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Merrell Dow Pharmaceuticals8/10/1995
08/10/1995
On appeal from the 214th District Court of Nueces County, Texas.
O P I N I O N
BEFORE THE COURT EN BANC
This is an appeal from a products liability suit against a drug company, Merrell Dow Pharmaceuticals. Merrell Dow manufactured and marketed Bendectin, a drug to relieve the nausea associated with pregnancy. The Havner family claims that the drug caused their daughter's birth defect. The plaintiffs obtained a favorable jury verdict and judgment. Merrell Dow appealed. On original submission a panel of this court found no evidence to support causation, and reversed and rendered the judgment. We granted rehearing en banc, heard oral argument before the entire court, and now AFFIRM the judgement below in part and REVERSE in part. We REVERSE that part of the judgement that awards punitive damages, but otherwise AFFIRM.
I.
Procedural History
Marilyn and Ernest Havner sued Merrell Dow Pharmaceuticals and Dr. David Bruce on behalf of their daughter, Kelly. Kelly was born with defect of her right hand; her fingers are not fully formed. During her pregnancy, Marilyn Havner took Bendectin prescribed by Dr. Bruce. The Havners claim that the Bendectin caused Kelly's birth defect.
The case against Merrell Dow was tried for four weeks in September 1991. The jury found that Merrell Dow was negligent, that its negligence proximately caused Kelly's birth defect, that Bendectin was defectively designed and marketed, and it awarded $3.75 million in actual damages. The verdict was signed by ten jurors.
The punitive damages portion of the trial was bifurcated. The jury found Merrell Dow to be grossly negligent and awarded $30 million in punitive damages. The verdict was not unanimous and ten different jurors signed the punitive damages charge.
Judgement was entered June 1, 1992, awarding $3.75 million in actual damages, prejudgment interest in the amount of $15 million, and $20,205,821.80 in punitive damages. The punitive damages were reduced from the verdict amount pursuant to section 41.007 of the Civil Practice and Remedies Code. It is from this judgement that Merrell Dow appeals.
Merrell brings four categories of complaints: legal and factual sufficiency of the evidence of scientific causation; that the same ten jurors did not find both liability and actual damages that found gross negligence; a challenge to the award of punitive damages; and several evidentiary challenges.
II. Legal Sufficiency of the Evidence
A. Standard of Review
In reviewing a "no evidence" point of error, we consider the evidence and reasonable inferences therefrom in the light most favorable to the jury's finding and we disregard all contrary evidence and inferences. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Merrell claims that there is no evidence to support the jury's finding of causation between Bendectin and Kelly Havner's birth defect. Although the Havners put on extensive scientific evidence in support of their claims, Merrell contends that the evidence offered was not reliable, and thus not helpful to the jury. Even if the challenged evidence was admissible, Merrell contends that it is in effect "no evidence" because it is too weak to do more than create a suspicion of causation. Merrell claims that the Havners' experts did no more than mouth the "magic words" of reasonable medical or scientific probability and that there is no basis in the evidence to support their stated conclusions.
The Havners attempted to do two things with their experts: 1) establish
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