Bendet v. Sandoz Pharmaceuticals Corp.

• Decision Date: 22 October 2002
• Docket Number: No. 02-1024.,02-1024.
• Citation: 308 F.3d 907
• Parties: Carole BENDET; Joseph Bendet, Appellants, v. SANDOZ PHARMACEUTICALS CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

308 F.3d 907

Carole BENDET; Joseph Bendet, Appellants, v. SANDOZ PHARMACEUTICALS CORPORATION, Appellee.

No. 02-1024.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2002.

Filed: October 22, 2002.

Ellen Relkin, argued, New York City (Frederick W. Drakesmith, on the brief), for appellant.

Eric G. Lasker, argued, Washington, DC (Deirdre C. Gallagher, Joe G. Hollingsworth and Katharine R. Latimer, on the brief), for appellee.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,¹ District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Carole Bendet and Joseph Bendet brought this product liability action against Sandoz Pharmaceuticals Corporation (Sandoz), now known as Novartis Pharmaceuticals Corporation, when Ms. Bendet suffered a stroke after taking Parlodel, a postpartum lactation suppressant that Sandoz manufactured. The district court granted summary judgment to Sandoz and the Bendets appeal. We reverse the judgment of the district court.

This case is one of a number of similar cases nationwide in which new mothers who took Parlodel to suppress postpartum lactation complain that Parlodel caused injuries ranging from heart attack to stroke. The Bendets' medical experts theorized that Ms. Bendet's ischemic stroke (where blood flow to the brain is restricted) resulted from vasospasm (a spasm or constriction of the blood vessels) induced by Parlodel. Sandoz filed a motion for summary judgment seeking to exclude the testimony of these experts under Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because Sandoz had successfully excluded the testimony of two of those experts in another Parlodel case in the Eastern District of Missouri, Glastetter v. Novartis Pharm. Corp., 107 F.Supp.2d 1015 (E.D.Mo.2000), the Bendets sought and received a stay of proceedings pending appellate review of that case.

In moving for the stay, the Bendets indicated to the district court that the Glastetter appeal would "presumably settle the dispositive Daubert evidentiary issues critical to [their] case." Although Ms. Bendet and Ms. Glastetter suffered different types of injuries, those medical experts common to their cases professed the same theory of causation in both cases. The district court in Glastetter had rejected the experts' assertions that Ms. Glastetter's hemorrhagic stroke (where too much blood enters the brain) resulted from vasospasm induced by Parlodel at the general causation level, finding that the experts had failed to produce scientifically convincing evidence that Parlodel causes vasoconstriction. Glastetter, 107 F.Supp.2d at 1044-45. We affirmed this ruling in Glastetter v. Novartis Pharm. Corp., 252 F.3d 986 (8th Cir.2001) (per curiam).

Following our decision, Sandoz filed a motion in the Bendets' case for an order directing them to show cause why their case should not be dismissed in light of our ruling. In response, the Bendets requested that the district court continue the stay of proceedings pending Ms. Glastetter's pursuit of further appellate remedies, or, alternately, that the district court "allow the Daubert briefing to proceed and consider the Bendet case on its merits before issuing any outcome determinative orders." The district court, stating that the parties had "essentially construed the motion [for an order to show cause] as one to dismiss or for summary judgment," and finding that the parties "had the opportunity to be fully heard on the issue," determined that our decision in Glastetter controlled the disposition of the Bendets' case and granted summary judgment based on the exclusion of the Bendets' evidence of causation.

I.

The district court, in deciding that our ruling in Glastetter controlled the disposition of the Bendets' case, relied in part on the Bendets' earlier representation that the Bendets' medical causation evidence was "essentially the same" as Ms. Glastetter's medical causation evidence. To the extent that the district court may have invoked the doctrine of judicial estoppel to preclude the Bendets from arguing that our analysis in Glastetter was not fatal their case, we believe that it was mistaken. Whether this diversity case is governed by the substantive law of New Jersey (as the Bendets suggest) or Missouri (as Sandoz suggests), under either state's law the doctrine of judicial estoppel is restricted to those instances where a party takes a position that is clearly inconsistent with its earlier position. See Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 608-09 (8th Cir.1993); Edwards v. Durham, 346 S.W.2d 90, 100-01 (Mo.1961); Ali v. Rutgers, 166 N.J. 280, 287-88, 765 A.2d 714, 718 (2000).

No doubt, any confusion over whether judicial estoppel is appropriately invoked in this case stems in part from the Bendets' attempt to affiliate with Ms. Glastetter closely enough to obtain the stay, but not so closely as to lose control of their case. We think it significant, however, that the Bendets opposed, and the district court refused to grant, Sandoz's request that any stay be conditioned upon dismissal with prejudice if Glastetter were affirmed. In fact, the Bendets stated in their reply to Sandoz's response to their motion for a stay that "it would be foolhardy on plaintiff's counsel's part to agree to any such dismissal without giving [the district court] the benefit of hearing the Bendet specific differential diagnosis testimony," and concluded that it would "[n]evertheless... still ... be instructive for this [district court] to learn of the Eighth Circuit's view on this evidence." The Bendets also noted in their motion for a stay their belief that the district court could hear the evidence specific to ischemic stroke and in its discretion reach a different opinion than the district court had in Glastetter. Based on these statements, we cannot say that the Bendets' later opposition to the motion for an order to show cause is "clearly inconsistent" with their earlier position in support of the stay.

The doctrine of judicial estoppel operates to protect the integrity of the judicial process. New Hampshire v. Maine, 532 U.S. 742, 749-750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). Where, as here, the district court expressly recognized the possibility that "some distinction may exist or arise" between the Bendets' case and Glastetter, the integrity of the judicial process is not undermined by permitting the Bendets an opportunity to argue that such a distinction in fact exists. We are not suggesting that Glastetter is irrelevant to the Bendets' case; we note merely that the Bendets are not judicially estopped from attempting to distinguish their case from Ms. Glastetter's.

II.

Sandoz rejects, and we think rightly so, the Bendets' characterization of the district court's decision as an application of non-mutual collateral estoppel. Non-mutual defensive collateral estoppel works to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against a different defendant. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 326 n. 4, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). An essential requirement of non-mutual defensive collateral estoppel is that the plaintiff was a party to, or in privity with a party to, the prior adjudication. See In re Estate of Dawson, 136 N.J. 1, 20-21, 641 A.2d 1026, 1034-35 (1994); James v. Paul, 49 S.W.3d 678, 682 (Mo. 2001); Nanninga v. Three Rivers Elec. Coop., 236 F.3d 902, 906 (8th Cir.2000) (application of collateral estoppel in diversity cases determined according to state law). As the Supreme Court has explained, "Some litigants — those who never appeared in a prior action — may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits estopping them despite one or more existing adjudications of the identical issue which stand squarely against their position." Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 329, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); see also Holloway v. Lockhart, 813 F.2d 874, 878 (8th Cir.1987).

While the district court may have foreclosed, or perhaps short-circuited, litigation of the causation issue in the Bendets' case based on the adjudication of the causation issue in Glastetter, nothing in the district court's order leads us to believe that the district court based its decision on the doctrine of non-mutual collateral estoppel. We think, rather, that the district court relied on a combination of judicial estoppel and stare decisis. Setting to one side the doctrine of judicial estoppel (because we have already indicated that it is inapplicable here), we agree that if the Bendets were to rely on...