Harbeson v. Parke Davis, Inc., 83-3741

• Decision Date: 30 October 1984
• Docket Number: No. 83-3741,83-3741
• Citation: 746 F.2d 517
• Parties: Leonard HARBESON, Jean Harbeson, et al., Plaintiffs-Appellees, v. PARKE DAVIS, INC., and the United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 517

746 F.2d 517

Leonard HARBESON, Jean Harbeson, et al., Plaintiffs-Appellees, v. PARKE DAVIS, INC., and the United States of America Defendants-Appellants.

No. 83-3741.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1984.

Decided Oct. 30, 1984.

Samuel H. Pemberton, Jr., Mann, King, Anderson, Bingman & Scraggin, Tacoma, Wash., for plaintiffs-appellees.

Michael Kimmel, Peter R. Maier, Washington, D.C., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before ANDERSON, SKOPIL, and BOOCHEVER, Circuit Judges.

SKOPIL, Circuit Judge:

The United States appeals a judgment holding it liable to Leonard and Jean Harbeson and two of their children for the failure of three doctors at an Army medical center to respond to the Harbesons' inquiries by disclosing the risks of an anticonvulsant medication on unborn children. The government contends the judgment against it is barred by collateral estoppel and that

the district court erred in its findings of fact and conclusions of law. We affirm.

BACKGROUND

In December 1970, during Leonard Harbeson's tour of duty at an air force base, his wife, Jean, was diagnosed as having epilepsy. She received a prescription for the anticonvulsant drug, "Dilantin Kapseals" (Dilantin), from doctors at the air force base. Mrs. Harbeson was then pregnant with the couple's first child, Michael, who was born in 1971 and is a healthy and normal child.

In the ensuing year, several other anticonvulsants were prescribed for Mrs. Harbeson, only to be discontinued after she suffered adverse reactions. Following her husband's transfer to McChord Air Force Base in the State of Washington, Mrs. Harbeson was referred in May 1972 to Madigan Army Medical Center (Madigan) for evaluation and treatment. Dr. Green, a neurologist at Madigan, prescribed Dilantin and Phenobarbitol to control Mrs. Harbeson's seizures.

Around this time the Harbesons contemplated having more children. Because of suspicions about the drug, the couple in November 1972 consulted Dr. Green about the possible risks of taking Dilantin during pregnancy. Later that month the Harbesons made the same inquiry of Dr. Weis, an intern at Madigan's gynecology clinic. In July 1973 Mrs. Harbeson presented the same question to Dr. Larson, a resident in Madigan's gynecology clinic, when she saw him because of a difficulty in conceiving. Each of the three Madigan doctors informed the Harbesons that taking Dilantin during pregnancy could cause cleft palate, which could be surgically repaired, and hirsutism, a temporary condition of excess hair. In reliance on this advice, the Harbesons decided to have additional children. Jean gave birth to Elizabeth in April 1974 and to Christine in May 1975, while taking Dilantin.

In responding to the Harbesons' inquiries, none of the doctors conducted a literature search or consulted other sources for specific information concerning the effect of Dilantin on an unborn child, with the possible exception of Dr. Green's consultation of the "Physicians' Desk Reference" (PDR). The district court found that a literature search would have revealed several articles regarding the correlation of Dilantin and birth defects, including a "hallmark" article, Maternal Epilepsy & Abnormalities of the Fetus and Newborn, authored by B.A. Speidel and S.R. Meadow and published in October 1972 in the British journal, The Lancet.

After being alerted to the drug's possible side effects on unborn children, the Harbesons took their daughters to a Seattle hospital for examination. Dr. Sterling Clarren of the University of Washington Dysmorphology Clinic diagnosed the children as having "Fetal Hydantoin Syndrome" (FHS). The first article describing this actual syndrome was published in the Journal of Pediatrics in August 1975. FHS may involve birth defects such as cleft palate, hirsutism, growth deficiencies, cardiac defects, skeletal anomalies, developmental defects, and mild to moderate retardation. Elizabeth and Christine Harbeson suffer from mild to moderate growth deficiencies, mild to moderate developmental retardation, and other physical, mental, and developmental defects.

The Harbesons brought an action against both Parke Davis, Inc., the manufacturer of the drug, and the United States. The action against the United States was pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2674 et seq. Both cases were tried simultaneously in November 1981.

A jury tried the Harbeson case against Parke Davis, and on December 7, 1981 returned a special verdict finding that Dilantin did not cause the children's injuries. On that same day the district court entered judgment in favor of Parke Davis. Pursuant to 28 U.S.C. Sec. 2402, the court tried the Harbesons' case against the United States. By agreement of the parties, the court took into consideration the pleadings and evidence submitted in the Parke Davis case. Testimony of additional expert witnesses On December 29, 1981 the court issued findings of fact and conclusions of law in favor of the Harbesons in their action against the government. On that same day the court on its own motion certified questions of law to the Washington Supreme Court. The court's question was whether Elizabeth and Christine Harbeson could maintain a "wrongful birth" action. See Harbeson v. Parke Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983). The Washington Supreme Court answered affirmatively. Id. On February 15, 1983 the district court entered judgment in favor of the Harbesons. At no time did the government move the court that the jury verdict on causation should collaterally estop the Harbesons' action against the government.

was presented in the trial against the United States that was not presented in the jury trial.

I. Collateral Estoppel

A. Standard of Review

A question concerning the waiver of an affirmative defense involves the interpretation of Rule 8(c) of the Federal Rules of Civil Procedure and, as such, is a question of law reviewed de novo. Cf. Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983) (statutory interpretation). The applicability of the doctrine of collateral estoppel is primarily a question of law that may necessitate resolution of factual questions. See United States v. Geophysical Corp. of Alaska, 732 F.2d 693, 697 (9th Cir.1984).

B. Analysis

The government argues that the special verdict of the jury in the Parke Davis action that found Dilantin did not cause the birth defects should have precluded the district court from finding for the Harbesons in their action against the government. We do not reach the merits ¹ of this argument because we hold that the failure of the government to raise this issue below constituted a waiver of this affirmative defense.

Collateral estoppel is an affirmative defense that ordinarily is waived if not specially pleaded. See Fed.R.Civ.P. 8(c); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788, 812 (1971). Because the action against Parke Davis was tried simultaneously with the action against the government, this case involves a situation where there was no opportunity to raise the defense in the pleadings. This court has stated that a preclusion defense that arises after the pleadings have been filed can be raised only by a motion for leave to file a supplemental answer under Rule 15(d). Weekes v. Atlantic National Ins. Co., 370 F.2d 264, 271 (9th Cir.1966). In so holding, however, we liberally treated an attempt to raise the defense as if it were a motion for leave to file a supplemental answer. See id.

The fact that collateral estoppel can be raised for the first time after the pleadings have been filed does not foreclose the possibility that the defense can be waived. The purpose behind requiring the pleading of this defense "is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate." Blonder-Tongue, 402 U.S. at 350, 91 S.Ct. at 1453. This in turn allows each party to supplement the record to show why the defense should or should not be imposed. See id. The district court can then make whatever factual findings may be necessary, see Geophysical Corp., 732 F.2d at 697, and determine as a matter of law whether the defense should be applied. This policy rationale is effectuated with equal force by requiring a party in the situation in which the government finds Based on the foregoing, we hold that the United States waived its right to assert the doctrine of collateral estoppel by failing to raise it before the district court. The government had more than a reasonable opportunity to raise the defense below. The judgment in favor of Parke Davis was entered on December 7, 1981 and judgment in this case was not entered until February 15, 1983. In the time since judgment in favor of Parke Davis, the government finished the trial of the Harbesons' FTCA claim, made oral argument on motions to dismiss on other grounds, submitted written closing arguments, and participated in certification of questions of law to the Supreme Court of Washington. It is difficult to conceive of a situation where waiver would be more evident.

                itself here to have raised the defense before the district court if it had a reasonable opportunity.   Cf. Blonder-Tongue, 402 U.S. at 350, 91 S.Ct. at 1453 (case remanded to allow party to amend pleadings to assert estoppel for first time because party had no previous opportunity to plead estoppel);  accord, Exxon Corp. v. Texas Motor Exchange of Houston, Inc., 628 F.2d 500, 507 n. 3 (5th Cir.1980) (collateral estoppel will not be considered for the first time on appeal).  To hold otherwise would be inconsistent with the spirit of Rule 8(c) of the Federal Rules of Civil Procedure, and would undermine

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