Daubert V. Merrell Dow Pharmaceuticals

Abstract

Daubert and other minors, suffered limb reduction birth defects; they claim the defects were caused when their mothers ingested drugs manufactured by the Defendant, Merrell Dow Pharmaceuticals, Inc. (Defendant), while they were pregnant. When the United States Supreme Court handed down its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., it began a wide-ranging debate about the rules that govern the admissibility of expert testimony in both state and federal trials. The courts of nineteen states have adopted Daubert, and those of eleven, including Florida, have apparently rejected it.

There were two minors that brought suit against Merrell Dow Pharmaceuticals, claiming they suffered limb reduction birth defects. This appeal deals with an evidentiary question:  whether certain expert scientific testimony is admissible to prove that Bendectin caused the plaintiffs' birth defects because their mothers had taken Bendectin, a drug prescribed for morning sickness to about 17.5 million pregnant women in the United States between 1957 and 1982.

Jose F. Cordero stated, “They know birth defects occur in 2-3% of births, whether or not the expectant mother has taken Bendectin. For the most part, they do not know how birth defects come about". In the circumstances of this case,, it was determined that the interests of justice and judicial economy will best be served by deciding those issues that are properly before them and offering guidance on the application of the Daubert standard in this circuit.

The admissibility of Merrell's expert's affidavit did not matter; the question is whether plaintiffs adduced enough admissible evidence to create a genuine issue of material fact as to whether Bendectin caused their injuries.  Since the plaintiffs bear the ultimate burden of proof on causation, Merrell had only to point to the absence of a genuine issue of material fact; it wasn't required to produce any evidence at all.

The plaintiffs not only fail to mention the many other exhibits offered by Merrell, they also misunderstand the moving party's burden on summary judgment.   According to the plaintiffs, they were not required to come forward with any evidence to survive summary judgment because the affidavit of Merrell's expert was itself inadmissible under Daubert; the burden never shifted to plaintiffs to demonstrate a genuine issue as to causation.

While plaintiffs' scientists are all experts in their respective fields, none claims to have studied the effect of Bendectin on limb reduction defects before being hired to testify in this or related cases. We have examined carefully the affidavits proffered by plaintiffs' experts, as well as the testimony from prior trials that plaintiffs have introduced in support of that testimony, and find that none of the experts based his testimony on preexisting or independent research.

The failure to make any objective showing as to admissibility under the first prong of Rule 702 would also fatally undermine the testimony of plaintiffs' other experts, but for the peculiar posture of this case. For instance, plaintiffs' epidemiologists might validate their re-analyses by explaining why they chose only certain of the data that was available, or the experts relying on animal studies might point to some authority for extrapolating human causation from teratogenicity in animals. In assessing whether the proffered expert testimony “will assist the trier of fact” in resolving this issue, we must look to the governing substantive standard, which in this case is supplied by California tort law.

Here, the pertinent inquiry is causation. In elucidating the second requirement of Rule 702, Daubert stressed the importance of the “fit” between the testimony and an issue in the case:  “Rule 702's ‘helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” In the case of birth defects, carrying this burden is made more difficult because we know that some defects-including limb reduction defects-occur even when expectant mothers do not take Bendectin, and that most birth defects occur for no known reason.

Modern tort law permits such proof, but plaintiffs must nevertheless carry their traditional burden; they must prove that their injuries were the result of the accused cause and not some independent factor.

Plaintiffs' experts testify that Bendectin is a teratogen because it causes birth defects when it is tested on animals, because it is similar in chemical structure to other suspected teratogens, and because statistical studies show that Bendectin use increases the risk of birth defects.  Plaintiffs do not attempt to show causation directly; instead, they rely on experts who present circumstantial proof of causation. Because the background rate of limb reduction defects is one per thousand births, plaintiffs must In the case of birth defects, carrying this burden is made more difficult because we know that some defects-including limb reduction defects-occur even when expectant mothers do not take Bendectin, and that most birth defects occur for no known reason.

Modern tort law permits such proof, but plaintiffs must nevertheless carry their traditional burden; they must prove that their injuries were the result of the accused cause and not some independent factor.   Plaintiffs' experts testify that Bendectin is a teratogen because it causes birth defects when it is tested on animals, because it is similar in chemical structure to other suspected teratogens, and because statistical studies show that Bendectin use increases the risk of birth defects.

Plaintiffs do not attempt to show causation directly; instead, they rely on experts who present circumstantial proof of causation. California tort law requires plaintiffs to show not merely that Bendectin increased the likelihood of injury, but that it more likely than not caused their injuries. To evaluate the relationship between Bendectin and limb reduction defects, an epidemiologist would take a sample of the population and compare the frequency of birth defects in children whose mothers took Bendectin with the frequency of defects in children whose mothers did not.   That is, the study must show that children whose mothers took Bendectin are more than twice as likely to develop limb reduction birth defects as children whose mothers did not.

Reference Daubert v. Merrell Dow Pharnaceuticals, Inc. Retrieved 26 April 2013 from http://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/causation-in-