Merrell Dow Pharmaceuticals, Inc. v. Havner

• Decision Date: 17 March 1994
• Docket Number: No. 13-92-540-CV,13-92-540-CV
• Citation: 907 S.W.2d 535
• Parties: Prod.Liab.Rep. (CCH) P 14,472 MERRELL DOW PHARMACEUTICALS, INC., Appellant, v. Ernest HAVNER and Marilyn Havner, on Behalf of their Minor Child, Kelly Havner, Appellees.
• Court: Texas Court of Appeals

Page 535

907 S.W.2d 535

Prod.Liab.Rep. (CCH) P 14,472

MERRELL DOW PHARMACEUTICALS, INC., Appellant, v. Ernest HAVNER and Marilyn Havner, on Behalf of their Minor Child, Kelly Havner, Appellees.

No. 13-92-540-CV.

Court of Appeals of Texas Corpus Christi.

March 17, 1994.

Opinion on Rehearing En Banc Aug. 10, 1995.

Rehearing Overruled Sept. 28, 1995.

Earl B. Austin, Baker & Botts, Dallas, Bruce Brennan, Marjorie E. Powell, Pharmaceutical Manufacturers Association, Washington, DC, for amicus curiae.

John L. Hill, Jr., James Snell, Liddell, Sapp, Zivley, Hill & LaBoon, Houston, Gene M. Williams, Mehaffy & Weber, Beaumont, Robert L. Dickson, Hall Marston, George Berry, Dickson, Carlson & Campillo, Santa Monica, CA, Russell Miller, James E. Essig, Liddell, Sapp, Zivley, Hill & LaBoon, Houston, Kamela Bridges, Liddell, Sapp, Zivley, Hill & LaBoon, Austin, for appellant.

Robert C. Hilliard, Hilliard, Grillo & Munoz, Corpus Christi, Barry J. Nace, Paulsen, Nace, Norwind & Sellinger, Washington, DC, Kevin W. Grillo, Hilliard, Grillo & Munoz, Corpus Christi, Guy Allison, Rebecca E. Hamilton, Allison & Huerta, Corpus Christi, for appellees.

James R. Harris, J. Norman Thomas, Harris & Thomas, Corpus Christi, for movant.

Before SEERDEN, C.J., and KENNEDY and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

SEERDEN, Chief Justice.

This is a product liability case. Appellees, Marilyn and Ernest Havner, sued Merrell Dow Pharmaceuticals, Inc. ("Merrell") on behalf of their minor daughter, Kelly. Kelly was born with no fingers or thumb on her right hand. Appellees alleged, and the jury found, that these birth defects were caused by Mrs. Havner taking the drug, Bendectin, a morning sickness drug manufactured by appellant. Merrell appeals from the judgment of actual and exemplary damages entered in favor of the Havners. Four issues are presented for review: first, whether there is legally or factually sufficient evidence of causation to support the verdict; second, whether the court erred in accepting a verdict when the same ten jurors did not concur on all material issues; third, whether legally and factually sufficient evidence supports the award of punitive damages, and if so, whether such an award violates Merrell's due process rights under the United States Constitution and the Texas Constitution; and fourth, whether the trial court reversibly erred in admitting various items into evidence. The Havners, by way of cross points, complain of the trial court's reduction in the damage award and the failure to award prejudgment interest. We reverse and render.

FACTS AND PROCEDURAL HISTORY

Kelly Havner was born with a limb reduction defect consisting of missing fingers and thumb on her right hand. During the pregnancy with Kelly, Marilyn Havner took the anti-nausea prescription medication, Bendectin, which is composed of doxylamine succinate (an antihistamine) and pyridoxine hydrochloride (vitamin B-6). This drug was manufactured in the United States from 1956 to 1983 by Merrell.

On Kelly's behalf, the Havners filed a product liability action against Merrell asserting that the birth defect was caused by Mrs. Havner's ingestion of Bendectin during pregnancy. The Havners advanced liability theories based on negligence, defective design, and defective marketing. The trial was bifurcated with liability and compensatory damage issues being resolved by the jury prior to the presentation of any evidence on punitive damages. Both phases of the proceeding were presented to the same twelve jurors. Ten jurors assessed liability and actual damages in phase one. In phase two, a different ten of the same twelve jurors found Merrell grossly negligent and assessed punitive damages. Merrell moved for judgment notwithstanding the verdict, to set aside the jury findings, and for a new trial. Those motions were denied. The trial court reduced the punitive damage award to four times the compensation award and entered judgment for the Havners.

"NO EVIDENCE" POINT

Liability Standard

In product cases involving either alleged negligence or design and marketing defects, a plaintiff must prove that the defective product was a producing cause of the injuries suffered. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex.1984); American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 657 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.). Producing cause has been properly defined as an efficient, exciting, contributing cause which, in a natural sequence, produced the injuries complained of. Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975); American Cyanamid Co., 732 S.W.2d at 657.

In its first point of error, Merrell asserts that there is no evidence of probative value on the essential element of producing cause. Merrell contends that the case presented by the Havners is fatally defective because there is no evidence that the drug, Bendectin, causes human birth defects in general, or limb reduction defects in particular. Further, no evidence was offered, asserts Merrell, that Mrs. Havner's ingestion of Bendectin during her pregnancy was the producing cause of Kelly's deformed right hand.

Standard of Review

In reviewing a "no evidence" point concerning producing cause of injury, only the evidence and inferences which tend to support the finding of the jury will be considered. All evidence or inferences contrary to the jury finding will be disregarded. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). See also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (1994). In this case, therefore, only the evidence and inferences which support the jury's finding that Bendectin caused Kelly Havner's birth defect will be considered. If there is any evidence of probative force to support the finding of the jury, the "no evidence" point must be overruled. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). However, "when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 n. 3 (Tex.1993).

Expert Testimony Required

The issue of causation was submitted to the jury, over appellant's objection. The trier of fact is generally allowed to decide the issue of causation in the following cases: (1) when general experience and common sense will enable a layman to fairly determine the causal relationship between the event and the condition or injury; (2) when there is a scientific principle, a sharp categorical natural law, which theorizes that a result is always directly traceable back to a particular cause; ¹ and, (3) when the reasonable probability of a causal relationship is shown by expert testimony. Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970); American Cyanamid Co., 732 S.W.2d at 657. It was undisputed that in a majority of limb reduction birth defects, isolation of the cause has eluded the determined efforts of even the brightest scientific minds. Therefore, in this case, a lay jury is ill-equipped to determine causation armed only with general experience and common sense. So too, birth defects of this type are not the subject of a sharp categorical natural law, nor are they usually traceable back to a particular cause. Neither is this the usual drug liability case where the product is known to produce certain effects under particular circumstances, and the inquiry is merely whether those circumstances are present. Nor is this an instance where the injurious nature of the product has become apparent after the plaintiff's use and the inquiry is whether the manufacturer knew or should have known of the risk at an earlier date. No causal link has been firmly established between Bendectin and human birth defects. Applicable here is the statement made by the United States Court of Appeals for the Second Circuit when it affirmed a summary judgment for the herbicide manufacturer in the Agent Orange litigation:

This is not a case in which a hazard is known to have existed in hindsight and the issue is whether the defendant had sufficient knowledge of it at an earlier time to trigger an obligation to inform. Existence of hazard remains unproven to this date.

In re Agent Orange, 818 F.2d 187, 193 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932. This case, therefore, falls into the third category where causation must be proved, if at all, by scientific expert testimony as to the reasonable probability of that causal link. Contrary to appellees' assertions, lay testimony is legally insufficient to establish cause in this case. See Lenger, 455 S.W.2d at 706; American Cyanamid Co., 732 S.W.2d at 657.

Reasonable Probability

To constitute proof, the expert testimony must establish the "reasonable probability" of a causal connection between Mrs. Havner's ingestion of Bendectin and Kelly's birth defect. See Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199, 202 (Tex.1980). "Reasonable probability" has been defined as: "testimony predictive of what will happen in the future ... results reasonably to be anticipated." Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966).

[T]his probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury ... In the absence of reasonable probability, the inference of causation amounts to no more than conjecture or speculation.

Schaefer, 612 S.W.2d at 202. "Proof of mere possibilities will not support the submission of an issue to the jury." Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). While reasonable inferences from the evidence are permissible,

a possible cause only becomes "probable" when in the absence of other reasonable causal explanations it becomes more likely than not that the injury was a result of its...