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Thompson v. Merrell Dow Pharmaceuticals Inc.12/7/1988
[229 NJSuper Page 232] Plaintiffs John Thompson, an infant, by his Guardian ad litem, Carol Thompson, and Carol Thompson, individually instituted a malpractice action against defendants for deformities sustained at birth by John as a result of Carol's ingestion
of Bendectin during the early stages of her pregnancy. The drug is manufactured by defendant Merrell Dow Pharmaceuticals, Inc. (Merrell Dow) and was allegedly prescribed by defendant obstetricians Massimo Maresca, M.D. and William Kaufman, M.D., trading as Shore Ob/Gyn, plaintiff's original obstetricians.
Plaintiffs filed an action against Merrell Dow for breach of expressed and implied warranties of fitness and merchantability, and strict liability in the manufacture and distribution of a defective product. Plaintiffs contend that the doctors were negligent in prescribing the drug and failing to warn plaintiff Carol Thompson of its dangers. They also contend that the doctors are liable under the concept of strict liability. Plaintiff John sued for the birth defects he sustained as the result of his mother's ingestion of the drug, and plaintiff sued for loss of consortium.
Summary judgment was entered in favor of defendant doctors after plaintiff conceded that she had no medical expert who could testify that they had deviated from acceptable standards of medical care in allegedly prescribing the drug to her. The motion judge also rejected plaintiffs' claim under strict liability against the medical doctors. After commencement of the trial against Merrell Dow, the trial judge refused to qualify plaintiffs' expert as a witness on the issue of causation. Since plaintiff had no other expert on that issue, the trial court granted defendants' motion for a judgment of involuntary
dismissal. R. 4:37-2(b). Plaintiffs also challenge an order which bifurcated the issues of liability and damages.
Plaintiff further challenges the trial court's refusal to allow her to introduce into evidence the transcripts or video taped testimony of 12 expert witnesses who had testified at a consolidated proceeding in the United States District Court in Ohio. In re Richardson-Merrell, Inc. Bendectin Products, 624 F. Supp. 1212 (S.D.Ohio 1985), aff'd in part, vacated in part, and remanded, sub nom. In re Bendectin Litigation, 857 F.2d 290 (6th Cir.1988) (hereinafter Bendectin Products). This action was brought by a group of plaintiffs who sued Merrell Dow for birth defects allegedly caused by Bendectin.
Essentially, the relevant facts concerning the legal issues raised are not in dispute. Plaintiff became pregnant sometime during the end of May or the beginning of June 1980. She first consulted with Drs. Maresca and Kaufman in August 1980. She testified that beginning in June she was nauseous every morning and that she vomited and felt light-headed. On her first visit Dr. Kaufman gave her an internal examination and some vitamins and iron. On her second visit, approximately two weeks later, she stated that Dr. Kaufman gave her a prescription for Bendectin for her symptoms. She claimed that she had the prescription filled and took approximately three pills each day for a period of two weeks until the prescription ran out. Since she did not feel any better, she spoke to Dr. Wiley, her family physician who advised her to stop taking the Bendectin. She testified she took no other drugs before her son, John, who was born on March 1, 1981, was delivered by another doctor. It was stipulated that John was born with three birth defects: an imperforate anus, one kidney, and a microphalalmic (abnormal
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