Oxendine v. Merrell Dow Pharmaceuticals

• Decision Date: 11 August 1989
• Docket Number: No. 88-335.,88-335.
• Citation: 563 A.2d 330
• Parties: Mary Virginia OXENDINE, Appellant, v. MERRELL DOW PHARMACEUTICALS. INC., Appellee.
• Court: D.C. Court of Appeals

Page 330

563 A.2d 330

Mary Virginia OXENDINE, Appellant, v. MERRELL DOW PHARMACEUTICALS. INC., Appellee.

No. 88-335.

District of Columbia Court of Appeals.

Argued February 7, 1989.

Decided August 11, 1989.

Barry J. Nace, with whom Irving R.M. Panzer, Washington, D.C., was on the brief, for appellant.

Walter A. Smith, Jr., with whom Vincent H. Cohen, Alphonso A. Christian II, and William D. Nussbaum, Washington, D.C., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN and BELSON, Associate Judges.

ROGERS, Chief Judge:

Appellant Mary Oxendine appeals the grant of a motion under Super.Ct.Civ.R. 60(b)(6) vacating a 1983 judgment in her favor and granting a new trial.¹ The motions judge found that appellee Merrell Dow Pharmaceuticals, Inc., was entitled to relief although the trial had commenced five years earlier and this court had confirmed appellant's entitlement to judgment three years ago in Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100 (D.C. 1986) (Oxendine I). As his ground for vacating the judgment, the motions judge found that appellant's sole causation witness "grossly misrepresented" his credentials to such an extent that all his testimony on appellant's behalf became suspect. Appellant contends that the motions judge abused his discretion first, because the motion was not filed "within a reasonable time," as mandated by the rule, since appellee had knowledge of the alleged misrepresentations at least three years earlier, and second, because the alleged misrepresentations, which were not about the substantive issues in the case, dealt only peripherally with the expert's credentials and, thus, did not meet the standard of materiality required for vacating a judgment and granting a new trial. Appellant also contends that the findings of deliberate and intentional misrepresentations are unsupported by the record.

We hold that the motions judge did not abuse his discretion in finding that the motion to vacate was timely filed, but that he did err in vacating the judgment and granting a new trial.

I

Eight years ago appellant Mary Oxendine filed suit against appellee claiming that her mother's use of Benedectin, a drug manufactured and produced by appellee for use by pregnant women, had caused appellant's birth defects and deformities. Appellant's sole causation witness at the jury trial, Dr. Alan K. Done, was qualified as an expert witness without objection by appellee.² Dr. Done testified that Benedectin caused appellant's birth defects, basing his conclusion upon four types of scientific data which, he opined, taken together supported his conclusion. On May 27, 1983, the jury returned a verdict in favor of appellant, but on September 1, 1983, the trial judge, the Honorable Joseph M. Hannon granted appellee's motion for judgment notwithstanding the verdict. Appellant appealed and this court reversed, ordering that the jury verdict in favor of appellant be reinstated. Oxendine I, 506 A.2d at 1114-15. On July 15, 1986, more than three years after the original trial, appellee filed a motion under Rule 60(b)(6) claiming that Dr. Done had testified falsely at trial. Following an evidentiary hearing, Judge Peter H. Wolf³ granted the motion on February 11, 1988.

Judge Wolf found that Dr. Done knowingly and intentionally gave false testimony at trial in six areas, all of which, the judge conceded, related to Dr. Done's qualifications and not to any substantive issues in the case. Specifically, Judge Wolf found that Dr. Done testified at trial that:

(1) he was presently, on May 3 and May 11, 1983, a member of the Wayne State University Medical School faculty, when, in fact, he had submitted a letter of resignation from Wayne State dated April 24, 1983, to the Dean of the University, which the Dean accepted on April 29, 1983;

(2) he was, at the time of the trial, Chairman of the Formulary Committee at Children's Hospital, a hospital affiliated with the Wayne State Medical School, when, in fact, he had ceased in January 1982 to be Chairman and in March 1982 to be a member of the Committee;

(3) he was presently responsible for a fully-staffed laboratory at Children's Hospital which conducted ongoing research at his request and direction, even though Dr. Done had no laboratory assigned solely to him for the two years prior to his testimony and had conducted no research projects at any laboratory during that time;

(4) he was presently responsible for the care and treatment of patients, even though after his resignation he had no such responsibilities; and

(5) he was a Professor of Pharmacology and Toxicology at the Wayne State Medical School, when no such faculty rank existed and his correct title was Professor of Pediatrics and Pharmacology.

Judge Wolf also found that Dr. Done implied at trial that he was an expert in teratology (the study of birth defects and malformations) and epidemiology (the study of disease incidence and control in a population), but later stated at the evidentiary hearing that he was not an expert in those entire fields⁴

Regarding the knowledge of counsel for the parties, Judge Wolf found that neither counsel for appellant nor counsel for appellee had actual knowledge, or should have known, about Dr. Done's departure from the Wayne State Medical School prior to or during the trial, and that appellee's counsel did not have a duty to inquire about the circumstances of Dr. Done's departure when they first learned on May 27, 1983, the day of the jury verdict, that he was no longer affiliated with the University. Appellee's counsel did not inquire further about Dr. Done's status until after this court in Oxendine I reinstated the jury verdict in March 1986. Appellant's counsel first learned in August 1983 about Dr. Done's resignation in connection with their preparation for Dr. Done's deposition in another case in which he was testifying as an expert.

II

Timeliness of Rule 60(b)(6) Motion. Appellant contends that Judge Wolf abused his discretion in granting a Rule 60(b)(6)⁵ motion so long after appellee first learned of Dr. Done's resignation. Appellee responds that it moved for relief very promptly after it had an outstanding adverse judgment from which to seek relief. Judge Wolf agreed with appellee that there was no adverse judgment from which it could seek relief until Oxendine I reinstated the jury verdict in March 1986, and found that appellee filed its motion within a reasonable time thereafter in June 1986. We agree.

A motion under subsection (6) of Rule 60(b) must be made within a reasonable time, and what is reasonable depends upon the facts in each individual case. Profitt v. Smith, 513 A.2d 216, 218 (D.C. 1986). We will not reverse the trial court's decision that the motion was made within a reasonable time absent a clear abuse of discretion. Id.; Tribble v. American Mut. Ins. Co., 277 A.2d 659, 661 (D.C. 1971).

There is nothing in the record to suggest that appellee was aware of either the pre-trial change in Dr. Done's faculty status before the jury returned a verdict in appellant's favor, or of the reasons for Dr. Done's resignation before the trial judge granted appellee judgment notwithstanding the verdict. Hence, appellee could not have rectified the matter during the trial or grounded its motion for judgment notwithstanding the verdict on a claim that the verdict was obtained by fraud. Appellee learned on May 27, 1983, the date of the jury verdict, that Dr. Done was no longer affiliated with Wayne State University. This information, without more, was insufficient to give rise to a duty on appellee's behalf to conduct further discovery of Dr. Done's credentials after the jury had returned an adverse verdict. People leave universities for many reasons; leaving is not suspect in and of itself. Appellee still had no reason to believe that Dr. Done had not been affiliated with Wayne State at the time of his testimony or that the reasons for his departure were relevant to the outcome of the trial, as appellee now contends. This circumstance changed somewhat when appellee learned on October 5, 1983, shortly after the trial judge had granted its motion for judgment notwithstanding the verdict, that Dr. Done had ceased to be on the Wayne State faculty prior to his testimony at trial. But even then appellee did not know the reasons for Dr. Done's departure. Since appellee obtained this information after the entry of judgment in its favor, appellee had no further reason to inquire about Dr. Done's credentials, and any motion attacking the verdict would have been superfluous, being simply additional grounds on which appellee could argue that it was entitled to judgment.

Accordingly, we hold that Judge Wolf did not err in finding that appellee, upon learning in May 1983 of Dr. Done's change in status, acted timely under the circumstances in filing its Rule 60(b)(6) motion in July 1986, a little more than three months after Oxendine I was decided. See Transit Casualty Co. v. Security Trust Co., 441 F.2d 788, 790-91 (5th Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971); cf. 7 MOORE, FEDERAL PRACTICE, § 60.28[2] at 60-316 & n. 20 (1987).

III

Vacation of Judgment and Grant of a New Trial. Judge Wolf concluded that appellee was entitled to the "extraordinary relief [of vacation of a judgment and] a new trial after an appellate decision on the merits and almost five years after the original trial" because Dr. Done's "false testimony about his credentials" was "crucial" and created a "substantial danger that there was an unjust result" at the May 1983 trial. See Memorandum Order of February 11, 1986, at 3-5. Our review is limited to determining whether the judge abused his discretion. Profitt, supra, 513 A.2d at 218; Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159 (D.C. 1985). Such an abuse exists if the trial court applies an incorrect standard of law or grants relief on the basis of findings of fact...