Wilson v. Merrell Dow Pharmaceuticals Inc., 90-5257
| Decision Date | 10 March 1994 |
| Docket Number | No. 90-5257,90-5257 |
| Citation | 20 F.3d 379 |
| Parties | Charles WILSON; Patricia Wilson, as parents and next friend of Brian Wilson, a minor, and Charles and Patricia Wilson, individually, Plaintiffs-Appellees, v. MERRELL DOW PHARMACEUTICALS INC., a subsidiary of Dow Chemical Company, Defendant-Appellant, and Merrell National Laboratories, Inc.; Merrell National Laboratories, Division of Richardson-Merrell, Inc.; Dow Chemical Company; Richardson-Merrell, Inc., and subsidiaries thereof, Defendants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court, Northern District of Oklahoma; James O. Ellison, Chief Judge.
Before EBEL and HOLLOWAY, Circuit Judges, and OWEN, * District Judge.
This diversity action was brought by Charles Wilson and Patricia Wilson, as parents and next friends of Brian Wilson, a minor, and Charles and Patricia Wilson, individually. It sought damages against Merrell Dow Pharmaceuticals Inc., inter alia, as manufacturer and distributor of Bendectin, a medication for control of morning sickness. Dow Chemical Company was also sued, as a parent corporation, and a motion by that defendant for summary judgment was granted. However, a similar motion by Merrell Dow Pharmaceuticals Inc. for summary judgment was denied, the district court having found that substantial scientific evidence exists to support the conflicting arguments of the parties regarding causation of birth defects of Brian Wilson, allegedly caused by Bendectin ingestion by his mother.
The district court found that there was not a comprehensive response by the plaintiffs to Dow Chemical Company's motion for summary judgment, and that the motion of Dow Chemical Company was well taken. However, in view of the finding about conflicting scientific evidence, the motion of Merrell Dow Pharmaceuticals Inc. for summary judgment was overruled.
A petition for an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) with respect to the denial of its summary judgment motion was filed by Merrell Dow Pharmaceuticals Inc. in the district court, and was granted by that court. The grant of that appeal concerned issues, as defined by the district court, of whether plaintiffs' evidence on whether Bendectin can cause birth defects in humans, specifically, limb defects, is sufficient and/or admissible to create a question for a jury. Finding substantial grounds for a difference of opinion on the issue, and that an immediate appeal would materially advance the ultimate termination of the litigation, the interlocutory appeal was granted. This court entered an order permitting such appeal in accordance with 28 U.S.C. Sec. 1292(b).
After subsequent briefing and argument of the instant appeal before ...
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Wilson v. Merrell Dow Pharmaceuticals, Inc.
...appeal of its order denying Merrell Dow's motion for summary judgment. On March 10, 1994, this court, in Wilson v. Merrell Dow Pharm., Inc., 20 F.3d 379 (10th Cir.1994) vacated the district court's order of March 2, 1990, and remanded the case to the district court for further proceedings i......