Payton v. Abbott Labs, 85-1247
| Decision Date | 27 December 1985 |
| Docket Number | No. 85-1247,85-1247 |
| Citation | 19 Fed.R.Evid.Serv. 1077,780 F.2d 147 |
| Parties | , 19 Fed. R. Evid. Serv. 1077, Prod.Liab.Rep.(CCH)P 10,924 Brenda PAYTON, et al., Plaintiffs, Appellees, v. ABBOTT LABS, et al., Defendants, Appellees, Eli Lilly and Company, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Marshall Simonds, P.C. with whom James J. Dillon, Loretta M. Smith, and Goodwin, Procter & Hoar, Boston, Mass., were on brief for defendant, appellant.
David J. Fine with whom Gail Strassfeld, Jeanne Baker, and Silverglate, Gertner, Baker, Fine & Good, and Albert P. Zabin, Marcia J. Allar, and Schneider, Reilly, Zabin, Connolly & Costello, P.C., Boston, Mass., were on brief for plaintiffs, appellees.
Before BOWNES and BREYER, Circuit Judges and CEREZO, * District Judge.
Defendant Eli Lilly and Co. (Lilly) appeals from a judgment below awarding plaintiff Andrea Goldstein $50,000 for injuries she claims were caused by a drug, diethylstilbestrol (DES), ingested by her mother while Andrea was in utero. A separate claim of Mrs. Goldstein's husband, Paul, for loss of consortium was denied by the jury and no appeal has been taken from it.
In August 1977, Andrea and Paul Goldstein were added as plaintiffs to the case of Payton v. Abbott Laboratories, which had begun in April 1976. This case was begun as a class action and was conditionally certified, but subsequently the plaintiff class was decertified and the plaintiffs' suits were separated for individual trials.
The issues are: (1) whether the district court erred in striking one of the jury's special findings and not ordering a new trial; (2) whether there were inconsistencies in the jury's answers to interrogatories sufficient to require a new trial; (3) whether alleged errors in the jury charge require a new trial; (4) whether the alleged failures of proof on causation and/or proof that defendants manufactured the DES taken by plaintiff's mother require reversal and judgment for the defendant.
In the early 1950's, when plaintiff Andrea Goldstein was born, DES was sometimes prescribed according to the Smith & Smith regimen 1 for pregnant women thought to be in danger of miscarriage. Andrea Goldstein's mother, Mrs. Schwartz, besides having one healthy baby boy also had two miscarriages before becoming pregnant with Andrea. Apparently because of this history of prior miscarriages, Dr. Ko, a resident at the New England Hospital where Mrs. Schwartz was given prenatal care, prescribed the Smith & Smith DES regimen for her beginning in the ninth week of pregnancy. The regimen provided for continually increasing amounts of DES to be taken by the expectant mother, beginning with a daily dose of 5 mg. in the seventh and eighth weeks of pregnancy, and increasing by 5 mg. every other week until the fifteenth week, after which it was increased by 5 mg. each week until the thirty-fifth and final week when the daily dosage was 125 mg. In order to make the daily ingestion of the increasing amounts of the drug easier for the expectant mother, it was recommended that 5 mg. tablets be taken in the seventh through the fourteenth weeks and 25 mg. tablets be taken thereafter. Although Mrs. Schwartz could not remember the brand of DES she took and the original prescription could not be found, she did remember she had had the prescription filled at Trachtenberg & Meyers Pharmacy, and that the first pills she took (the 5 mg. ones) were red and the second ones (the 25 mg. ones) were white.
Andrea was born, an apparently healthy child, in 1953. It was not until the 1970's when fears began to be publicly expressed that DES might be causing cancer in women exposed to it in utero that Andrea learned that she had been exposed to it while in her mother's womb. She was examined by a physician for potential DES-related problems and it was discovered that she had certain vaginal abnormalities, one called adenosis and the other a cervical hood, which had been identified as possible precursors to cervical cancer in DES-exposed women. Andrea then began to see a gynecologist regularly so that he could monitor the condition of her reproductive organs and examine any changes for signs of cancer.
In 1976, Andrea became pregnant in her left fallopian tube. This ectopic pregnancy made the removal of the tube necessary. While performing the operation, her physician discovered that Andrea's remaining fallopian tube and her uterus were deformed. The uterus in particular was very small and oddly shaped. Her physician felt these problems were also related to DES. Desiring to have her own children, Andrea also began seeing a physician specializing in fertility problems. Many tests, internal pelvic examinations, X-rays and an attempt to stretch her uterus followed. In 1978, Andrea had a normal uterine pregnancy, but the pregnancy was aborted within a few weeks due to a miscarriage. More tests, examinations and X-rays followed. In 1980, she became pregnant again, this time in her remaining right fallopian tube. Despite her doctors' efforts to save it, the tube had to be removed. Both tubal pregnancies caused severe pain. After the second ectopic pregnancy, Andrea became infertile. Her doctor referred her to an in vitro fertilization clinic but said there was very little likelihood her malformed uterus could carry a child to term even if she were to become pregnant by in vitro fertilization.
The case was submitted to the jury as a negligence claim. 2 The issues below were whether Lilly was negligent in marketing DES or in failing to have an adequate warning accompany the drug, whether the white 25 mg. DES tablets were manufactured by Lilly and whether they were the cause or a significant contributing cause of plaintiff's two ectopic pregnancies, uterine miscarriage, malformed uterus and adenosis and cervical hood. The trial court made an unchallenged finding that, because of insufficiency of evidence, the jury could not find that the red 5 mg. DES tablets plaintiff's mother took while she was pregnant with plaintiff were manufactured by Lilly. Liability, therefore, could only be based on the 25 mg. pills. The case went to the jury in the form of special interrogatories pursuant to Federal Rule of Civil Procedure 49(a).
The jury found three injuries, causation and negligence. It awarded damages in the amount of $50,000. The special interrogatories and answers thereto are as follows:
A. Claim of Andrea Goldstein.
1. Was the DES taken by the plaintiff's mother in 1953 probably a cause of
YES
If the jury has answered "No" to all of the above, that is the end of the case. If the jury has answered "Yes" to any of the above, proceed to question 2.
2. With respect to any injury to the plaintiff found by the jury to have been caused by her mother's use of DES, is it probable that white 25 mg. DES pills were a contributing cause of such injury?
If the answer to question 2 is "No", that is the end of the case; if "Yes", proceed to question 3.
3. Is it probable that the white DES pills found by the jury to have been a contributing cause of the plaintiff's injuries were manufactured by the defendant Eli Lilly & Co.?
If the answer to question 3 is "No", that is the end of the case; if "Yes", proceed to questions 4, 5 and 6.
4. Has the plaintiff proved by a preponderance of the evidence that the defendant was negligent in 1953 in distributing DES as a drug to be used in treating certain accidents of pregnancy?
If the answer is "Yes", proceed directly to question 6. If the answer is "No", proceed to question 5.
5. Has the plaintiff proved by a preponderance of the evidence that the defendant negligently failed to give adequate warning to prescribing doctors of the potential effect of DES on the unborn children of mothers who used it, which if given, would probably have prevented the injuries to the plaintiff?
6. What damages do you assess for the injuries claimed by the plaintiff which you find were caused by white DES pills manufactured by Eli Lilly & Co.?
The defendants moved for judgment n.o.v. and alternatively for a new trial. The district court determined the jury finding that the 1976 ectopic pregnancy was caused by DES (interrogatory 1(a) ) to be against the clear weight of the evidence and informed plaintiff that unless she agreed to strike the finding he would grant the defendant's motion for a new trial. Plaintiff agreed under protest and judgment was entered for plaintiff in the full amount of the damages found by the jury.
Defendant appeals the denial of its motions for directed verdict, judgment n.o.v. or a new trial. It claims that it is entitled to a new trial because the jury finding that DES caused the 1976 ectopic pregnancy, struck as erroneous, infected the whole verdict, and that striking it and entering judgment for the entire amount of damages found by the jury did not cure the error but compounded it. Defendant also claims grounds for a new trial in purported inconsistencies in the jury's answers to interrogatories and in errors in the trial court's charge to the jury. Defendant asserts that there should be reversal and judgment entered for it because there was no expert testimony that the 25 mg. DES tablets were the probable cause of any injury. It challenges the qualifications of two of plaintiff's expert witnesses and also asserts that their testimony only amounted to an opinion that there was a "possibility" DES caused the injuries found by the jury, not a "probability" as required by Massachusetts law. Defendant...
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