Will v. Richardson-Merrell, Inc.

• Decision Date: 18 August 1986
• Docket Number: No. CV484-118.,CV484-118.
• Citation: 647 F. Supp. 544
• Parties: David and Barbara WILL, Individually, and as Parents and Natural Guardians of Paige Will, an infant, Plaintiffs, v. RICHARDSON-MERRELL, INC., a Delaware Corporation, Defendant.
• Court: U.S. District Court — Southern District of Georgia

647 F. Supp. 544

David and Barbara WILL, Individually, and as Parents and Natural Guardians of Paige Will, an infant, Plaintiffs, v. RICHARDSON-MERRELL, INC., a Delaware Corporation, Defendant.

No. CV484-118.

United States District Court, S.D. Georgia, Savannah Division.

August 18, 1986.

Thomas R. Taggart, Savannah, Ga., Barry Nace, Washington, D.C., for plaintiffs.

Frank C. Woodside, III and Janet G. Abaray, Dinsmore & Shohl, Cincinnati, Ohio and Ben L. Weinberg, Jr. and Marvin A. Devlin of Long, Weinberg, Ansley & Wheeler, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

Before the Court is plaintiffs' motion for a new trial or judgment notwithstanding the verdict ("JNOV"). Defendant opposes that motion.

I. Background

Paige Will was born with a birth defect. Each of the fingers and the thumb on her left hand is deficient. She is otherwise normal. Paige and her parents brought this action against Merrell-Dow contending that plaintiff's birth defect was caused by Mrs. Will's ingestion of Bendectin during a crucial period of Paige Will's gestation. Plaintiffs' claims were brought under theories of negligence and strict liability.

Defendant steadfastly denied that Bendectin was the cause of Paige's defect. In its defense, defendant maintained that Bendectin does not cause birth defects, that Paige Will's problem was genetic and alternatively, even if it could be shown that Bendectin causes defects, Mrs. Will did not ingest Bendectin during the crucial period of gestation. The crucial period in this case would have been early in the pregnancy during limb formation.

During an eight day trial, the Court heard extensive testimony regarding numerous studies in which researchers have considered the teratogenicity of Bendectin. At the conclusion of the trial, the jury deliberated approximately an hour and then returned a verdict for the defendant Merrell-Dow. Plaintiffs now file a motion for JNOV or new trial. In it they allege numerous errors. Those which merit discussion will be addressed below.

1. FDA Minutes

Plaintiff first contends that this Court erred in admitting into evidence plaintiffs' Exhibit 1223 which consists of certain FDA Advisory Committee Minutes.

At the outset the Court notes that at least three extensive conferences were held to resolve discovery disputes between these parties. For the most part, the parties reached certain agreements and settled the disputes among themselves. As the transcripts of those conferences will reveal, the Court was asked to rule on very few objections. Plaintiffs' first objection goes to a matter which the parties resolved among themselves. As defendant notes in its brief, the following exchange took place at the pre-trial conference:

MR. NACE: This is a letter that was sent by a doctor at the FDA to the company. Am I correct on that? So we know we're on the same wave length.

The FDA sent to the company, they have it. And this FDA doctor was being critical of the way the animal studies were reported. Then Dr. Gibson explains why she is wrong.

MR. WOODSIDE: Can I make a colloquy and observation? It may well be that we resolved this type of question before. It's my understanding that matters like this could come in because we also then could get into other FDA matters; goosey-gander rule.

MR. NACE: If relevant.

MR. WOODSIDE: If relevant, yes.

MR. NACE: There's no question of hearsay, you know.

MR. WOODSIDE: I think that was our understanding this morning.

THE COURT: Yes.

MR. NACE: If it's just hearsay, I agree, there should not be any objection.

Transcript of June 2, 1986 Pretrial, pp. 186-187.

Because the parties reached an agreement among themselves on the issue of the FDA Advisory Committee Hearings, the Court did not err in admitting them at trial.

2. Denial of Right to Present Rebuttal Witness

Although defendant had originally planned to conclude its case on Wednesday, June 24, it concluded its case on Tuesday morning at approximately 10:30. The Court inquired as to the length of plaintiffs' rebuttal testimony. Plaintiffs' attorney, Mr. Barry Nace, stated that he had a witness who was scheduled to come from California, a Dr. Alan Garfinkle, the following day. When the Court expressed its displeasure with delaying the trial, defense counsel noted that Nace had the witness's deposition testimony. Nace admitted he had deposition testimony, but requested additional time to prepare his presentation. Accordingly, the Court gave the parties the opportunity to reorganize and Mr. Nace the opportunity to consider his strategy and the manner in which he chose to proceed.

The Court met with the attorneys two hours later and in response to an inquiry from the Court regarding plaintiffs' expectations, Nace stated:

I think I'll make the Court very happy with what I'm going to say. We are not going to enter any testimony. We have two exhibits that we wish to put in rebuttal.

The fact that Nace made no attempt to even introduce the deposition testimony of Garfinkle suggests that Nace reconsidered his position and decided it was not as important as he might now suggest. Further, plaintiffs cannot now argue that they would have been prejudiced in not having the live witness in light of the fact that plaintiffs presented approximately 75% of their case by way of deposition testimony.

Finally, "under Fed.R.Evid. 403 the trial judge has broad discretion to exclude evidence in order to prevent needless presentation of cumulative evidence." Hopkins v. Britton, 742 F.2d 1308, 1311 (11th Cir. 1984). Overall, plaintiffs submitted a great deal of cumulative evidence and there is no indication that Garfinkle's testimony would not have been more of the same. Accordingly, plaintiffs' contention is without merit.

3. Jury Instructions

Plaintiffs contend this Court's instruction on the burden of proof was error. Plaintiffs object to the following instruction given by the Court:

The defendant does not have the burden of proof in this case. That means that the defendant does not have to prove that Paige Will's birth defects were caused by something other than Bendectin, nor does defendant have to offer any proof as to the cause of Paige Will's birth defects. Nevertheless, the defendant has offered evidence that Paige Will's birth defects were the result of a genetic condition. If you find that Paige Will's birth defects were caused by a genetic condition, or that it is just as probable that her birth defects were caused by genetic factors as by Bendectin, your deliberations must cease and your verdict must be for the defendant. If, however, you conclude under the theory of negligence or strict liability that Bendectin was more likely than not the cause of Paige Will's birth defect, then your verdict is for the plaintiffs and you must go on and consider the issue of damages.

Plaintiffs maintained at trial and continue to insist in their brief that under the above-noted instruction, plaintiffs had to prove that more likely or not Bendectin caused plaintiff's birth defect, while defendants were held to a lesser standard in proving that it was a genetic defect. Plaintiffs misconstrue the instruction.

Defendant did not set out to prove Paige Will's birth defect was, in fact, a genetic defect. Plaintiff had the burden to show that, more likely than not, Paige Will's defect was caused by her mother's ingestion of Bendectin. The instruction is an illustration of the quantum of proof sufficient to satisfy a verdict. Thus, if the jury found that it was just as probable that Paige's defect was caused by a genetic defect as by Bendectin, then it follows that plaintiffs have not shown, by a preponderance of the evidence, that Bendectin caused the defect. Of course, nor does it mean that defendant showed Paige had a genetic birth defect. It simply means that plaintiffs did not produce sufficient proof to tip the scale in their favor.

Although plaintiffs correctly assert that a defendant has the burden to plead and prove any affirmative defense, this simply was not an affirmative defense. An affirmative defense is established only when a defendant admits the essential facts of a complaint and sets up other facts in justification or avoidance. Metropolitan Publishers Representations, Inc. v. Arnsdorff, 153 Ga.App. 877, 267 S.E.2d 260 (1980). Here the essential facts were in dispute. Accordingly, plaintiffs' objection must fail.

4. Testimony of Dr. Norman Cowen

Plaintiffs also contend that this Court erred in excluding the opinion testimony of Dr. Norman Cowen. The relevant Federal Rules of Evidence provide as follows:

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. 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.

Although an expert witness's opinion testimony does not have to be based upon admissible evidence, such opinions must be based upon "`facts or data ... of a type reasonably relied upon by experts in the particular field....'" American Key Corp. v. Cole Nat. Corp., 762 F.2d 1569, 1580 (11th Cir.1985). "An expert's opinion that lacks any credible support does not create an issue of fact. Id. Crucial factors with respect to admissibility of `expert' testimony are the actual experience of the witness and the probative value of his opinion. Hughes v. Hemingway, 539 F.Supp. 130, 132 (E.D.Pa 1982). The qualification of an expert `is a matter peculiarly within...