Jones v. US

• Decision Date: 03 July 1996
• Docket Number: Civil No. 93-20137 SW.
• Parties: Karyn T. JONES and Chris Jones, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

933 F. Supp. 894

Karyn T. JONES and Chris Jones, Plaintiffs, v. UNITED STATES of America, Defendant.

Civil No. 93-20137 SW.

United States District Court, N.D. California.

July 3, 1996.

COPYRIGHT MATERIAL OMITTED

Donald J. Loftus, Monterey, CA, for plaintiffs.

Patricia J. Kenney, San Francisco, CA, for defendant.

MEMORANDUM OF DECISION

SPENCER WILLIAMS, District Judge.

Plaintiffs Chris and Karyn Jones brought this wrongful birth action against Defendant United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., to recover costs and damages associated with the birth and upbringing of their daughter Abbigayle. According to Plaintiffs, the United States is responsible for Karyn's pregnancy because U.S. Army doctors negligently failed to warn Karyn that the penicillin they prescribed for her could interfere with the effectiveness of her birth control pills.

The Court bifurcated the case and conducted a two-week bench trial on the issue of liability. After considering the entire record, the Court finds that Plaintiffs' evidence of causation does not meet the Daubert standard for admissibility in federal court. Furthermore, even if this evidence were admissible, the Court finds that Plaintiffs' have failed to satisfy their burden of proof on several elements of their case. This memorandum constitutes the Court's findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

FACTS

In early 1992,¹ at the time of the events leading to this lawsuit, Karyn and Chris Jones were married and living together at Fort Ord, California. Chris was an active-duty sergeant in the U.S. Army. Trial Transcript ("Tr."), vol. 1, at 22, 27.

On January 16, Karyn went to an Army gynecologist, Dr. James Murphy, M.D., for an annual examination and to obtain a prescription for birth control pills. Dr. Murphy conducted a pap smear which showed that Karyn was not pregnant. Dr. Murphy also prescribed Triphasil-28 birth control pills, but he did not warn Karyn of the possibility that antibiotics could interfere with the effectiveness of her birth control pills. Tr., vol. 1, at 23.

Karyn began taking her birth control pills on February 2. Tr., vol. 1, at 24. During this time, Karyn and her husband had sexual intercourse an average of once per night. Tr., vol. 1, at 34.

On February 7, Karyn went to the Army dental clinic at Fort Ord complaining of a toothache. The dental clinic referred Karyn to the oral surgery unit at Silas B. Hayes Hospital, where oral surgeon Dr. Mark Cerbus, D.D.S. examined Karyn and determined that she needed oral surgery. To assure that no infection would be present at the time of surgery, Dr. Cerbus prescribed Penicillin-VK, an antibiotic, to be taken four times a day for six days. Karyn's medical chart indicated that she was taking birth control pills, but neither Dr. Cerbus nor his dental hygienist Susan Balistreri warned Karyn that the Penicillin-VK might interfere with the effectiveness of her birth control pills. Tr., vol, 1, at 27-30.

Karyn took four antibiotics pills per day on February 8 and 9, three pills per day on February 10 and 11, two pills on February 12 and one pill on February 13. Tr., vol. 1, at 32-33.

On February 19, Karyn returned to the dental clinic to have some lab work done in preparation for surgery, including a routine pregnancy test. She saw another oral surgeon, Dr. Caples, during this visit. Dr. Caples warned Karyn that antibiotics could reduce the effectiveness of her birth control pills. Tr., vol. 1, at 53-54.

The next day, Karyn was informed that her pregnancy test was positive. A second pregnancy test performed on February 21 was also positive. Tr., vol. 1, at 54-55.

After discovering that she was pregnant, Karyn discussed her options with her husband. Although neither Chris or Karyn wanted more children, and Karyn had had an abortion on a prior occasion, the Jones decided to continue Karyn's pregnancy to term. Tr., vol. 1, at 56-57, 101-102.

Karyn gave birth to Abbigayle, a healthy baby girl, on October 17. Tr., vol. 1, at 57. Since her birth, Abbigayle has had no significant health problems and has lived primarily with her grandparents in Mississippi. Abbigayle has only sporadic contact with her biological parents.

On August 11, Plaintiffs filed a Standard Form 95 administrative claim against their Army doctors for malpractice and wrongful life. The Army denied Plaintiffs' administrative claim on April 22, 1993. Plaintiffs thereafter filed this suit in federal court.

ANALYSIS

The Court bifurcated this case for purposes of trial. The sole issue in the first phase of the case is liability: whether the United States is liable for the costs attributable to Karyn's pregnancy and raising Abbigayle.

I. Admissibility of Plaintiffs' Scientific Evidence Under Daubert

As a threshold matter, the Court must determine whether Plaintiffs' scientific evidence regarding the supposed interaction between antibiotics and oral contraceptives satisfies the standard developed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and explained further upon remand by the Ninth Circuit in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). Under the Daubert standard, medical evidence is admissible in federal court only if it both: (1) reflects "scientific knowledge"; and (2) is "relevant to the task at hand." Daubert, 509 U.S. at 597, 113 S.Ct. at 2798; Daubert, 43 F.3d at 1315.

A. Scientific Knowledge

To qualify as scientific knowledge, an inference or assertion does not have to be proven as an "absolute certainty," but it must be "derived by the scientific method" and "based on scientifically valid principles." Daubert, 509 U.S. at 590, 113 S.Ct. at 2795; Daubert, 43 F.3d at 1316. Factors that may be relevant in determining whether evidence is based on scientific knowledge are: (1) whether the theory employed by the expert is generally accepted in the scientific community; (2) whether it has been subjected to peer review and publication; (3) whether it can be and has been tested; and (4) whether the known or potential rate of error is acceptable. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97; Daubert, 43 F.3d at 1316-17.

Testimony that grows naturally out of an expert's own independent research is generally more reliable than opinions an expert has developed for the sole purpose of testifying in court. Daubert, 43 F.3d at 1317. This is the case because experts whose findings flow from their own research are less likely to be biased by the promise of monetary compensation for their testimony. Id. Moreover, because there are likely to be very few experts researching the specific subject that is at issue at trial, testimony by those experts provides a natural constraint on the parties' abilities to "shop for experts" who will support their desired interpretation of the evidence. Id.

If an expert does not testify based on independent research, the party offering such testimony must come forward with other "objective, verifiable evidence" that is based on "scientifically valid principles." Id. at 1318. "Peer review and publication are valid principles." Id. at 1318. Peer review and publication are the most important means of ensuring that an expert's methodology is sound. Id.

In this case, Plaintiffs presented two witnesses to testify about the supposed interaction between Penicillin-VK and Triphasil-28 birth control pills: Dr. Hinderstein, M.D.² and Dr. Harralson, Pharm.D.³ Neither of these witnesses have done any independent research in the area of antibiotic/oral contraceptive interaction. Tr., vol. 2, at 223-224, vol. 4, at 620. Therefore, the Court's inquiry here is limited to whether each testified based upon objective, verifiable evidence that was derived from scientifically valid principles. In essence, the Court must determine whether the articles upon which the witnesses based their opinions are supported by good science.

After carefully considering Dr. Hinderstein's and Dr. Harralson's testimony, and reviewing the articles upon which they purported to base their opinions, the Court finds that Plaintiffs' evidence of causation is insufficient to satisfy the Daubert standard. Plaintiffs' evidence shows, at most, that there is anecdotal support for the hypothesis that an unexplained interaction between certain antibiotics and oral contraceptives may reduce the effectiveness of the contraceptives. However, Plaintiffs' evidence falls far short of the proven, cause-and-effect relationship that is necessary to satisfy the Daubert standard.

Plaintiffs' witnesses did not cite to any competent scientific evidence to support their testimony. Although Drs. Hinderstein and Harralson claimed that their opinions were supported by numerous scientific articles,⁴ a careful reading of these articles reveals that many of their authors came to different conclusions than Plaintiffs' witnesses did. In other words, Plaintiffs' witnesses took data from articles that found no statistically significant correlation between antibiotic use and increased failure of oral contraceptives, and used the data to reach a conclusion contrary to the articles' own authors. This tactic does not qualify as good science.

For example, Plaintiffs' witnesses relied heavily upon the Back article to support their testimony. This article contains the author's discussion of findings he made while studying 7 women who were taking oral contraceptives and ampicillin concurrently. At trial, Plaintiffs' experts testified that the Back study showed a drop in the effectiveness of the oral contraceptives in two of the seven women. Tr., vol. 1, at 75-76, vol. 4, at 646-47. However, this conclusion is in direct contradiction to the article itself which concludes with the sentence: "Ampicillin did not lower plasma oral contraceptive steroid...