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MERRELL DOW WILL APPEAL FIRST BENDECTIN PUNITIVE DAMAGES AWARD

Executive Summary

MERRELL DOW WILL APPEAL FIRST BENDECTIN PUNITIVE DAMAGES AWARD made by a jury in a case decided Jan. 20 in Philadelphia Court of Common Pleas. The company said in a press release that "it will take all necessary steps to reverse this verdict and obtain a ruling in its favor." The jury awarded $2 mil. -- half of that in punitive damages -- to a Philadelphia child whose mother took Bendectin prior to giving birth. The punitive award is the first ever made in Bendectin litigation. Merrell Dow maintained that it believes "multiple errors occurred throughout the trial which provide the support for reversal of this verdict." The company said that "the verdict is not consistent with the strong and continually growing scientific evidence that Bendectin does not increase the risk of birth defects." The firm disputed claims by the plaintiffs that in the Philadelphia case new evidence linking Bendectin to birth defects was presented to a jury for the first time. The firm has had recent success in reversing a jury verdict in a Bendectin case. In December, trial Judge Thomas Jackson of the District Court for the District of Columbia overturned a jury finding in favor of a plaintiff in a Bendectin case. The judge's decision overturned a Sept. 18, 1986 jury verdict in favor of the plaintiff, a 10 year old girl with limb malformities allegedly caused by Bendectin. Jackson said "there is now nearly universal scientific consensus that Bendectin has not been shown to be a teratogen" and "reasonable jurors could not reject that consensus without indulging in . . . speculation and conjecture." After hearing the evidence presented Judge Jackson concluded: "No reasonable jury could find on the basis thereof that this infant plaintiff's birth defects were more likely than not to have been caused by her intrauterine exposure to Bendectin." Merrell Dow was represented by the D.C. firm Collier, Shannon, Rill & Scott. There have been eight other trials concerning Bendectin in the U.S., Merrell Dow said. In one 1985 trial, which included 1,150 plaintiffs in a Cincinnati U.S. District Court, a jury ruled that Bendectin did not cause birth defects. Jury verdicts were in favor of Merrell Dow in four other trials. In two other 1986 cases, one concluded in a mistrial and in the other no verdict was reached. Merrell Dow has a petition pending for a rehearing of a 1983 case by the Court of Appeals, the firm noted. In 1986, the trial judge's ruling that the evidence presented was not sufficient to prove Bendectin's teratogenicity was overturned and the original jury's verdict in favor of the plaintiff was restored. Two cases outside of the U.S. were decided in favor of Merrell Dow's West Germany subsidiary in January 1986, according to the firm. Currently Merrell Dow has over 300 Bendectin lawsuits that have not yet gone to trial, the company said.
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