Summary
The Tenth Circuit affirmed a defense verdict for Merrell Dow in a Bendectin birth defect case, holding that the district court did not abuse its discretion in refusing a missing witness instruction because the uncalled expert was equally available to both parties and his testimony would have been cumulative. The court also upheld admission of sales charts comparing Bendectin distribution with birth defect rates as proper basis for expert testimony under Fed. R. Evid. 703, and found sufficient evidence—including the absence of statistically significant epidemiological studies—to support the jury verdict and deny judgment n.o.v. or a new trial. Key legal topics include missing witness instruction factors, Rule 703 admissibility of hearsay as expert basis, and sufficiency of epidemiological evidence in products liability.
Topics
Practice areas
Questions Presented
- Whether the district court erred in declining to give a missing witness instruction regarding an uncalled expert witness, Dr. Burhan Say.
- Whether the district court erred in allowing defense counsel to comment during closing argument that the missing witness was equally available to the plaintiffs.
- Whether the district court erred in admitting Merrell Dow's sales charts (Exhibits 2288 and 2280) into evidence as the basis for expert testimony.
- Whether the district court erred in denying the plaintiffs' motion for judgment notwithstanding the verdict or a new trial.
Holdings
- The district court did not abuse its discretion in declining to give a missing witness instruction because the four factors for such an instruction were not satisfied—Dr. Say's testimony was cumulative and he was equally available to both parties. Allowing defense counsel to comment on the missing witness's equal availability was also permissible.
- The district court did not abuse its discretion in admitting the sales charts because they were of a type reasonably relied upon by experts in the field of pharmacoepidemiology and thus admissible as basis for expert testimony under Federal Rule of Evidence 703.
- The district court properly denied the motion because the evidence was sufficient to support the jury verdict and the verdict was not against the weight of the evidence.
Key quotations
“Courts have recognized four factors that must be present before a jury can be instructed to infer that a missing witness would have testified adversely to a party: (1) the party must have the power to produce the witness; (2) the witness must not be one who would ordinarily be expected to be biased against the party; (3) the witness's testimony must not be 'comparatively unimportant, or cumulative, or inferior to what is already utilized' in the trial; and (4) the witness must not be equally available to testify for either side.” (1151)
“Federal Rule of Evidence 703 allows an expert witness to base his testimony upon facts or data that are hearsay, provided that those facts or data are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'” (1153)
“We agree that this failure of the charts to take into account when the Bendectin was consumed may weaken their value as the basis for expert testimony, but this failure affects the weight, not the admissibility, of the charts under Rule 703.” (1154)
Factual background
Brent Ryan Wilson was born missing one finger on each hand. His mother, Susan Wilson, ingested Bendectin, a drug manufactured by Merrell Dow's predecessor, during pregnancy to alleviate morning sickness. The plaintiffs alleged that Bendectin caused the birth defect and brought claims for products liability, fraud, breach of warranty, strict liability, and negligence.
Procedural history
The plaintiffs brought a diversity suit against Merrell Dow alleging that Bendectin caused birth defects. After a three-week trial, the jury returned a general verdict for Merrell Dow. The plaintiffs appealed, asserting errors in jury instructions, evidentiary rulings, and denial of post-trial motions.