Bernhardt ex rel. Bernhardt v. Richardson-Merrell, Inc.Bernhardt ex rel. Bernhardt v. Richardson-Merrell, Inc.
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From an adverse summary judgment in this products liability case based upon a mother’s ingestion of Bendectin during pregnancy, the plaintiffs appeal. We hold that the district court properly granted summary judgment by excluding an untimely-filed controverting affidavit.
BACKGROUND
The Bernhardts’ case was filed in Januаry, 1985 and promptly removed to federal court in Mississippi. Plaintiffs asserted that Mrs. Bernhardt’s use of Bendectin to control nausea during her pregnancy caused her daughter to be born without fingers on her left hand. In July, 1986, Merrell Dow Pharmaceuticals, Inc. (“Mer-rell Dow”), the corporatе successor to Richardson-Merrell, Inc., moved for summary judgment based upon plaintiffs’ inability to prove two essential elements of their case: (1) that Bendectin, in fact, caused the birth defects of Dana Bernhardt; and (2) that the alleged inadequacies of Bendectin’s la-belling proximately caused the injuries.
Merrell Dow contended that the plaintiffs could not prove causation because of the “timing of ingestion” of Bendectin by Mrs. Bernhardt. Answers to interrogatories and deposition testimony established that Mrs. Bernhardt first ingested Bendec-tin at day fifty-four оr fifty-five post-conception. Merrell Dow submitted the affidavit of its medical expert, Dr. Jackson, who opined that this was too late in pregnancy to have caused the specific birth defects of Dana Bernhardt. He stated that, in the human fetus, the hand plate is formed by the thirty-eighth day following conception, and the finger rays have formed and the hand has begun to split into fingers by day forty-four. Consequently, a drug exposure after that point in pregnancy could not produce a child with congenital absence of the fingers. Dr. Jackson thus concluded that Mrs. Bernhardt’s ingestion of Bendec-tin occurred too late in pregnancy to have caused Dana’s hand deformities.
About a month later, the Bernhardts filed a memorandum in opposition to Mer-rell Dow’s motion. They submitted no medical or other expert proof that Bendec-tin was tаken by Mrs. Bernhardt at a time when it could have caused the absence of fingers on Dana’s left hand. The Bern-hardts did state that their counsel had been involved in trial in another case with the defendant and that “should the court desire,” counter-affidavits of plaintiffs’ experts would be submittеd. They did not, however, move for an extension of time for further discovery or to supply affidavits. See
In May, 1988, the trial court denied Merrell Dow’s motion for summary judgment, holding that Dr. Jackson’s affidavit “assumed a genuine issue of material fact,” i.e., when the mother’s last menstrual cycle and the date оf conception occurred. Merrell Dow moved for reconsideration of its motion, citing plaintiffs’ interrogatory answers and deposition testimony which unequivocally established these dates.
Merrell Dow’s motion for reconsideration evidently grabbed the attention of the district court, and his law clerk wrote tо plaintiffs’ counsel on November 1,1988 with the following inquiry:
Recently the court reviewed the Defendant’s motion to reconsider its denial of the defendant's motion for summary judgment. In considering this motion, the court wondered what expert testimony the plaintiff had to rebutt [sic] the defendant’s contention that the fingers of a fetus were developed by the forty-fourth day after conception. Please point out in writing what expert testimony you have submitted to rebutt this conclusion.
(emphasis added). Six weeks later, in response to this letter, plaintiffs submitted an affidavit and curriculum vitae of Ph.D. Stewart Newman, which allеged that Mrs. Bernhardt ingested Bendectin at a time when it could have affected the development of Dana’s fingers. Plaintiffs also submitted the previously-mentioned excerpt from the testimony of a Merrell Dow expert in another case, in which the expert agreed that limb dеvelopment in an individual fetus may vary by as much as ten days from the average date following conception.
In April, 1989, the court granted Merrell Dow’s motion for reconsideration and entered judgment for the defendant. The court refused to consider Dr. Newman’s affidavit, finding that it was untimеly filed. The court specifically held that, in the law clerk’s letter of—November 1, there had been no request for additional evidence. The court had inquired only as to the then-existing record. The court noted plaintiffs’ failure to comply with
DISCUSSION
On appeal, the Bernhardts vigorously contest the interpretation of the November 1 letter, the exclusion of Dr. Newman’s affidavit, the propriety of granting summary judgment even without the Newman affidavit, and whether the court based its ruling on a theory it developed sua sponte without giving plaintiffs a сhance to argue or brief it. Our disposition requires a ruling only on the first three of these contentions.
Responding to plaintiffs’ first contention, we hold that the district court did not abuse its discretion in excluding Dr. Newman’s affidavit as untimely filed. The court’s November 1, 1988 letter plainly requests the Bernhardts tо point out what evidence previously submitted could refute Merrell Dow’s contention that the Bendec-tin was taken “too late” to have caused Dana’s specific birth defects. As the court later reiterated, this letter was not an invitation to submit further controverting summary judgment evidence. Thus, the Bern-hardts took it upon themselves to attempt to supplement the summary judgment record nearly two and one-half years after Merrell Dow’s motion was originally filed.
The express terms of the Federal Rules condemn the Bernhardts’ late affidavit.
Accordingly, we analyze the defendant's motion for summary judgment based on the evidence exclusive of the untimely affidavit. Our task is to determine whether any genuine issue of material fact, requiring a trial, is raised in the evidence presented on the motion.
So viewed, there is no genuine issue of material fact. Our decision is somewhat narrower than that of the district court, however, for we rely upon the undisputed affidavit of Dr. Jackson. We do not broach the broader questions whether Bendectin is a human terаtogen, although if we did so, we would be bound by our court’s prior holding in Brock v. Merrell Dow Pharmaceuticals, Inc.,
The Bernhardts’ timely response to Mer-rell Dow’s motion relied upon three pieces of evidence. On examination, none of these actually contradict Dr. Jackson’s affidavit. First, plaintiffs provided an answer of Merrell Dow to interrogatories posed in another case, which admitted that until fifty-six days after conception, the upper limbs of a fetus continue to develop. Utilizing a standard textbook by Moore, Developing Human, 4th Ed. W.B. Sanders & Co.
This conclusion leaps too easily from the very general premises stated by the plaintiffs. To say, for instance, that the upper limbs are still developing until the fifty-sixth day after conception does not assist plaintiffs’ case unless it is further shown that the fingers materialize during the lаst two days of that period. In other words, such evidence does not suggest with any specificity when the fingers would normally begin to appear, which would be the critical point for determining when a tera-togen could have arrested their development. Thus, these statements mаy be generally true, but they do not contradict Dr. Jackson’s more specific testimony about the development of the fetus’s hand plate and finger rays.
The Bernhardts further contend, in rather vague language, that the trial court erred by employing a federal rather than a Mississippi law standard of causation. The trial court, like our court, was ruling on the sufficiency of plaintiffs’ evidence in the face of a summary judgment motion. As we have routinely held, this question raises federal evidentiary concerns, rendering resort to state law improper. See, e.g., Thompson v. Southern Pacific Transp. Co.,
For the foregoing reasons, the judgment of the trial court is AFFIRMED.
Notes
. The Bernhardts’ brief on appeal, like their trial court submissions, does not differ with Merrell Dow’s suppositions as to the dates of conception or Mrs. Bernhardt's last menstrual cycle.
. Later in its memorandum, the district court held that even if it had considered Dr. Newman’s affidavit, its result would be the same, because the affidavit was based on speculation and did not meet minimum standards of reliability for the expression of a scientific opinion.
. The trial court reviewed plaintiffs’ expert "testimony" as reflected in plaintiffs’ responses to defendant's interrogatories. In so doing, the trial court gave plaintiffs the benefit of the doubt that such evidence could be used in plaintiffs’ behalf to respond to a motion for summary judgment. These interrogatory answers are plainly not sufficient summary judgment evidence, however. They are hearsay references tо the qualifications and opinions of third-party experts. The interrogatory answers were verified by Mr. and Mrs. Bernhardt, not by the experts, so the answers cannot qualify as the experts' affidavits. We decline to consider the interrogatory answers as furnishing evidentiary support for the Bernhardts’ summary judgment response. See
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(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
. Merrell Dow points out that the text of Moore, as well as the chаrt referred to by the plaintiffs, confirmed Dr. Jackson’s opinion in stating that the critical period for upper limb development is from twenty-four to forty days after fertilization, as a result of which, any teratogen that could cause absence of the limbs or parts of them would have to act during this early period.