in both cases.
Michael F. Flynn, Jr. and Katherine S. Duyer, Rockville, Md., were on the brief, for appellee, Jorge Labarraque, in 90-7146 and 90-7148. James P. Gleason, Rockville, Md., also entered an appearance for appellee.
Vincent H. Cohen and Walter A. Smith, Jr., Washington, D.C., entered appearances for appellee, Richardson-Merrell, Inc. in both cases.
Before: MIKVA, Chief Judge, RUTH B. GINSBURG and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA.
Escolastica and Bruno Ambrosini, on behalf of themselves and their daughter Teresa, appeal a decision by the district court granting summary judgment in favor of defendants, The Upjohn Company and Dr. Jorge Labarraque. The district court held that the Ambrosinis failed to present specific, admissible scientific evidence sufficient to create a genuine issue of material fact on the issue whether the drug Depo-Provera caused the birth defects suffered by Teresa Ambrosini. The Ambrosinis argue that the district court erred in applying this court's earlier decision in Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), as well as Federal Rule of Evidence 703, in excluding their experts' affidavits. The Ambrosinis contend that the affidavits had a sufficient foundation under Rule 703 and contained the detail necessary to defeat the motion for summary judgment. Because we are convinced that the district court erred in applying the Richardson decision, as well as the standards governing summary judgment, we reverse the district court's grant of summary judgment as premature and remand for further proceedings.
Teresa Ambrosini suffers from severe birth defects including facial and ear malformations, hearing loss due to middle ear abnormalities, eye and vertebral malformations, and cleft lip and palate. The Ambrosinis brought an action against the manufacturers of the drugs Bendectin and Depo-Provera claiming that the drugs, either individually or in combination, caused Teresa's birth defects. The Ambrosinis also named as a defendant Mrs. Ambrosini's doctor, Dr. Jorge Labarraque, who prescribed the drugs. The claims against the manufacturer of Bendectin were later dismissed leaving only Upjohn, the manufacturer of Depo-Provera, and Dr. Labarraque as defendants.
After preliminary discovery, Upjohn moved for summary judgment, contending that no reliable scientific evidence exists to support the contention that Depo-Provera caused Teresa's birth defects. In support of its motion, Upjohn submitted the affidavit of Dr. Joe Leigh Simpson who discussed three epidemiological studies, as well as other published articles and studies, all indicating that medroxyprogesterone (the chemical name for Depo-Provera) did not cause the type of birth defects suffered by Teresa Ambrosini.
In response to Upjohn's motion, the Ambrosinis submitted the affidavits of two expert physicians, Dr. Allen S. Goldman and Dr. Brian Strom. At the same time, the Ambrosinis moved to amend their list of experts provided under Federal Rule of Civil Procedure 26(b)(4) by replacing their previously named experts with Dr. Goldman and Dr. Strom. Although Upjohn opposed the switch, the district court did not rule on the Ambrosinis' motion and considered the experts' affidavits for the purpose of ruling on the summary judgment motion.
In his affidavit, Dr. Goldman stated, in relevant part, that:
I am familiar with the available scientific and epidemiological data concerning progestin and progesterone agents including the product manufactured by the defendant Upjohn Company known as Depo-Provera, and it is my opinion within a reasonable degree of medical and scientific certainty that Depo-Provera does cause severe and disfiguring birth defects of the type that is suffered by Teresa Ambrosini. It is further my opinion that within a reasonable degree of medical certainty Teresa Ambrosini's birth defects were a result of the ingestion of Depo-Provera.
Dr. Goldman's affidavit did not, however, explain in detail the basis for his conclusion nor did it specifically state which studies, reports, or articles he relied on.
Dr. Strom stated in his affidavit that:
It is my opinion that from a review of the epidemiological data that progestins, in general, do cause birth defects. This opinion is based upon the epidemiological data that is available in the literature. Further, in utilizing my education, training, and experience in the field I have used the same methodology that is generally and reasonably relied upon by epidemiologists and specifically those epidemiologists who interpret data involving drugs that are believed to cause birth defects.
Dr. Strom's affidavit also did not identify the publications, studies, or methodology he used in forming his opinion.
After considering the affidavits submitted by both parties, the district court granted Upjohn's motion for summary judgment. The court reasoned that "[p]laintiffs have failed to demonstrate that there are genuine issues of material fact or to identify admissible scientific evidence upon which a jury could find that Depo-Provera is a human teratogen." Ambrosini v. Richardson-Merrell, Inc., et al., No. 84-3483, slip op. at 13 (August 31, 1990) (hereinafter Memorandum Opinion ). The court interpreted our decision in Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.Cir.1988), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989) as requiring "specific, admissible scientific proof" in support of a claim that a drug is responsible for causing birth defects. Memorandum Opinion, at 8. The court held that the "conclusory and unsupported" affidavits submitted by the experts were insufficient under Richardson, as well as under Rule 56 of the Federal Rules of Civil Procedure, to defeat Upjohn's motion for summary judgment. Memorandum Opinion, at 12.
We first address the district court's conclusion that summary judgment was proper under our decision in Richardson. Richardson addressed the admissibility of expert testimony under Federal Rule of Evidence 703 which governs the basis for expert opinions. The Rule provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
FED.R.EVID. 703. Sometimes referred to as an "expert testimony exception to the hearsay rule," see e.g. United States v. Unruh, 855 F.2d 1363, 1376 (9th Cir.1987), Rule 703 broadens the acceptable bases for expert testimony by allowing an expert to base an opinion on hearsay and other evidence not admissible in court. See Fed.R.Evid. 703 advisory committee's note; JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S EVIDENCE p 703, at 6-7 (1991). Also, the Rule allows an expert to avoid the time consuming process of introducing otherwise admissible evidence that forms the basis for the expert's opinion. As the advisory committee recognized:
[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance on them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.
FED.R.EVID. 703 advisory committee's note.
The expert testimony at issue in Richardson was a physician's opinion that the drug Bendectin caused the birth defects suffered by the plaintiffs' child. The expert, Dr. Alan K. Done, based his opinion on four types of evidence: (1) The chemical structure of Bendectin, (2) in vitro (test tube) studies, (3) in vivo (animal) studies, and (4) a reanalysis of the defendant's epidemiological studies showing no causal connection between the drug and the birth defects in question. Richardson, 857 F.2d at 826.
In his testimony, however, Dr. Done acknowledged that the chemical, in vitro, and in vivo studies alone could not form a sufficient basis to conclude that Bendectin caused birth defects. Id. And when confronted with epidemiological studies showing no statistically significant association between Bendectin and birth defects, Dr. Done conceded that he would not give an opinion as to causation unless epidemiological studies showed a statistically significant association between Bendectin and birth defects. Id. at 831. Furthermore, while Dr. Done found a statistically significant association, he did so only by recalculating the data in studies that found none, and his recalculations were never published or subjected to peer review. Id.
Richardson rejected Dr. Done's opinion, therefore, because it lacked an adequate basis under Rule 703. The...
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