HULL BY HULL v. Merrell Dow Pharmaceuticals Inc.

• Citation: 700 F. Supp. 28
• Decision Date: 26 October 1988
• Docket Number: No. 86-6215-Civ.,86-6215-Civ.
• Parties: Joseph Lee HULL, a minor, by his parents and next friends, John HULL, his father, and Alberta Hull, his mother, and John Hull and Alberta Hull, individually, Plaintiffs, v. MERRELL DOW PHARMACEUTICALS INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

700 F. Supp. 28

Joseph Lee HULL, a minor, by his parents and next friends, John HULL, his father, and Alberta Hull, his mother, and John Hull and Alberta Hull, individually, Plaintiffs, v. MERRELL DOW PHARMACEUTICALS INC., Defendant.

No. 86-6215-Civ.

United States District Court, S.D. Florida.

October 26, 1988.

Alberta Lee Hull, Fort Lauderdale, Fla., pro se.

John Hull, Lauderdale By the Sea, Fla., pro se.

Francis Pierce, III, Gurney & Handley, P.A., Orlando, Fla., Frank C. Woodside, III, Dinsmore & Shohl, Cincinnati, Ohio, for defendant.

MEMORANDUM ORDER AND OPINION

GONZALEZ, District Judge.

Joseph Lee Hull, minor plaintiff-child of John and Alberta Hull, and John and Alberta Hull, individually, bring this action against Merrell Dow Pharmaceuticals Inc. ("Merrell Dow"), alleging that the ingestion of Bendectin by Alberta Hull during her pregnancy caused Joseph to be born with certain birth defects. The matter is now before the Court on Merrell Dow's Motion for Summary Judgment. For the reasons set forth below, the Court finds this Motion to be meritorious and hereby grants summary judgment in favor of Merrell Dow against plaintiffs.

Procedural History

This action was originally filed on January 12, 1984 in the Circuit Court for Broward County and later removed by defendant to this Court. The Court granted defendant's Petition for Removal by Order dated June 9, 1986.

On October 14, 1987, the Court granted plaintiffs' attorney, Burton E. Burdick's Motion to Withdraw. Thereafter, the Court set a scheduling conference for March 17, 1988. Plaintiffs, pro se, wrote correspondence to the Court, dated March 7, 1988, which the Court treated as a Motion for Extension of Time. In this letter, plaintiffs advised the Court that they had obtained new counsel, Barry Nace and Thomas Taggart, but that neither could attend the Scheduling Conference. By Order dated March 8, 1988, the Court continued the Scheduling Conference to June 9, 1988.

On June 7, 1988, plaintiffs, pro se, filed another Motion for Extension of Time, indicating that their attorneys, Mr. Nace and Mr. Taggart, were unable to attend the Scheduling Conference. The Court again reset the Scheduling Conference for October 6, 1988. In that Order, dated June 7, 1988, the Court notified plaintiffs that no further continuances would be granted. In addition, the Court ordered that plaintiffs keep it advised whether Mr. Nace and Mr. Taggart would be representing them.

Plaintiffs did not appear at the October 6, 1988 Scheduling Conference either in person or through counsel. Moreover, defendant has supplied the Court with letters from Mr. Nace and Mr. Taggart demonstrating that, some time ago, they advised plaintiffs they would not undertake representation in this action. Thus, plaintiffs have not complied with the Court's June 9, 1988 Order.

Defendant's Motion for Summary Judgment has been pending, unopposed, since February 26, 1988 and the Court is now prepared to rule on it. The Court finds defendant's Motion for Summary Judgment to be persuasive and dismisses this action for the reasons described below.

Analysis

Plaintiffs allege that Alberta Hull's use of Bendectin during pregnancy caused Joseph Hull to be born with various deformities of the left leg and foot. Merrell Dow seeks summary judgment on two bases: (1) Plaintiffs lack sufficient evidence, as a matter of law, to prove that Bendectin causes birth defects (and more particularly limb defects) in humans; and (2) Plaintiffs also cannot demonstrate causation in this specific case because Bendectin was first ingested by Mrs. Hull too late in her pregnancy. The Court finds both positions to be well taken.

It is obvious to the Court that Plaintiffs cannot establish a causal relationship between Bendectin use and the occurrence of birth defects, particularly limb deformities. The body of scientific literature demonstrating the safety of Bendectin is extensive and overwhelming. More than thirty human epidemiological studies have been done and none have concluded that Bendectin is teratogenic.

Several courts have addressed the adequacy of Plaintiffs' causation evidence in Bendectin litigation and have found it insufficient as a matter of law.¹ In Lynch v. Merrell-National Laboratories, 646 F.Supp. 856, 867-868 (D.Mass.1986), aff'd 830 F.2d 1190 (1st Cir.1987), the district court granted summary judgment on causation, concluding:

The only relevant, probative, and non-misleading evidence on the issue of Bendectin's role in the causation of birth defects

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