Merrell Dow Pharmaceuticals Inc. v. Thompson

PETITIONER: Merrell Dow Pharmaceuticals Inc.
LOCATION: Superior Court of California, Riverside County

DOCKET NO.: 85-619
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 478 US 804 (1986)
ARGUED: Apr 28, 1986
DECIDED: Jul 07, 1986

Frank C. Woodside, III - on behalf of the petitioner
Stanley M. Chesley - on behalf of the respondents

Facts of the case


Media for Merrell Dow Pharmaceuticals Inc. v. Thompson

Audio Transcription for Oral Argument - April 28, 1986 in Merrell Dow Pharmaceuticals Inc. v. Thompson

Warren E. Burger:

We Will hear arguments next in Merrell Dow Pharmaceuticals against Larry James Christopher Thompson.

Mr. Woodside, you may begin whenever you are ready.

Frank C. Woodside, III:

Mr. Chief Justice, and may it please the Court, in order to understand the pendent and federal question jurisdictional issues involved in this matter, it is first necessary to briefly understand the history of this litigation.

Bendectin was a medicine manufactured by Merrell Dow Pharmaceuticals in the United States which was for the treatment of morning sickness in pregnant women.

There are several counterparts.

There is Canadian bendectin.

There was Debendox, which is an equivalent product manufactured in Scotland.

In this particular instance the petitioners are Scottish and Canadian individuals.

The litigation involving the American claims was originally consolidated pursuant to multi-district rules before the Honorable Carl Ruben in Cincinnati, Ohio.

At approximately the same time there were a series of cases filed by foreign plaintiffs which had originally been filed in the United States District Court for the Southern District of New York.

Those cases were transferred to 1404 transfer, Judge Briotz to Judge Ruben, after the cases had been... after the foreign cases had been transferred to the Southern District of Ohio, a motion to dismiss on the basis of forum non conveniens was renewed.

That motion was granted and subsequently approved by the United States Court of Appeals for the Sixth Circuit in a case called Ballen versus Richardson Merrell, Inc. Richardson Merrell, Inc., is a predecessor corporation to Merrell Dow Pharmaceuticals, and for all intents and purposes they are the same company.

After Judge Ruben had dismissed the foreign cases... there were a series of approximately 12 on a forum non conveniens basis... the instant cases were filed.

And they were filed in state court on September 1st, 1983.

As I have indicated previously, one of the plaintiffs is from Scotland, took Debendox, the other plaintiff was from Canada and took Canadian Bendectin.

In the complaints which these two plaintiffs filed, and by the way they are virtually identical and were filed by the same counsel, there are six causes of action asserted.

In these complaints there is implication that the drug which was used was the American version of Bendectin, and the American defendant, Merrell Dow Pharmaceuticals, Inc., the American company was the defendant.

The fourth cause of action states that the petitioner in the instant action is liable for violations of a breach of the Food, Drug, and Cosmetic Act, and that as a result it is presumptively negligent.

When those cases were filed, a removal petition was placed of record, and the cases were transferred to Judge Ruben in the Southern District of Ohio for the filing in Hamilton County, Ohio, in the Court of Common Pleas.

After they had been removed, two things happened.

One, the respondents filed a motion to remand, and the petitioner filed a motion to dismiss based upon the document and forum non conveniens.

Judge Ruben ruled that the right to relief asserted by the plaintiffs in their fourth cause of action depended upon application of the laws of the United States, and he then determined there was federal question jurisdiction, therefore overruled the motion of the respondent to remand the cases and then dismissed the cases on the basis of forum non conveniens.

After that dismissal, the cases were then appealed by the respondents to the United States Court of Appeals for the Sixth Circuit.

The Sixth Circuit ruled that... actually, what the Sixth Circuit did is, they did not take issue... I am not saying they agreed with it... they did not take issue with Judge Ruben's determination that there was a federal question.

Instead what they did was, they stated that the various causes of action, of which there were six, should be considered collectively.

Now, the first cause of action in these particular cases is a regular negligence cause of action which alleged that Merrell Dow was negligent in the design, manufacture, sale, and distribution of the product.

The Court of Appeals ruled that since the fourth cause of action stated... strike that.

The Court of Appeals ruled that the sixth... excuse me... the fourth cause of action was a negligence action, a negligence per se action in which the respondents had stated that there was negligence per se because of violation of the Food, Drug, and Cosmetic Act of this country.

The Court of Appeals said that since the first cause of action was also a negligence action, that... and since the respondents could recover fully and completely for negligence on that first cause of action, that because of this parallel pleading, it was not necessary for there to be a resolution of the substantial federal... question of federal law in order for the plaintiffs below to prevail on a negligence theory, and therefore it determined that there was no federal question of jurisdiction, and reversed the decision of Judge Ruben and remanded the cases back to the state court, and then we filed the petition for writ of certiorari.

Now, it is our position in this litigation that the plaintiff's right to relief under the fourth cause of action necessarily depends on the resolution of a substantial question of federal law.