More expert testimony on birth defects OK'd

June 29, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court raised the prospect yesterday that families with children born with deformed arms, legs, hands and feet may have a chance -- after years of frustration in the courts -- to prove that a major drug company's product was to blame.

In a unanimous ruling, the court opened the federal courts to hear more scientists and doctors give their opinions about how birth defects, diseases or injuries were caused -- perhaps linking them to such things as medicines, surgery, industrial chemicals and faulty products.

Often "expert witnesses" who have been called to offer that kind of testimony have been barred from the witness stand, on the theory that their views were too novel, or untried, and not widely accepted by their peers.

But the court ruled yesterday that the strict rule used since 1923 by many federal judges no longer controls what scientific testimony is to be allowed. In place of that, the court adopted what it called a "flexible" approach that is likely to mean, in practice, that more such testimony will be admitted.

The dispute has been a hot one within the legal and scientific communities as the debate raged on what some critics have called "junk science" in the courtroom. But the controversy also has had a potentially wide impact on consumers, patients and workers in general.

The court's ruling came on the last day of the term, and the last day of Justice Byron R. White's 31 years on the court. He retired after the court finished its work yesterday. He and Chief Justice William H. Rehnquist read from the bench a cordial exchange of letters. By the time the court returns Oct. 4, a new justice -- Judge Ruth Bader Ginsburg -- will be on the bench, if she wins Senate approval this summer.

The new decision on expert testimony came in a case filed for two San Diego boys, Jason Daubert, who was born without part of his right arm and without three fingers on one hand, and Eric Schuller, born without one hand and with one leg shorter than the other. Their mothers, during pregnancy, had taken the drug Bendectin, which was prescribed for morning sickness.

Bendectin was made by Merrell Dow Pharmaceuticals Inc. and marketed with federal government approval from 1956 until 1983. The company finally took it off the market because of the heavy costs of defending itself against lawsuits claiming that Bendectin was responsible for birth defects.

It has been estimated that more than 39 million women worldwide, and nearly 18 million women in the United States, took the drug while it was available.

Although Merrell Dow has been sued repeatedly, most of the cases have failed because evidence that the drug caused the birth defects was lacking.

In the San Diego boys' case, however, the families' lawyers wanted to call eight scientists who had taken new approaches to evaluating the possible link between Bendectin and birth defects. Those eight were prepared to testify that it was more likely than not that there was a link. They were kept off the stand, however, because their scientific approach was not generally accepted among their peers.

Limit set on seizures

In a separate, unanimous ruling, the court put a new constitutional limit on the government's power to seize an individual's home, business or other property after its use in a drug crime.

Ruling in the case of a South Dakotan whose trailer home and body shop business were seized after he had been convicted of selling two grams of cocaine, the court said the the law permitting property forfeitures after drug crimes imposes a form of punishment, and an "excessive" amount of property may not be taken. The court sent the case back to the lower courts for a reconsideration of the South Dakotan's challenge.

Free speech' claimed

The court, in a 6-3 ruling, rejected a claim that the government violated the free speech rights of a St. Paul man who ran a chain of adult book and movie stores when it seized all of those stores, and when it seized and destroyed some 100,000 books and films as punishment.

The court, however, sent the case back to lower courts for a decision on whether the property forfeitures were "excessive" under the Eighth Amendment's ban on "excessive fines."

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