Justices to hear case in battle over pregnancy drug blamed for birth defects

October 14, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court moved yesterday into the midst of the long legal battle over a pregnancy drug, no longer in use, that some experts claim was a cause of birth defects in many children.

By taking on a significant new case about the morning-sickness drug Bendectin in a brief order, the court also put itself in a position to rule on one of the Bush administration's election-year complaints against lawyers.

That complaint, repeated often by Vice President Dan Quayle, is that lawyers use "junk science" to try to sway juries to bring in verdicts against drug companies and other manufacturers of consumer products.

Lawyers who pursue those verdicts dispute that claim, saying experts offer sound testimony that goes far toward contradicting manufacturers' claims that their products are safe.

Lawsuits in lower federal courts over Bendectin have become battlegrounds over the kinds of science that may be used as evidence in damage lawsuits. A final decision is expected next year.

The case that will be heard by the Supreme Court involves two California children born with birth defects, primarily shrunken limbs. The lawsuit contends that the mothers of those children, while pregnant, took Bendectin to relieve their morning nausea and that the drug was responsible for defects in their children.

A key part of the evidence offered in the case are studies of laboratory animals supposedly showing that Bendectin injections caused birth defects in animals' offspring. But that evidence and other testimony that supposedly show a link between Bendectin and human birth defects have been ruled out of the case as a form of "junk science."

Bendectin was on the market, with U.S. government approval, from 1956 to 1983, and more than 17.5 million American women took it, as did about 30 million women worldwide. Its manufacturer, Merrell Dow Pharmaceuticals Inc., took the drug off the market because of the costs it was running up defending itself against birth-defects claims.

Merrell Dow has relied heavily on about 30 scientific studies that supposedly disprove the alleged statistical link between Bendectin and birth defects. Relying on that evidence, a number of federal judges have thrown out cases after ruling that the expert testimony seeking to support the birth-defect claims did not prove that Bendectin did the harm. Other judges have disagreed.

The specific legal issue before the justices in the California case is the standard that federal judges are to use in deciding when to let a jury hear scientific experts' testimony. A federal appeals court in California ruled that expert opinion may not be heard by jurors in federal trials unless that opinion is widely accepted by scientific or medical peers.

The appeals court borrowed that formula from the same source that the Bush administration has used in condemning "junk science" in the courtroom: Peter W. Huber, a controversial Manhattan Institute scholar.

Mr. Huber's hotly disputed book "Galileo's Revenge: Junk Science in the Courtroom," published last year, has become required reading for any lawyer involved in a damages lawsuit in federal court. His basic view is that scientific expert witnesses should not be allowed unless their work has been tested by "peer review" and has been published in recognized professional journals.

A White House council headed by Mr. Quayle embraced the Huber formula last summer, urging courts to rule that expert opinions must be barred from court unless they are "based on an established theory that is supported by a significant portion of experts in the relevant field."

The 9th U.S. Circuit Court of Appeals in San Francisco ruled exactly that way in the California case.

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