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Daubert v. Merrell Dow Pharmaceuticals, Inc.

Citation: 25 ELR 20856
No. No. 90-5537, 43 F.3d 1311/(9th Cir., 01/04/1995) On remand

On remand from the U.S. Supreme Court, the court holds inadmissible under Fed. R. Evid. 702 expert testimony offered to prove that plaintiffs' mothers' ingestion of the drug Bendectin during pregnancy caused the plaintiffs to be born with limb-reduction birth defects. The court first refuses to remand the case to the district court to make the initial determination of admissibility under the Supreme Court's new standard of admissibility of scientific evidence under Rule 702 as articulated in Daubert v. Merrell Dow Pharmaceuticals, 23 ELR 20979 (1993). In the particular circumstances of this case, the interests of justice and judicial economy will best be served by deciding those issues that are properly before this court and offering guidance on the application of the Daubert standard in the Ninth Circuit. The court next rejects plaintiffs' claim that the burden of proof never shifted to them to demonstrate a genuine issue of causation to survive summary judgment in the district court. The question is whether plaintiffs adduced enough admissible evidence to create a genuine issue of material fact as to whether Bendectin caused their injuries.

The court then notes that under the Supreme Court's two-pronged test in Daubert, the court must first determine whether plaintiffs' experts' testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science. The court must then determine that the proposed testimony logically advances a material aspect of the proposing party's case. Noting that expert testimony based on research the expert has conducted independent of the litigation provides objective proof that the research comports with the dictates of good science, the court finds that none of the plaintiffs' experts based his testimony on preexisting or independent research. Although 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 case or related cases. Next noting that if the proffered expert testimony is not based on independent research, the party proferring it must come forward with other objective, verifiable evidence that the testimony is based on scientifically valid principles, the court finds that none of the plaintiffs' experts has published his work on Bendectin in a scientific journal or solicited formal review by his colleagues. The court holds that plaintiffs have made no showing that their experts have followed the scientific method as it is practiced by, at least, a recognized minority of scientists in their field. Plaintiffs rely entirely on the experts' unadorned assertions that the methodology they employed comports with standard scientific procedures. The court next holds that one expert's testimony that Bendectin caused the plaintiffs' birth defects is inadmissible as a matter of law under the first prong of Rule 702, because he offered no tested or testable theory to explain how he was able to eliminate all other potential causes of birth defects. Nor did he explain how he alone could state as a fact that Bendectin caused plaintiffs' injuries.

The court next notes that given the opportunity to augment their original showing of admissibility under the pre-Daubert standard, plaintiffs might be able to show that their other experts' methodology is based on sound scientific principles. The court holds, however, that these experts' testimony is inadmissible under the second prong of Rule 702. Under California tort law, plaintiffs must show not merely that Bendectin increased the likelihood of injury, but that it more likely than not caused their injuries and that their mothers' ingestion of Bendectin more than doubled the likelihood of their birth defects. Although plaintiffs' epidemiological experts make vague assertions that there is a statistically significant relationship between Bendectin and birth defects, none claims that ingestion of Bendectin during pregnancy more than doubles the risk of birth defects.

[The U.S. Supreme Court's decision is published at 23 ELR 20979.]

Counsel for Plaintiffs
Mary F. Gillick
Luce, Forward, Hamilton & Scripps
600 W. Broadway, Ste. 2600, San Diego CA 92107
(619) 236-1414

Counsel for Defendant
Hall R. Marston
Dickson, Carlson & Campillo
120 Broadway, Ste. 300, Santa Monica CA 90407
(310) 451-2273

Before Kozinski, O'Scannlain and McNamee,* JJ.: