An article Wednesday on a $95 million award to an 8-year-old District boy born with deformed arms and hands said the Public Citizen Health Research Group (HRG) was among those that doubt that scientific studies have shown Bendectin to cause any of a wide variety of birth defects. In June, 1982, HRG unsuccessfully petitioned the government to halt Bendectin sales on the ground that the morning- sickness drug may cause hernia of the diaphragm. (Published 7/17/87)
An 8-year-old District of Columbia boy was awarded $95 million by a federal court jury Tuesday because of birth defects blamed on Bendectin, a morning-sickness drug taken by his mother.
The six-woman jury made the award, one of the largest ever in a product liability lawsuit, to Sekou Ealy, son of Mr. and Mrs. Robert Ealy Jr.
Merrell Dow Pharmaceuticals Inc., which halted production of Bendectin in 1983, was ordered to pay Sekou Ealy $20 million to compensate him for permanent deformities of his arms and hands and $75 million in punitive damages.
Merrell moved to have both awards set aside, partly on the ground they were excessive. U.S. District Court Judge June L. Green let the $20 million compensatory award stand and took under advisement the motion to overturn the punitive award.
Company spokesman William R. Donaldson said in Cincinnati that Merrell ''will take all necessary steps to reverse this verdict and obtain a ruling in its favor.''
The five-week trial was the 17th in which a verdict or judgment has been reached on whether Bendectin causes birth deformities. At the trial level, the Dow Chemical Co. unit has won 12 and lost five -- including four in the District of Columbia -- but has paid no monetary damages to plaintiffs pending appeals. Two of the 17 trials were in West Germany.
Green divided the trial of the Ealy suit into two stages and restricted the first stage to the issue of causation -- mainly, whether Bendectin had caused the child's deformities, and whether Merrell had engaged in wrongful conduct that had led his mother, a State Department clerk, to use the drug.
Friday, the jurors answered ''yes'' to each of 10 written questions, including whether Merrell had been ''negligent'' in testing, making, selling, and distributing Bendectin, and in failing to warn physicians; whether the negligence was a ''proximate cause'' of Sekou's injuries; and whether the particular Bendectin tablets taken by Sandra Ealy were ''unreasonably dangerous.''
On Monday and Tuesday the jury considered the amount of damages. Barry J. Nace, lawyer for Sekou, did not ask for a specific sum, focusing instead on the deformities and their consequences, including several hand operations. At one point, he held up Sekou in front of the jurors and said, ''I want you to take a look at his arms.''
Sekou demonstrated to the jury that he could not raise his arms to the point where, for example, he could button his top shirt button.
''Sometimes I get mad that I can't straighten out my arms,'' he testified. At school, where he has finished the second grade, schoolmates ''make fun of my hands,'' he said. He said he loves football, but ''I can't throw good.'' He can tie his shoes, ''but not tight, though.''
For Merrell, Mark L. Austrian told the jurors that in light of Friday's verdict the company ''expects you to compensate him fully and fairly.''
Whether Bendectin has been shown by well-designed scientific studies to cause any of a wide variety of birth defects is highly controversial, and the doubters include the Public Citizen Health Research Group, founded by Ralph Nader. Merrell spoke Tuesday of ''the strong scientific support of the drug's safety.''
Many critics contend physicians prescribed Bendectin before attempting conservative therapy, such as dry toast or crackers, to deal with morning-sickness symptoms.
Nace told a reporter Tuesday that the jury's message to Merrell was that it ''knew, and had to know, of the dangers associated with taking any drug in pregnancy, yet did not take any active step to prove that Bendectin was safe, and instead went so far as to ignore all the signs that were there.''
Merrell's Donaldson called it ''incredible'' that the jury blamed Bendectin for Sekou's deformities and awarded ''grossly excessive'' damages. ''We can only conclude that the jury was motivated by emotion and sympathy for the child,'' he said.
The issue that Green put to the jury Monday was whether Merrell had been shown by ''clear and convincing evidence'' to have engaged in reckless, wanton, or ''intentional wrongdoing,'' or in ''malicious or willful'' conduct ''aggravated by evil motive.''
Green instructed the jurors that if they found such conduct, they should assess punitive damages, both as punishment and as an example for others. Nace and Austrian stipulated that Merrell's net worth was $134 million.
Nace accused company officials of having ''played a form of Russian roulette'' with the 1.34 billion Bendectin pills sold in the United States after the Food and Drug Administration approved the drug in 1956 for the ''nausea and vomiting'' of pregnancy.
''They didn't have anything that said the drug was safe,'' Nace said. ''All they had was (the position that) you can't prove the drug is not safe.''
Nace told the jury that Merrell was ''well aware'' that drugs taken in early pregnancy could be a problem. He recalled Merrell's experience with thalidomide, a sedative and tranquilizer that caused the birth of thousands of armless and legless babies in other countries. The company, then a unit of Richardson-Merrell Inc., had tried to get FDA approval to sell thalidomide here.
Austrian told the jury that Merrell officials ''may have been negligent'' or ''wrong.'' But, he said, ''there's nothing in the record (to show) that any of them acted with reckless indifference,'' engaged in ''malevolent or malicious conduct,'' or ''believed Bendectin would hurt children.''
Earlier Monday, out of the presence of the jury, Nace had tried to persuade Green to let him show that Merrell's handling of Bendectin was part of a ''pattern'' of wrongful conduct, along with thalidomide and a cholesterol-lowering drug called MER-29. Merrell was criminally prosecuted for its handling of MER-29.
Green ruled that the alleged pattern didn't ''belong in this case at all'' because the issue was Merrell's ''responsibility for what they did or failed to do'' as to Bendectin.