A federal jury in Cincinnati has found that scientific evidence does not support the claims of over 1,000 women that the anti- nausea drug Bendectin, taken during their pregnancies, was the cause of birth defects in their babies. Understandably, this verdict is upsetting to the plaintiffs and their lawyers, and further Bendectin litigation is likely. In any event, the case is of special interest because the two-stage procedure used by the trial judge offers promise of a more sensible and fairer approach to dealing with the recent flood of personal injury suits.
The procedure laid down by federal Judge Carl B. Rubin required that, before turning to the question of whether the drug's manufacturer, Merrell Dow Pharmaceuticals, was liable for damages, the jury first had to decide whether the drug had caused any damages at all. This seemingly common-sense approach is not the norm for personal injury suits. Instead, both sides typically present the full array of arguments at one time, mixing esoteric scientific data, legal technicalities and emotional appeals in whatever order the lawyer thinks is most likely to influence the jury. And sometimes, as in the recent Agent Orange veterans' settlement, companies may agree to pay off claimants they haven't harmed simply because they fear that sympathy for the plaintiffs will overshadow the technical merits of the case.
Judge Rubin's approach allowed the jury to focus exclusively on the complicated and often conflicting evidence concerning the drug's possible effects of birth defects. Because millions of women took Bendectin, and because birth defects are sadly common among all newborns, it is not surprising that many women who took the drug bore babies with congenital defects. But the jury did not find that available evidence supported the contention that Bendectin is responsible for these defects.
That, of course, is no consolation for the parents who had been led to believe that Bendectin and its manufacturer were to blame for their children's tragic disabilities. And it is not surprising that the plaintiffs and their lawyers feel that the verdict would have been different if they had been able to describe to the jury their children's problems and their own financial and emotional difficulties in dealing with them. But bending the tort law to require manufacturers to pay for damages not of their doing is not only bad for business and, ultimately, for the economy, it is also corrosive to the country's sense of justice and fair play.