Bernhardt v. Richardson-Merrell, Inc.Bernhardt v. Richardson-Merrell, Inc.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Thе court has before it the motion of the defendant Merrell Dow Pharmaceuticals, Inc. for summary judgment to dismiss this action. Having read the parties’ memoranda, examined the evidence and being fully advised of the premises, the сourt is in a position to rule on the merits.
As a basis for this motion, the defendant relies upon the medical opinion of Dr. John F. Jackson, who assumed that the plaintiff was conceived between fourteen to fifteen days after her mother’s last menstrual cycle which allegedly occurred about May 24, 1978. In his affidavit, Dr. Jackson concluded that “the drug Bendectin did not cause the child to be born without fingers because the gestational age of the fetus was such at the time of the taking of the drug that the fingers on the left hand, if they were going to develop, would have already been to that stage of development which would have allowed the continued development of the extremeties.” This conclusion is based upon an assumption of when the mother’s last menstrual cycle occurred and when the date of conception
That defendant’s motion for summary judgment be and is hereby DENIED.
ON MOTION TO RECONSIDER
The court has before it the defendant’s motion to reconsider the court’s denial of its motiоn for summary judgment and the defendant’s motion to strike the plaintiffs’ submission of the affidavit of Dr. Stuart Newman. Having considered the parties’ memoranda and supporting exhibits, the court is in a position to rule on the merits.
I.
Dana Michelle Bernhаrdt and her parents brought this suit against the manufacturer of the drug Bendectin asserting that Bendectin caused a deformity of Michelle’s hand and arm. Mrs. Bernhardt took Bendectin during her pregnancy with Michelle after her doctor, Dr. Hal P. James, prescribed it for morning sickness. The parties rely on the testimony of medical experts who reached opposite conclusions in determining whether Bendectin caused the plaintiff’s birth defects. The defendant relies оn the affidavit of Dr. John Jackson, a professor of medical genetics at the University of Mississippi. In his affidavit, Dr. Jackson indicated that certain parts of the body are completely formed during gestational stages and the formation cannot be reversed except by a traumatic event. According to Dr. Jackson, the arm buds begin to form on the fetus within thirty days from conception, the hand plate is formed by the thirty-eighth day and the elbow has formed and finger rays have split into fingers by the forty-fourth day after conception. Utilizing this information, Dr. Jackson concluded that Bendectin could not have caused Michelle’s deformity because her mother took the drug fifty-four or fifty-five days aftеr the conception of Michelle. Dr. Jackson also opined that Bendectin was not a teratogen, a drug which affects limb development.
In opposition to the defendant’s motion for summary judgment, the plaintiffs submitted answers to the defendant’s interrogatories which contained summaries of the plaintiffs’ expert testimony. According to the plaintiffs, Dr. Melnick, Dr. Lord, Dr. Thiersch, Dr. Glauser, Dr. Brownlee, and Dr. Newman would testify that, based upon in vitro and in vivo animal studies, Bendectin was a teratogen which could affect limb formation within the first ten weeks of pregnancy. The plaintiffs also indicated that several doctors would testify that taking Bendectin during pregnancy as “prescribed by Dr. Clark (the presсribing obstetrician)” created a risk of the birth defects. (In fact, Dr. Hal Pearson James treated and prescribed Bendectin to Mrs. Bernhardt during her pregnancy). Dr. McBride, Dr. Done, Dr. Brownlee, Dr. Thomas, Dr. Melnick, Dr. Newman, Dr. Glauser and Dr. Lord would testify “with reasonable medical certainty, the cause of the limb defect that the infant plaintiff was born with was Bendectin.”
II.
Since the plaintiffs must establish that Bendectin caused the birth defect by reasonable medical certainty, they must рresent sufficient evidence to establish the existence of causation in order to survive the defendant’s motion for summary judgment.
Celotex Corp. v. Catrett, 477
U.S. 317, 322,
Initially, the court denied the defendant’s motion for summary judgment because Dr. Jackson based his opinion upon an assumption of when the conception of Michelle occurred. The defendant asked for reconsideration of its motion for summary judgment because Dr. Jackson based his assumption of when conception occurred on the plaintiff’s answers to interrogatories. After considering the defendant’s motion, the court gave the plaintiffs the opportunity “to rebut the defendant’s contention that the fingers of a fetus were develоped by the forty-fourth day after conception
If a nonmovant needs further discovery to present evidence to oppose a motion for summary judgment, Rule 56(f) permits the nonmovant to request a continuance. Additionally, the court may рermit parties to supplement evidence presented for consideration of a summary judgment motion.
III.
The parties support their positions in this ease by conflicting expert testimony. In addressing the motion for summary judgment, the court must consider the reliability and foundation of the experts’ opinions.
The plaintiffs’ experts have not indicated whether or not the animal studies upon which they rely are reasonably relied upon by experts in the field of embryology, epidemiology, or pharmacology.
Even if the court assumed Bendectin was a teratogen, the plaintiff failed to present a factual basis upon which an expert could conclude that it probably caused the plаintiff’s deformities. According to Doctors Swan and Done, ingesting Bendectin during Mrs. Bernhardt’s pregnancy created a risk of birth defects. Dr. Swan indicated the risk was statistically significant enough to establish a probable link between Bendectin and the plaintiff’s birth defects. However, none of these doctors indicated whether the studies they relied upon were generally accepted in their fields of expertise. Moreover, the court cannot be sure the еxperts based their conclusions upon a diagnosis of Michelle Bernhardt because
Trial courts cannot “accept uncritically any sort of opinion espoused by an expert merely because his credentials render him qualified to testify____” Whether an expert's opinion has an adеquate basis and whether without it an evidentiary burden has been met are matters of law for the court to decide.
Richardson by Richardson v. Richardson-Merrell, Inc.,
Assuming arguendo that the tardy affidavit of Dr. Newman had been properly presented to the court, it suffers from the same flaws as those previously presented and would have been insufficient to overcome the defendant’s motion fоr summary judgment.
Dr. Newman stated that a teratogen can affect the development of limbs at least fifty days after conception and that “scientific studies and observations have shown” that limb development in human fetuses cаn vary plus or minus ten days. Dr. Newman concluded that Mrs. Bernhardt did not take Bendectin too late to cause her child’s injuries but failed to conclude that the plaintiff’s injuries were probably caused by Bendectin. An opinion that Bendectin could have caused Michelle’s injuries does not lead to the conclusion that it probably caused her deformities. Dr. Newman’s opinion is based upon speculation and at most creates a negative inference which cannot establish the probable cause of the plaintiff's injuries.
See Washington v. Armstrong Industries, Inc.,
An order will issue accordingly.
ON MOTION TO RECONSIDER AND MOTION TO STRIKE
The court has before it the plaintiffs’ motion to reconsider this court’s opinion and order entered on April 26, 1989 and the defendant’s motion to strike that motion as untimely.
ORDERED AND ADJUDGED this, the 23rd day of June, 1989.