Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin
Litigation, 86 Nw.
In that case, the Supreme Court ruled that, under FRE 702, a "trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." (69) At the heart of that case were two minor children--Jason Daubert and Eric Schuller --who were "born with serious birth defects." (70) They and their parents sued Merrell Dow Pharmaceuticals alleging that the birth defects had been caused by the Bendectin
, a prescription antinausea drug marketed by Merre11.
Sixth, strong arguments have been made that juries in toxics cases, such as the Bendectin
cases, reach decisions that do not comport with scientific and judicial opinion.
(41) See, e.g., id., supra note 36, at 200-01 (discussing the Bendectin
Again in the 1980's, Bendectin
(doxylamine plus pyridoxine) was removed from distribution in the US by the pharmaceutical company because of concern associated with birth defects and associated litigations (Koren, Pastuszak, & Ito, 1998).
market by the manufacturer in 1983 because the company couldn't afford the high cost of litigation and insurance, despite the fact that a panel convened by the Food and Drug Administration said there was no association between Bendectin
and human birth defects.
Sanders interviewed jurors after they gave a verdict in favour of a plaintiff in a civil trial where it was alleged that the anti-nausea drug Bendectin
, ingested during the first trimester of the mother's pregnancy, had caused birth defects.
ingestion of the anti-nausea drug, Bendectin
, marketed by Merrell Dow
The signal example of this is Bendectin
(pyroxidine HCl/doxylamine succinate), a drug approved by FDA in 1956 to prevent nausea during pregnancy.
(144) Ruling on remand in the infamous Bendectin
litigation, Judge Alex Kozinski explained:
Consider also the US mass tort litigation concerning Bendectin
(Debendox), the anti-nausea drug used in pregnancy.