Barry Nace Obtains $37 Million Verdict in Birth Injury Case Involving Benedectin

How two precedent-setting cases forever changed the way attorneys can proceed in defective drug cases

Kelly Havner was born with no fingers or thumb on her right hand. Her mother, Marilyn Havner, had taken Bendectin, an anti-nausea medication when she was pregnant with Kelly and believed that taking the drug caused her daughter’s limb reduction. Kelly’s parents filed a product liability lawsuit against Merrell Dow Pharmaceuticals, Inc. alleging the drug maker’s negligence, defective design and defective marketing or the failure to warn consumers of possible dangers in using their product.

According to court documents, the trial was bifurcated with one part considering liability and compensatory damages and the other considering any evidence on punitive damages. The same 12-person jury sat for both phases of the trial. Court documents report that ten jurors assessed liability and actual damages in the first phase of the trial. In the second phase, a different ten jurors found Merrell grossly negligent and assessed punitive damages. The jury awarded the Havners $3.75 in compensatory damages and $30 million in punitive damages.

Merrell moved to have the jury’s verdicts set aside and requested a new trial. The judge denied those motions. However, the trial court reduced the punitive damage award to four times the compensation award in accordance with Texas law and entered judgement in favor of the Havners.

Merrell Dow Pharmaceuticals appealed the trial court’s ruling all the way to the Texas Supreme Court, which ruled in favor of Merrell based on the court’s finding that the evidence presented was legally insufficient to establish causation. However, in that ruling, the Texas Court changed the admissibility standard for expert testimony and reverted to a previous standard that worked to the pharmaceutical manufacturer’s advantage. Ironically, the court refused to remand the case, so the plaintiffs were unable to try the case once again under the new “Havner Standard.”

An article in the September 2014 edition of the Justice System Journal, Jury Deliberation in a Complex Case: Havner v. Merrell Dow Pharmaceuticals, considers the debate about the ability of jurors to decide complex cases fairly using the Havner case as an example. The article abstract discusses how the presentation of scientific data can make it challenging for jurors to understand and assess the information in order to come to a decision.

Fighting Dow Merrell in the Supreme Court

Attorney Barry J. Nace was counsel in Daubert v. Merrell Dow Pharmaceuticals, Inc., which went to the Supreme Court of the United States. This drug liability case was about two boys named Daubert and Schuller who were born with birth defects that they attributed to their mothers having taken Bendectin when they were pregnant.

In Daubert, the plaintiffs offered affidavits from eight experts, which all claimed that there was a link between the drug Bendectin and their birth defects, by asserting that the chemical structure of Bendectin was similar to the structure of other chemicals that are known to cause birth defects. The trial court dismissed the case and Daubert appealed and the appeals court affirmed the trial court’s finding that scientific data is only admissible if the principle upon which it is based is “sufficiently established to have general acceptance in the field to which it belongs.”

The US Supreme Court’s ruling in Daubert (agreed to by seven members of the Court) created what is now referred to as the Daubert standard, which is a rule of evidence pertaining to the admissibility of expert witness testimony in federal court cases. The Daubert standard establishes the judge as gatekeeper to expert testimony and established the requirements that the expert testimony must meet.

Drug liability attorneys relentlessly in pursuit of justice on behalf of our clients

When you or someone you care about is suffering from adverse effects from having taken a defective prescription drug, you need the strong advocacy of a skilled Washington DC drug liability attorney to protect your right to fair compensation. You are encouraged to contact Paulson & Nace, PLLC, by calling 202-463-1999 or completing our contact form. We represent the injured throughout Washington, DC and West Virginia.