An 11-year-old District boy who won, and then lost, a $95 million award against the maker of an anti-nausea drug his mother took during pregnancy yesterday lost the case on appeal to the Supreme Court.
The Justices let stand a ruling that threw out Sekou Ealy's initial legal victory over Marion Merrell Dow Inc., a pharmaceutical company headquartered in Kansas City, Mo.
Sekou's mother, Sandra, took the drug Bendectin while she was pregnant; he was born without thumbs and with developmental defects in his hands and arms.
More than 30 million women used the drug, marketed between 1957 and 1983. The company stopped selling the drug seven years ago, although the Federal Drug Administration never has rescinded its approval.
A District of Columbia jury awarded Sekou $20 million in compensatory damages and $75 million in punitive damages. A federal district judge set aside the punitive damage award, and the U.S. Circuit Court of Appeals overturned the compensatory damage award, ruling that the expert testimony used in an attempt to link Bendectin to the birth defects "was without scientific foundation."
"It may well be that future scientific research will generate . . . an adequate basis for an expert's opinion that Bendectin . . . caused a plaintiff's birth defects," the appeals court said.
In the appeal acted upon yesterday, lawyers for Sekou requested that the Supreme Court order a new trial rather than throw out the lawsuit against the manufacturer.