Burleson v. Mead Johnson & Company
| Decision Date | 28 July 1972 |
| Docket Number | No. 72-1231.,72-1231. |
| Parties | Mitchell Craig BURLESON, a minor, by and through Theo Burleson, as his Next Friend, Plaintiff-Appellant, v. MEAD JOHNSON & COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Phil Burleson, Dallas, Tex., for plaintiff-appellant.
Mark Martin, Wilson W. Herndon, Patrick F. McGowan, Dallas Tex., Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex., of counsel, for defendant-appellee.
Before DYER, Circuit Judge, SKELTON, Judge*, and INGRAHAM, Circuit Judge.
Mitchell Craig Burleson was born without arms or legs, a deformity medically known as phocomelia. His complaint alleged that his condition was directly and proximately caused by a prescriptive drug known as Oracon, an oral contraceptive manufactured by Mead Johnson. The drug was prescribed for Mrs. Burleson by her gynecologist for the regulation of her menstrual cycle. She took it over a six week period, during which time she apparently became pregnant with the plaintiff. Summary judgment was entered for Mead Johnson. We affirm.
Suit was filed on October 28, 1969. Mead Johnson moved for summary judgment on July 2, 1970, supported by an abundance of discovery depositions in which there was a unanimity of opinion of expert medical witnesses that within a reasonable medical probability Oracon could not have been a cause of Michael Burleson's phocomelia.
On February 25, 1971, the motion for summary judgment was argued. The court deferred ruling on the motion, however, until December 2, 1971, in order to allow Burleson more time for discovery. Burleson did nothing further. He produced no facts, nor were there inferences that could be drawn from established facts, that could possibly controvert Mead Johnson's showing of a lack of causal relationship between Oracon and the deformity. The unequivocal uncontroverted evidence of Mrs. Burleson's obstetrician, gynecologist, and attending pediatrician, together with the other evidence, ruled out Oracon as a cause of the birth defects suffered by the plaintiff.
We have carefully reviewed the pleadings, depositions, admissions, answers to interrogatories, and affidavits. Considered in the light most favorable to the plaintiff, we are convinced, as was the district court, that there is no genuine issue of fact for trial, and that the defendant was entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, Inc., 1962, 368...
To continue reading
Request your trial
-
In re Yarn Processing Patent Validity Litigation
...be decided. See Insurance Company of North America v. Bosworth Construction Co., 469 F.2d 1266 (5th Cir. 1972); Burleson v. Mead Johnson & Co., 463 F.2d 180 (5th Cir. 1972). It is admitted that neither of these cases involved the validity of patents, but the application of the rule would no......
-
Morton v. Texas Welding & Mfg. Co.
...warranty for statute of limitations purposes, in both Burleson v. Mead Johnson & Company, 331 F.Supp. 710 (N.D.Tex.1971), aff'd, 463 F.2d 180 (5th Cir. 1972), and in Thrift v. Tenneco Chemicals, Inc., Heyden Division, 381 F.Supp. 543 (N.D.Tex.1974), the court considered causes of action whi......
-
Thrift v. Tenneco Chemicals, Inc., Heyden Division
...from negligence and those arising from breach of warranties. Burleson v. Meade Johnson & Co., 331 F.Supp. 710 (N.D.Tex.1971) aff'd 463 F.2d 180 (5th Cir. 1972). The parties agree that art. 5526 is the applicable statute in this case, but their positions diverge on when the statute begins to......