Wilson By and Through Wilson v. Merrell Dow Pharmaceuticals Inc.

• Decision Date: 08 January 1990
• Docket Number: No. 88-1058,88-1058
• Citation: 893 F.2d 1149
• Parties: 29 Fed. R. Evid. Serv. 427 Brent Ryan WILSON, an infant By and Through his natural guardians and parents, Susan and Ted WILSON; Susan Wilson and Ted Wilson, individually, Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1149

893 F.2d 1149

29 Fed. R. Evid. Serv. 427

Brent Ryan WILSON, an infant By and Through his natural guardians and parents, Susan and Ted WILSON Susan Wilson and Ted Wilson individually, Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS INC., Defendant-Appellee.

No. 88-1058.

United States Court of Appeals Tenth Circuit.

Jan. 8, 1990.

Barry J. Nace, Washington, D.C. (Don L. Dees, Tulsa, Okl., with him on the brief) for plaintiffs-appellants.

Robert L. Dickson of Dickson, Carlson & Campillo, Santa Monica, Cal. (George E. Berry and Robert M. Dato of Dickson, Carlson, & Campillo, Santa Monica, Cal., and Dan A. Rogers and Douglas W. Golden of Rogers, Honn & Associates, Tulsa, Okl., were on the brief) for defendant-appellee.

Before HOLLOWAY, Chief Judge, HENLEY ^* and EBEL, Circuit Judges.

HENLEY, Senior Circuit Judge.

Brent Ryan Wilson, along with his parents, Susan and Ted Wilson, brought a diversity suit against Merrell Dow Pharmaceuticals Inc. (Merrell Dow), alleging that Bendectin, a drug manufactured by Merrell Dow's predecessor Richardson-Merrell, Inc. ¹ and prescribed for Mrs. Wilson to alleviate morning sickness during her pregnancy with Brent, caused him to be born missing one finger on each hand. The Wilsons alleged claims of products liability, fraud and misrepresentation, breach of express and implied warranty, strict liability, and negligence. After a three-week trial in which both parties presented expert witnesses, the jury returned a general verdict in favor of Merrell Dow.

The Wilsons now appeal the district court's ² judgment entered on that verdict. They contend that the district court erred in (1) declining to give a jury instruction noting the failure of defense counsel to call an expert witness who had been expected to testify for Merrell Dow; (2) allowing defense counsel to tell the jury that the absent witness was equally available to the plaintiffs; (3) admitting into evidence Merrell Dow's "sales charts," which compared the rate of birth defects in the general population with the number of Bendectin tablets distributed and the number of Bendectin new therapy starts; and (4) failing to grant the Wilsons' motion for judgment notwithstanding the verdict or a new trial. We affirm.

I.

Merrell Dow's counsel told the jury during his opening statement that Dr. Burhan Say, a geneticist, would testify that Brent's birth defect was a genetic condition and was thus not produced by Mrs. Wilson's ingestion of Bendectin. After Merrell Dow completed presenting all of its evidence without calling Dr. Say to the witness stand, the Wilsons' counsel requested that the district court give a missing witness instruction regarding Dr. Say. The district court declined to do so, suggesting instead that the plaintiffs' attorney simply point out in his closing argument that Merrell Dow had failed to call Dr. Say as promised. The Wilsons' counsel followed this suggestion and argued to the jury that Dr. Say's nonappearance indicated that his testimony would have been adverse to Merrell Dow. Merrell Dow's attorney then responded in his closing argument by asserting that the Wilsons also could have called Dr. Say as an expert witness but had not even attempted to subpoena him, and that therefore nothing should be inferred from Dr. Say's failure to appear.

In their appeal the Wilsons contend that the district court should have given a jury instruction noting the failure of Dr. Say to testify. They also claim that it was improper for the district court to allow Merrell Dow's attorney to argue to the jury that Dr. Say was equally available to testify for the Wilsons.

In reviewing the district court's decisions to not give the requested missing witness instruction and to allow defense counsel's comment during closing argument, this court recognizes that those decisions rest largely within the trial judge's discretion. See, e.g., United States v. Sutton, 732 F.2d 1483, 1492 (10th Cir.1984) ("A trial court has discretion to give or refuse to give a missing witness instruction."), cert. denied, 469 U.S. 1157, 105 S.Ct. 903, 83 L.Ed.2d 919 (1985); Chicago College of Osteopathic Medicine v. George A. Fuller Co., 719 F.2d 1335, 1352-53 (7th Cir.1983) ("Questions as to the propriety of comment by counsel in [closing] argument upon the failure to produce a witness rest largely in the discretion of the trial court.").

Courts have recognized four factors that must be present before a jury can be instructed to infer that a missing witness would have testified adversely to a party: (1) the party must have the power to produce the witness, see, e.g., Sutton, 732 F.2d at 1492; 2 J. Wigmore, Evidence in Trials at Common Law Sec. 286 (J. Chadbourn rev. ed. 1979 & Supp.1989); (2) the witness must not be one who would ordinarily be expected to be biased against the party, see id. Sec. 287, at 202 & n. 1; (3) the witness's testimony must not be "comparatively unimportant, or cumulative, or inferior to what is already utilized" in the trial, see id. Sec. 287, at 202-03 (emphasis omitted); and (4) the witness must not be equally available to testify for either side, see, e.g., Sutton, 732 F.2d at 1492; Quad Constr., Inc. v. William A. Smith Contracting Co., 534 F.2d 1391, 1394 (10th Cir.1976); 2 J. Wigmore, supra, at Sec. 288. ³ The party requesting a missing witness instruction adverse to the other side has the burden to demonstrate that these criteria are satisfied. See, e.g., Sutton, 732 F.2d at 1492 (criminal defendant has burden to show that there are missing government witnesses); Jones v. Otis Elevator Co., 861 F.2d 655, 659-60 (11th Cir.1988) (requesting party must establish that potential witness is unavailable and that potential testimony is relevant and noncumulative).

Factors one and two appear to be present in this case. Merrell Dow's counsel's comment in his opening statement about Dr. Say indicated that Merrell Dow had the power to call Dr. Say to testify and that this testimony was not expected to be biased against the defendant. It is not clear from the record or briefs, however, whether criteria three and four were met here.

The Wilsons point out that without Dr. Say's testimony, Merrell Dow had no geneticist to testify. The plaintiffs, in contrast, called three geneticists, all of whom concluded that the birth defect was not genetically induced. Thus, one might argue that Dr. Say's testimony was comparatively important because it was the only testimony from a geneticist available to Merrell Dow to rebut the conclusions of the Wilsons' geneticists. On the other hand, one might reasonably determine that Dr. Say's testimony was not so essential for Merrell Dow's defense that Dr. Say's failure to testify should be accorded any evidentiary significance. Merrell Dow presented experts from other scientific fields, whose testimony will be discussed later in this opinion, who testified that Bendectin did not cause birth defects. The Wilsons' geneticists themselves acknowledged that many birth defects are genetic in nature and that Brent's birth defect was of a type that had occurred in the human population long before the introduction of Bendectin into the market. In light of the other evidence supporting Merrell Dow's position, it was within the discretion of the district court to conclude that Dr. Say's testimony was cumulative and had relatively insignificant probative value.

Moreover, the district court acted within its discretion in determining that Dr. Say was equally available to both parties. The Wilsons argue that it was impossible for them to call Dr. Say as a witness because of Dr. Say's relationship with Merrell Dow. That may be true, but the Wilsons did not even attempt to subpoena Dr. Say, nor did their counsel explain adequately in their appellate brief how Dr. Say's relationship with Merrell Dow prevented the Wilsons from calling Dr. Say to testify. The district court could have properly concluded that the plaintiffs did not meet their burden of demonstrating that Dr. Say was either legally or practically unavailable to testify for them. See United States v. Montoya, 676 F.2d 428, 431 (10th Cir.1982) (holding that district court did not abuse its discretion in refusing criminal defendant's request for a missing witness instruction regarding a government informant when defense counsel made only one attempt to meet with informant and did not attempt to subpoena him), cert. denied, 459 U.S. 856, 103 S.Ct. 124, 74 L.Ed.2d 108 (1983).

We thus conclude that the district court did not abuse its discretion in declining to give a missing witness instruction. Similarly, it was permissible for the district court to allow defense counsel's comment in closing argument that Dr. Say was equally available to testify for the Wilsons. When an absent witness is equally available to both parties, either party is open to the inference that the missing testimony would have been adverse to it. See 2 J. Wigmore, supra, at Sec. 288, at 208 & n. 4 (listing cases supporting the "more logical view ... that the failure to produce [a witness equally available to both sides] is open to an inference against both parties, the particular strength of the inference against either depending on the circumstances") (emphasis in original). In these circumstances, comment by both sides in closing argument regarding the missing witness is appropriate. See C. McCormick, McCormick's Handbook of the Law of Evidence Sec. 272, at 657-58 (E. Cleary ed. 1972). If one side makes "an argument on failure to produce [a witness that] is fallacious, the remedy is the usual one, namely the answering argument and the jury's good sense." Id. Sec. 272, at 659.

II.

Next we consider whether the district court properly admitted into evidence Merrell Dow's two sales charts containing graphs plotting the rate of birth defects in the general population, the number of Bendectin tablets distributed, and the number of Bendectin new therapy starts. ⁴

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