RESPONDENT: Merrell Dow Pharmaceuticals, Inc.
LOCATION: City of Minneapolis
DOCKET NO.: 92-102
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 509 US 579 (1993)
ARGUED: Mar 30, 1993
DECIDED: Jun 28, 1993
Charles Fried - on behalf of the Respondent
Michael H. Gottesman - on behalf of the Petitioners
Facts of the case
Media for Daubert v. Merrell Dow Pharmaceuticals, Inc.
Audio Transcription for Oral Argument - March 30, 1993 in Daubert v. Merrell Dow Pharmaceuticals, Inc.
William H. Rehnquist:
We'll hear argument now in Number 92-102, William Daubert v. Merrell Dow Pharmaceuticals, Inc.--
Michael H. Gottesman:
Mr. Chief Justice and may it please the Court:
Jason Daubert was born missing a part of his right arm and lacking three fingers on one of his hands.
Eric Schuller was born missing one of his hands and with one leg shorter than the other.
In both instances their parents had taken Bendectin during the first 2 months of their pregnancy, the period in which the limbs are forming in the fetus.
There were no other indications of what might have accounted for these birth defects.
There were no genetic histories, or anything else of the like.
Each of these petitioners, with their parents, sued in the State courts of California alleging that the birth defects had been caused by Bendectin and alleging further that Merrell Dow, the sole manufacturer of Bendectin, had been culpable as a matter of State tort law in the manufacture and the distribution of the drug.
Among other things, the allegations are that Merrell had concealed the discoveries in its own laboratories of the effects that this drug had on animals that were tested and that it did not provide a warning consistent with what its own internal knowledge was of the propensities of the drug.
If the cases had remained in State court, it is clear that the expert testimony about causation that is the subject before you today, that that expert testimony would have been admissible as a matter of California law, and we have asserted... and the assertion is not challenged... that that evidence would also have been sufficient as a matter of California law to prove causation in this case.
But Merrell Dow removed both cases to Federal court on diversity grounds, where they were consolidated, and ultimately Merrell moved for summary judgment.
Its motion did not go to the question of culpability but solely to the question of causation, and its contention about causation was that Bendectin does not, in fact, cause birth defects in humans and that the petitioners would be unable to come forward with any admissible evidence that it does.
And they anticipated in the motion that the petitioners indeed would have experts who say that there is causation, but their contention was that testimony would not be admissible under the Federal Rules of Evidence, and in consequence the petitioners would have no admissible evidence to prove causation.
Now, the petitioners countered with affidavits and testimonies of eight experts, and I think it's important to note that these are experts several of whom are very highly credentialed and important scientists in their field.
One, Adrian Gross, has been the chief of toxicology for the Environmental Protection Agency and the chief of pathology at the Food and Drug Administration, in both roles responsible for making these very kinds of determinations about causation.
Another, Shanna Swan, is the chief epidemiologist for the State of California, responsible for determining the causes of birth defects, and on... we have described others in our brief.
Each of these eight experts in their affidavits and testimony expressed their opinion that it is likelier than not that Bendectin is a teratogen in humans at the normal therapeutic dose, that is, that it causes birth defects in humans, and each has recited that the methodology by which they arrived at that conclusion is the methodology which is regularly and commonly employed by scientists in their fields for making these kinds of determinations.
Indeed, as is shown, and as the two governmental experts testified, the methodology they used here is precisely that which they use every day in the performance of their governmental functions, and governmental regulations which we have cited in our briefs say the same thing.
Now, what is striking, and I think needs to be noticed, is that in this record there is nothing that challenges that the methodology that these eight experts employ is not the common and regular methodology for making these determinations.
Merrell did not, in response to these affidavits, make any record demonstration, did not cite a single person who claimed that this methodology was not appropriately employed, but both courts below, responding to and accepting the contention made by Merrell Dow, concluded that the proper measure for determining admissibility of expert testimony under the Federal Rules of Evidence is that which was prescribed in the Frye test, namely that the methods and the principles on which the experts' opinions are based must be those that are generally accepted in the scientific community, and applying that standard, both courts said that that had not been demonstrated in this case by the petitioner.
Now, that poses the question of statutory construction that this case presents.
Byron R. White:
Do you say that even under the Frye test this evidence would be admissible, or as we take the case it's either Frye applies or it doesn't?
Michael H. Gottesman:
Well, it was the contention below, the Ninth Circuit having already adopted the Frye case before this case, the petitioners were obliged to argue to the Ninth Circuit that this evidence is admissible even under the general acceptance test of Frye's--
Byron R. White:
What base... is that issue here?
Michael H. Gottesman:
--It is here only in the sense that the sole reason the Ninth Circuit gave for saying that this was not generally accepted was its conclusion, again not drawn from the record, that scientists will not accept the opinions of experts and their methodologies unless those experts have published and had peer review of the opinions that they proffer.
Now, we do contend that as an assertion of what constitutes general acceptance, even were that the test, that that is an incorrect and a... not only incorrect as a matter of fact, because the record shows that indeed scientists do, and a number of scientific organizations have cited that... that it is both incorrect as a statement of science and incorrect as a construction of the Federal rules.
That is, that Publication and peer review is not a prerequisite for the admission of scientific expert testimony under the Federal rules.
But Your Honor has shaped, I think, the way in which the statutory construction issue has to be addressed here.
The first question is whether the test that the Ninth Circuit applied is indeed the correct construction of this Federal statute.