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ELKINS v. RICHARDSON-MERRELL

March 19, 1992

JAMES ALBERT ELKINS, SR., et al., Plaintiffs
v.
RICHARDSON-MERRELL, INC., Defendant


HAYNES, JR., Higgins


The opinion of the court was delivered by: WILLIAM J. HAYNES, JR.

REPORT AND RECOMMENDATION

I. INTRODUCTION

 This civil action was referred to the Magistrate Judge by the Honorable Thomas A. Higgins, District Judge by Order entered August 9, 1991 (Docket Entry No. 25). Pursuant to 28 U.S.C. § 636(b)(1)(B), the Magistrate was directed to consider, submit proposed findings of fact and make recommendations for disposition as to the following motion. Pending before the Court is defendant's motion for summary judgment (Docket Entry No. 14).

 Plaintiffs, James Elkins, Sr. and Mary Jo Elkins, individually and as parents and guardians of James Albert Elkins II, Tennessee citizens, filed this action under 28 U.S.C. § 1332, the federal diversity statute, against defendant Merrell Dow Pharmaceuticals, Inc. (formerly Richardson-Merrell, Inc. and hereinafter "Merrell"), a Delaware corporation with its principal place of business in Ohio. Merrell manufactured and sold the drug Bendectin from 1956 to 1983. Bendectin is designed to treat the "morning sickness" which pregnant women suffer. Mary Jo Elkins took this drug while carrying plaintiff James Albert Elkins II ("Elkins"). Elkins was subsequently born with severe birth defects.

 On October 31, 1991, the Magistrate recommended that consideration of the pending motion be stayed pending the Court of Appeals' ruling on an appeal from Turpin v. Merrell Dow Pharmaceuticals, 736 F. Supp. 737 (E.D. Ky. 1990). (Docket Entry No. 29). On January 28, 1992, the Court adopted this recommendation. (Docket Entry No. 30).

 On March 11, 1992, the Court of Appeals affirmed summary judgment for Merrell. See Turpin v. Merrell Dow Pharmaceuticals, Inc., No. 90-5690 (6th Cir., March 11, 1992) (slip op.) (a copy of which is attached hereto). The Court of Appeals held that epidemiological evidence was not conclusive on the issue of causation. Id. at 17. On the other hand, the Court of Appeals considered plaintiff's evidence and concluded that "the factual and theoretical bases articulated for the scientific opinions stated will not support a finding that Bendectin more probably than not caused the birth defect here." Id. at 22. The Court of Appeals held that the animal studies relied upon by plaintiff's experts did not prove causation in humans.

 
Here, the record's explanation of the animal studies is simply inadequate. Although the animal studies themselves may have been scientifically performed, the exact nature of these tests is explained only in general terms. The record fails to make clear why the varying doses of Bendectin or doxyalamine succinate given to the rats, rabbits and in vitro animal cells would permit a jury to conclude that Bendectin more probably than not causes limb defects in children born to mothers who ingested the drug at prescribed doses during pregnancy. The analytical gap between the evidence presented and the inferences to be drawn on the ultimate issue of human birth defects is too wide. Under such circumstances, a jury should not be asked to speculate on the issue of causation.

 Id. at 24.

 The Magistrate notes that the evidence submitted in Turpin is virtually identical to the evidence submitted in this action. The Turpin plaintiff also suffered limb deformities in circumstances which are similar to the ones at issue here. See id. at 3.

 Accordingly, the Magistrate recommends that Merrell's motion for summary judgment be granted. If there are any meaningful distinctions between the present case and Turpin, the parties may raise them in their objections to this Report and Recommendation. The Magistrate further recommends that if such objections are made that the Court should remand this action to the Magistrate for further consideration. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has ten (10) days from receipt of this Report and Recommendation in which to file any written objections to this Recommendation, with the District Court. Any party opposing said objections shall have ten (10) days from receipt of any objections filed to this Report in which to file any responses to said objections. Failure to file specific objections within ten (10) days of receipt of this Report and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh'g denied, 474 U.S. 1111, 88 L. Ed. 2d 933, 106 S. Ct. 899 (1986).

 Entered this the 19th day of March, 1992.

 WILLIAM J. HAYNES, JR.

 United States Magistrate ...


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