Raynor v. Merrell Pharmaceuticals Inc.

• Decision Date: 21 January 1997
• Docket Number: No. 95-7241,95-7241
• Citation: Raynor v. Merrell Pharmaceuticals Inc., 104 F.3d 1371, 323 U.S.App. D.C. 23 (D.C. Cir. 1997)
• Parties: , 46 Fed. R. Evid. Serv. 294, Prod.Liab.Rep. (CCH) P 14,859 Donald RAYNOR, Sr., et al., Appellants v. MERRELL PHARMACEUTICALS INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1371

104 F.3d 1371

323 U.S.App.D.C. 23, 46 Fed. R. Evid. Serv. 294,

Prod.Liab.Rep. (CCH) P 14,859

Donald RAYNOR, Sr., et al., Appellants v.MERRELL PHARMACEUTICALS INC., Appellee.

No. 95-7241.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 3, 1996.

Decided Jan. 21, 1997.

Appeal from the United States District Court for the District of Columbia(No. 83-cv03506).

Kenneth J. Chesebro, argued the cause for appellant.With him on the brief was Barry J. Nace, Washington, DC.

Walter A. Smith, Jr., Washington, DC, argued the cause for appellee.With him on the brief was Stephen G. Vaskovz.

Before: SILBERMAN, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

This appeal arises out of a personal injury claim filed by Donald Raynor, Jr. and his parents against Merrell Pharmaceuticals, Inc., alleging that Merrell's anti-nausea drug Bendectin, caused Raynor's birth defects.After a jury awarded $300,000 in compensatory damages, Merrell filed motions for judgment notwithstanding the verdict("JNOV") and for a new trial.The district judge granted the former based upon our decision inRichardson v. Richardson-Merrell, Inc., 857 F.2d 823(D.C.Cir.1988).On the first appeal of the judge's ruling, this court remanded to the district court for further consideration in light of the Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993).Griffin v. Richardson-Merrell, Inc., No. 93-7109, 1993 WL 483935(D.C.Cir.Nov.12, 1993)(per curiam).After analyzing the admissibility of plaintiffs' evidence using the Daubert factors, the district court confirmed its original judgment.

Rule 50

Plaintiffs argue that JNOV under Federal Rule of Civil Procedure 50(currently titled a "Judgment as a Matter of Law") is an improper remedy for evidentiary errors at trial.Rather, according to plaintiffs, the only appropriate remedy for errors in the admission of evidence is a motion for a new trial under Rule 59(a).On plaintiffs' view JNOV is reserved for cases where the evidence presented was of insufficient weight to raise an issue for the jury.

Although plaintiffs concede that they failed to raise this issue before the district court, they argue that our decision in Richardson, 857 F.2d at 823, made raising it futile.If this were the case, plaintiffs might conceivably benefit from the "supervening-decision doctrine," which allows us to consider issues not raised at trial where "the law was so well-settled at the time of trial that any attempt to challenge it would have appeared pointless," but where the law had changed in the appellant's favor between trial court's decision and appeal.United States v. Washington, 12 F.3d 1128, 1138-39(D.C.Cir.1994).

We assume arguendo that two post-Richardson circuit court decisions adopting the view that evidence may not be excluded on a JNOV motion, Douglass v. Eaton Corp., 956 F.2d 1339, 1343-44(6th Cir.1992);Jackson v. Pleasant Grove Health Care Center, 980 F.2d 692, 695-96(11th Cir.1993), could be "supervening decisions" of sufficient magnitude to trigger the doctrine of that name.¹But even with that assumption, Richardson fails to establish the sort of circuit rule required by Washington, i.e., one that would render "pointless" an objection to resting JNOV on an exclusion of evidence previously admitted.In fact, the Richardson court simply did not address the issue.

To be sure, the Richardson court upheld the grant of a JNOV motion in a case factually similar to this one, and the opinion, although it discusses the evidence's sufficiency, clearly rests on its inadmissibility.Richardson, 857 F.2d at 825 n. 9.As plaintiffs acknowledge, however, the issue of whether JNOV can be granted to redress errors of admissibility "was neither briefed ... nor discussed, in Richardson."Rep. Br.at 3, quoting Appellants' Memorandum in Opposition to Motion for Summary Affirmance.Although the Richardson court upheld the JNOV motion, it neither considered, nor had implicitly to resolve, the question of whether such a motion was appropriate for admissibility errors.It therefore provides no holding on this question, and cannot justify plaintiffs' failure to object at trial.Thus they have waived their Rule 50 argument.

Of course, if Richardson did create binding law establishing the propriety of JNOV for admissibility errors, this panel would be bound by that precedent, despite the two intervening circuit court decisions that back plaintiffs' position.Moreover, the rule rejecting resolution of an evidentiary issue on a motion for JNOV rests on imputed reliance; if the evidence had been excluded in the course of trial, the offering party might have offered a substitute.SeeJackson, 980 F.2d at 696.Plaintiffs' failure to object strongly suggests the absence of any such reliance.

Daubert

Plaintiffs argue that the district court inappropriately deemed their expert testimony inadmissible.We review the district court's judgment for abuse of discretion.Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 567(D.C.Cir.1993)(district court has broad discretion regarding the admission or exclusion of expert testimony under Rule 702);see alsoLust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 596-97(9th Cir.1996)(abuse of discretion review applies to F.R.E. 702 ruling);Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318(7th Cir.1996)(same).

In Richardson this court held that similar evidence was inadmissible:

These three types of studies then--chemical, in vitro, and in vivo--cannot furnish a sufficient foundation for a conclusion that Bendectin caused the birth defects at issue in this case.Studies of this kind, singly or in combination, are not capable of proving causation in human beings in the face of the overwhelming body of contradictory epidemiological evidence.

857 F.2d at 830.Richardson was decided under Federal Rule of Evidence 703, which provides an exception to the hearsay rule for the facts and data underlying expert testimony:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

In reliance on Richardson, the district court initially found plaintiffs' evidence inadmissible under Rule 703.If we were to consider this case under Rule 703, nothing would compel us to deviate from our holding in Richardson.Plaintiffs make much of Ambrosini v. Labarraque, 966 F.2d 1464, 1468(D.C.Cir.1992)("Ambrosini I"), in which we distinguished Richardson in part on the ground that the expert in that case had conceded that the data was not the type upon which an expert would reasonably rely.See alsoAmbrosini v. Labarraque, 101 F.3d 129, 138(D.C.Cir.1996)(citing expert's concession as one distinguishing factor)("Ambrosini II").But the more critical distinction in Ambrosini was that whereas Bendectin had "been extensively studied and a wealth of published epidemiological data ha[d] been amassed, none of which has concluded that the drug is teratogenic,"id. at 138(quoting Richardson), the drug in question in Ambrosini, Depo-Provera, had not been the subject of such a wealth of studies.Plaintiffs ask us to distinguish Richardson and apply the two Ambrosini cases, pointing to the assertions of their expert (Dr. Thoman) that, contrary to the scientists whose work this court found dispositive in Richardson, see857 F.2d at 831(noting that no published work found statistically significant association between Bendectin and birth defects), it was reasonable to form an opinion as to causation without data statistically significant at the 95% confidence level.But nothing in the Ambrosini cases suggests that one expert's conclusory assertion of some lower threshold of statistical significance could undercut the force of the Bendectin studies found controlling in Richardson.SeeIn re Paoli Railroad Yd. PCB Litigation, 35 F.3d 717, 748(3d Cir.1994)(judge must make independent inquiry regarding reasonableness of reliance).

Plaintiffs argue, however, that our Rule 703 holding has no force in light of the Supreme Court's decision in Daubert.While Daubert creates no obvious bar to applying Rule 703 as we have done in the past, it leaves obscure the relation between that rule and the rule at issue in Daubert, Rule 702, which states that an expert may testify if the "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."The Daubert Court found Rule 702 the "primary locus" of the district court's obligation to screen scientific evidence presented by expert testimony, 509 U.S. at 589, 113 S.Ct. at 2794-95, but also instructed the judge to "be mindful of other applicable rules" such as Rule 703, id. at 595, 113 S.Ct. at 2797.Courts have begun to explore the relationship betweenRules 702 and 703 following Daubert.See, e.g., In re Paoli, 35 F.3d at 748(holding that Rule 703 is the equivalent to Rule 702's reliability requirement).We need not do so, however, because we find that plaintiffs' evidence is inadmissible under Rule 702.

The Court in Daubert directed federal courts first to determine whether the proffered expert's evidence is "scientific knowledge," which it said required consideration of the following: (1) whether the theory or technique can be (or has been) tested; (2) whether the theory or technique has been subject to peer review and publication; (3) the known or potential rate of error of the methodology; and (4) the general acceptance of the methodology.509 U.S. at 593-95, 113 S.Ct. at 2796-98.In addition, the court must conclude that the expert testimony will "assist the trier of fact to understand or determine a fact in issue."Id. at 592, 113 S.Ct. at 2796.

Plaintiffs contend that the...