An article yesterday about a D.C. Court of Appeals decision involving the drug Bendectin should have named Judge John A. Terry as author of the opinion.
The D.C. Court of Appeals yesterday reinstated a jury's decision to award $750,000 to a teen-age girl whose family contended she was born with birth defects because her mother used the morning sickness medication Bendectin, which was used by about 33 million pregnant woman between 1957 and 1983.
The appellate court ruled that D.C. Superior Court Judge Joseph M. Hannon erred when he overturned the 1983 jury verdict -- the only judgment to date against the manufacturer -- and ordered a new trial.
Hannon ruled that studies presented at the trial, linking the drug to birth defects, were inconclusive. Bendectin was manufactured by Merrell Dow Pharmaceuticals, Inc. of Cincinnati, which stopped producing the drug shortly after the 1983 jury verdict.
"What this says is that the highest court in a jurisdiction says that a victim can win a Bendectin case," Barry J. Nace, the attorney for 15-year-old Mary Virginia Oxendine, said yesterday. "This should give hope to every child that is a Bendectin victim."
The jury awarded the $750,000 after a three-week trial in which Nace argued that the drug caused congenital deformities in babies, including his client's shortened right arm with only three fingers fused together on her right hand. The company had argued that no scientific studies showed that defects could be traced to the drug.
A Merrell Dow spokesman called yesterday's ruling "very disappointing."
"There were no judgments against the company until this trial," said spokesman William Donaldson. "We continue to strongly believe that Bendectin does not cause birth defects and this belief is supported by scientific evidence."
The appellate court ruling represents a major setback for the company after a federal court jury in Cincinnati last year found that the drug could not be traced to birth defects in a product liability suit brought by about 1,100 persons nationwide, which constituted two-thirds of all pending litigation against the company. The only other suit to go to trial, filed in Florida in 1977, was won by the company after two trials.
In handing down its ruling yesterday in the Oxendine case, a three judge panel warned that trial judges have "no special competence" and should be "particularly cautious" in setting aside jury verdicts in complex cases involving questions of "medical issues of causation."
The appellate panel found that Judge Hannon's recollection of the trial testimony was "unfortunately flawed." It noted in its 28-page ruling that when Hannon vacated the jury's verdict, he relied on testimony from the family's key medical expert that each of the studies on which the expert relied could not, "by itself, support a finding of causation."
"Where the court erred was in failing to consider the same expert's testimony that all of the studies taken in combination did support such a finding, as he carefully and repeatedly explained," said Chief Judge William C. Pryor, writing for the panel.
In addition to reinstating the jury verdict, the appellate court ordered a trial to be held to determine punitive damages against the company. The $750,000 was for compensatory damages.