F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 12 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
CHARLES WILSON and PATRICIA
WILSON, as parents and next friends of
BRIAN WILSON, a minor, and
CHARLES WILSON and PATRICIA
WILSON, individually,
Plaintiffs-Appellants,
v.
No. 97-5114
MERRELL DOW
PHARMACEUTICALS, INC., a
subsidiary of the Dow Chemical
Company, MERRELL NATIONAL
LABORATORIES, INC.,
RICHARDSON-MERRELL, INC., and
SUBSIDIARIES THEREOF,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 82-CV-710-H)
Kenneth J. Chesebro, Cambridge, Massachusetts, (Barry J. Nace, Paulson, Nace &
Norwind, Washington, D.C., and Jack D. Crews, Tulsa, Oklahoma, with him on the
briefs) appearing for the appellants.
George E. Berry, Dickson, Carlson & Campillo, Santa Monica, California, (Robert L.
Dickson, Hall R. Marston, Dickson, Carlson & Campillo, and Dan A. Rogers, Dan A.
Rogers & Associates, P.C., Tulsa, Oklahoma, with him on the brief) appearing for the
appellee.
Before TACHA, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.
McWILLIAMS, Senior Circuit Judge.
This 16-year old controversy necessarily has a rather lengthy chronology, which,
nonetheless, should be recounted in some detail if the reader is to view the present issues
in context.
On July 15, 1982, Charles and Patricia Wilson, individually and as parents and
next friends of their son, Brian Wilson, a minor, filed in the United States District Court
for the Northern District of Oklahoma a complaint based on negligence, breach of
warranty, and products liability against Merrell Dow Pharmaceuticals, Inc. (“Merrell
Dow”) and related business entities. (On appeal, Merrell Dow is the only remaining
defendant.) Jurisdiction was based on diversity of citizenship, 28 U.S.C. § 1332, the
plaintiffs being residents of Broken Arrow, Oklahoma, and Merrell Dow having been
incorporated in a state other than Oklahoma. The amount in controversy was said to
exceed $10,000.00, which was the statutory minimum in 1982 for federal jurisdiction
based on diversity of citizenship.
The gist of the complaint was that Patricia Wilson, when pregnant, ingested an
anti-nausea drug known as “Bendectin” which had been manufactured and distributed by
Dow and that the drug caused Brian Wilson, her son, to be born with, among other things,
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“limb defects,” for which the plaintiffs sought compensatory and punitive damages. (It
appears that Brian Wilson was born without arms.)
On August 18, 1982, Merrell Dow filed its answer denying liability and alleging,
inter alia, that Patricia Wilson’s ingestion of Bendectin did not cause injury to Brian
Wilson. On November 22, 1989, Merrell Dow filed a motion for summary judgment,
although, so far as we can tell, the motion itself is not in the record before us. Plaintiffs
filed a response to Merrell Dow’s motion on December 26, 1989, although their response
does not appear to be in the present record either. We do know, however, that on March
2, 1990 the district court (Judge James O. Ellison) denied Merrell Dow’s motion for
summary judgment. That order is in the record. The district court in its short order stated
that there were “conflicting arguments regarding causation” and accordingly Merrell
Dow’s motion for summary judgment “must be overruled and the case must proceed to
trial.”
Pursuant to 28 U.S.C. § 1292(b), Merrell Dow, on March 26, 1990, made
application to the district court for an order certifying an immediate appeal on the issue
“of whether the plaintiffs’ evidence on the issue of Bendectin causation in humans is
admissible and/or sufficient to create a jury question.” On July 16, 1990, the plaintiffs
filed a “response” to Merrell Dow’s application in which they stated “they have no
response to said application.” Accordingly, the district court on October 4, 1990, granted
Merrell Dow’s motion for certification and, on October 23, 1990, signed an order for the
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immediate appeal of its order denying Merrell Dow’s motion for summary judgment.
On March 10, 1994, this court, in Wilson v. Merrell Dow Pharm., Inc., 20 F.3d 379
(10th Cir. 1994) vacated the district court’s order of March 2, 1990, and remanded the
case to the district court for further proceedings in light of an intervening opinion by the
Supreme Court, namely, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). On
May 17, 1994, the district court ordered the parties to file simultaneous briefs on the
“applicability of Daubert to the instant matter,” with simultaneous responses thereto.
Briefs were thereafter filed by both plaintiffs and the defendant.
On September 28, 1994, the district court (Judge James O. Ellison) in a
comparatively short order again denied Merrell Dow’s motion for summary judgment,
stating that there was still a “material dispute on the issue of causation.” In the same
order, the district court also directed the parties to submit a suggested form for immediate
certification of its order to this court and stayed further proceedings in the district court.
Whether Merrell Dow, or the plaintiffs for that matter, submitted a form for immediate
certification is unclear from the present record. In any event, no certification order was
signed by the district court to its order of September 28, 1994.
On November 10, 1994, the instant case was reassigned from Judge Ellison, who
we are advised had by that time taken senior status, to another judge in the Northern
District of Oklahoma, and on March 7, 1995, it was reassigned to Judge Sven E. Holmes,
of the same district. On November 30, 1995, the plaintiffs requested a status hearing on
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the case, which, as indicated, had previously been stayed pending an interlocutory appeal,
which appeal was never taken. At this hearing, Merrell Dow apparently asked, and
received, permission to renew its motion for summary judgment. Such a motion was filed
by Merrell Dow on February 27, 1996. Plaintiffs’ opposition to Merrell Dow’s third
motion for summary judgment was filed on March 22, 1996. A hearing was held on
Merrell Dow’s renewed motion for summary judgment on May 16, 1996, and, on May 28,
1996, Judge Holmes granted Merrell Dow’s motion. On June 27, 1996, the plaintiffs
filed a notice of appeal. That appeal (our No. 96-5157) was dismissed by this court on
October 22, 1996 for a perceived failure to comply with Fed. R. Civ. P. 54(b). A so-
called “final” judgment was entered by the district court on May 16, 1997, and on June
13, 1997 the plaintiffs filed their present notice of appeal. So much for the chronology!
Counsel in his opening brief states that plaintiffs’ “most basic ground for reversing
Judge Holmes’ decision, one requiring very little analysis, is that on its face it constitutes
a fundamental violation of the law-of-the-case doctrine, which is strictly applied in
situations where a case is transferred from one judge to another judge and a litigant then
seeks---as Merrell did here---to have the second judge revisit issues already fully
considered and decided by the first judge.” In this regard, counsel argues that the order of
Judge Ellison on September 28, 1994, wherein Judge Ellison, after remand by us in
Wilson v. Merrell Dow Pharm., Inc., 20 F.3d 379 (10th Cir. 1994), denied Merrell Dow’s
motion for summary judgment, which order, not having been interlocutorily appealed,
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became the law-of-the-case and that Judge Holmes was bound by that order, and could
not entertain a further motion for summary judgment. We do not agree.
At oral argument, counsel for plaintiffs conceded that the law-of-the-case
argument, as such, had never been made in the district court, though he had argued in the
district court that on the merits of the matter Judge Holmes should have ruled as Judge
Ellison had on two previous occasions. Be that as it may, it is axiomatic that appellate
courts are disinclined to reverse a trial court on a matter that was not raised in the trial
court. Tele-Communications, Inc. v. C.I.R., 104 F.3d 1229, 1232 (10th Cir. 1997). Nor
are we otherwise persuaded by that argument under the facts of the present case.
From the district court’s docket entries it would appear that, on January 22, 1996,
Merrell Dow requested that it be allowed to re-argue a motion for summary judgment,
which request the district court allowed, there apparently being no objection thereto.
Such further motion was thereafter filed on February 27, 1996. In that motion, Merrell
Dow relied heavily on the then recent opinion by the Ninth Circuit on remand by the
Supreme Court in the Daubert case. Daubert v. Merrell Dow Pharm., Inc, 43 F.3d 1311
(9th Cir.), cert. denied, 516 U.S. 869 (1995). And in making his decision, Judge Holmes
was ultimately persuaded by the rationale of that opinion. Judge Ellison could have,
himself, reconsidered his earlier ruling in the light of subsequent appellate court
decisions, including the opinion of the Ninth Circuit in Daubert after remand, and we see
no reason why Judge Holmes could not reconsider the matter. In this connection, Judge
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Ellison’s order of September 28, 1994 was admittedly an interlocutory order. The real
issue, as we see it, is whether Judge Holmes erred in granting Merrell Dow’s further
motion for summary judgment. In this latter regard, plaintiffs contend that Judge Holmes
also erred, on the merits of the matter, in granting Merrell Dow’s motion for summary
judgment.
Before proceeding further, we will first address the Daubert cases. In Daubert v.
Merrell Dow Pharm., Inc., 951 F.2d 1128 (9th Cir. 1991)(Daubert I), the Ninth Circuit
first considered the matter. In that case, as here, a woman during pregnancy ingested
Bendectin manufactured and distributed by Merrell Dow which allegedly caused limb
reduction birth defects. The district court, in Daubert v. Merrell Dow Pharm., Inc., 727
F.Supp. 570 (S.D. Cal. 1989), had granted Merrell Dow’s motion for summary judgment
based on an insufficient showing as to causation, citing United States v. Kilgus, 571 F.2d
508 (9th Cir. 1978).
On appeal, the Ninth Circuit affirmed the district court and, in so doing, stated
that an “[E]xpert opinion based on a scientific technique ‘is admissible if it is generally
accepted as a reliable technique among the scientific community’,” Daubert I, 951 F.2d at
1129 (citing Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)). In Frye, the
Court of Appeals of the District of Columbia was concerned with the admissibility of the
results of a so-called “deception test” made upon a defendant in a criminal case, and, in
holding that such results were inadmissible, that court spoke as follows:
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Numerous cases are cited in support of this rule. Just
when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is difficult
to define. Somewhere in this twilight zone the evidential
force of the principle must be recognized, and while courts
will go a long way in admitting expert testimony deduced
from a well-recognized scientific principle or discovery, the
thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular
field in which it belongs.
We think the systolic blood pressure deception test has
not yet gained such standing and scientific recognition among
physiological and psychological authorities as would justify
the courts in admitting expert testimony deduced from the
discovery, development, and experiments thus far made.
Id. at 1014. (Emphasis added.)
On certiorari, the Supreme Court vacated the judgment of the Ninth Circuit and
remanded the case for further proceedings “consistent” with its opinion. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (Daubert II). In so doing, the Supreme
Court held that the Frye “general acceptance” test had been superseded by the Federal
Rules of Evidence, especially Rule 702. Under the Federal Rules of Evidence, the
Supreme Court stated that “the trial judge must ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. In Daubert
II, the Supreme Court also stated that “nothing in the text of this Rule [702] establishes
‘general acceptance’ as an absolute prerequisite to admissibility.” Id. at 588. In other
words, “general acceptance” was not a sine qua non, although it could still have a
“bearing on the inquiry.” See id. at 594.
On remand, the Ninth Circuit, in Daubert v. Merrell Dow Pharm., Inc., 43 F.3d
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1311 (9th Cir. 1995) (Daubert III), elected not to remand the case to the district court, and
on its own proceeded to hold that the evidentiary matter offered by the plaintiffs to defeat
Merrell Dow’s motion for summary judgment did not meet even the relaxed standard to
determine admissibility set forth in Daubert II as concerns reliability, and, particularly, as
concerns relevancy. And again the Ninth Circuit affirmed the district court’s grant of
summary judgment for Merrell Dow. A petition for certiorari review of Daubert III was
denied by the Supreme Court. Daubert v. Merrell Dow Pharm., Inc., 516 U.S. 869
(1995).
At the hearing on Merrell Dow’s further motion for summary judgment, plaintiffs,
in the instant case, conceded that their evidentiary matter before the district court was the
same as the evidentiary matter before the district court in the Daubert cases, but argued
that the Ninth Circuit’s holding in Daubert III was incorrect as a matter of law, and that
not only was its decision not “binding” on the district court in our case but should not
have been followed because it was unpersuasive.1
We review a grant, or denial, of a motion for summary judgment de novo. Wolf v.
Prudential Ins. Co. of America, 50 F.3d 793, 796 (10th Cir. 1995); Universal Money Ctrs.,
Inc. v. AT&T, 22 F.3d 1527, 1529 (10th Cir.) cert. denied, 513 U.S. 1052 (1994).
However, we review the district court’s determination in the instant case that plaintiffs’
We note that certain of counsel in the instant case were also counsel of record in
1
the Daubert cases. Also, certain affiants in the instant case were also affiants in Daubert.
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evidentiary matter was insufficient to permit admission of its so-called “scientific
evidence” concerning the causation issue under an abuse of discretion standard. Hinds v.
General Motors Corp., 988 F.2d 1039, 1047 (10th Cir. 1993); Durtsche v. American
Colloid Co., 958 F.2d 1007, 1011 (10th Cir. 1992). In this general connection, in Daubert
II, the Supreme Court spoke as follows:
Faced with a proffer of expert scientific testimony,
then, the trial judge must determine at the outset, pursuant to
Rule 104(a), whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact to
understand or determine a fact in issue. This entails a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be
applied to the facts in issue. We are confident that federal
judges possess the capacity to undertake this review. Many
factors will bear on the inquiry, and we do not presume to set
out a definitive checklist or test. But some general
observations are appropriate.
Daubert II, 509 U.S. at 593.
If there was prior doubt regarding the standard to be used by us in reviewing an
evidentiary ruling to exclude at trial a plaintiff’s proffered scientific evidence regarding
causation, such was resolved in the recent case of General Electric Co. v. Joiner, ____
U.S. ____, 118 S. Ct. 512 (1997). In Joiner, the district court excluded testimony of the
plaintiffs’ expert witnesses and granted the defendant’s motion for summary judgment.
On appeal, the Eleventh Circuit reversed. On certiorari, the Supreme Court reversed. In
reversing, the Supreme Court held that abuse of discretion was the proper standard of
review of the district court’s evidentiary ruling excluding the proffered testimony of the
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plaintiffs’ expert witnesses. Joiner, 118 S. Ct. at 517. In so doing the Supreme Court
approved language appearing in earlier Supreme Court cases to the effect that whether a
district court receives or excludes such evidence, an appellate court should not reverse
unless the district court’s ruling is “manifestly erroneous.” Id. Further, the Supreme
Court in Joiner rejected the suggestion that, since the grant of summary judgment was
“outcome determinative,” the district court’s ruling excluding the expert witness
testimony should have been subject to a “more searching” standard of review than abuse
of discretion, and held that the Eleventh Circuit in applying a more “stringent” review
failed to give the district court “the deference that is the hallmark of abuse of discretion
review.” Id.
So, the real issue in the present case is, did the district court abuse its discretion in
holding that the evidence tending to show that Patricia Wilson’s ingestion of Bendectin,
manufactured and distributed by Merrell Dow, caused her son, Brian Wilson, to be born
without arms was insufficient to render it admissible in an ensuing trial.12 Our study of
the record before us leads us to conclude that Judge Holmes did not abuse his discretion,
i.e., his ruling excluding plaintiffs’ expert witnesses’ testimony was not “manifestly
erroneous,” and should be afforded “deference,” and, having made that “gatekeeping”
function, Judge Holmes did not thereafter commit error in granting Merrell Dow’s motion
As indicated, this evidence, in the main, was contained in various affidavits
2
submitted by the plaintiffs in opposition to Merrell Dow’s first motion for summary
judgment, which was also supported by affidavit.
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for summary judgment. It is quite true that Judge Holmes was not bound to follow
Daubert III, which fact he fully understood when, at oral argument on the further motion
for summary judgment, he stated that the “last time I checked the Ninth Circuit wasn’t in
Denver!” However, such didn’t preclude Judge Holmes from considering the rationale of
Daubert III, and following it, if he believed such was the proper disposition of the matter
before him.
In affirming, we reject counsel’s suggestion that the Ninth Circuit in Daubert III
(as well as the district court in the present case) failed to follow the direction of the
Supreme Court in Daubert II in the following particulars: failure to focus solely on
methodology and not on conclusions; and finding inadmissibility on lack of detail without
first allowing further elaboration under Fed. R. Evid. 705.
In this general connection, it should be noted that in Daubert II the Supreme Court
vacated the judgment of the Ninth Circuit in Daubert I and remanded the case to the
Ninth Circuit “for further proceedings consistent with this opinion.” In Daubert III, the
Ninth Circuit reconsidered the matter in the light of, and presumedly in a manner it
thought to be consistent with, Daubert II. Thereafter, a petition for certiorari was filed,
which petition the Supreme Court denied on October 2, 1995. Daubert v. Merrell Dow
Pharm., Inc., 516 U.S. 869 (1995). In thus observing, we are fully aware that a denial of
a petition for certiorari is generally considered to be only that—a denial of the
petition—and not to be interpreted as “Judgment affirmed.” See, for example, Maryland
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v. Baltimore Radio Show, Inc., 338 U.S. 912, 919, and Dairy Distributors, Inc., v.
Westerm Conference of Teamsters, 294 F.2d 348, 352 (10th Cir. 1961).
Believing that Judge Holmes did not abuse his discretion, and, such being the case,
that summary judgment was therefore proper, we affirm.
Judgment affirmed.
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