PA Jury Awards $2 Million in Bendectin Suit

Pennsylvania - New Jersey - New York - Nationwide

By STAFF WRITER
MONDAY, FEBRUARY 2, 1987

Litigation against the makers of the morning-sickness drug Bendectin took a dramatic turn last week when a state court jury in Philadelphia awarded $2 million - half of it in punitive damages - to a child who claimed the drug was responsible for his being born with severely deformed feet. The Jan. 20 award marked the first time in the generally unsuccessful history of Bendectin lawsuits that the manufacturer, Merrell Dow Pharmaceutical Co. Inc. of Cincinnati, has been hit with punitive damages. It was the largest award of general damages to date, the first time a plaintiff has won outside of Washington, D.C., and only the third Bendectin trial the company has lost. Blum v. Merrell Dow, No. 1027 (September Term, 1982). Plaintiffs' attorney Thomas R. Kline described the $1 million punitive award as a "landmark and a breakthrough." "We presented evidence in this trial that jurors had not heard before," said Mr. Kline of Philadelphia's Beasley, Hewson, Casey, Colleran, Erbstein & Thistle. "I can see the evidence getting better and stronger in Bendectin cases all the time." Mr. Kline has Bendectin trial scheduled over the next several months.

Inconclusive
Defense counsel Joseph E. Conley Jr. of Cincinnati's Dinsmore & Shohl disagreed any new evidence had been heard and said he would move to have the verdict set aside. "Those studies have been around for years," he said. "Universally, everybody has concluded that Bendectin does not cause an increased rate of malformations." In a prepared statement, Merrell Dow, a subsidiary of Dow Chemical Co., said, "The safety of Bendectin has been well-supported by over 35 published epidemiologic studies or reports [and] the evidence in this trial did not show that Bendectin causes birth defects in general or caused this child's birth defects specifically." Prescribed to combat nausea during pregnancy, Bendectin was used by about $3 million women between 1957 when it went on the market and 1983, when Merrell Dow withdrew the product in the face of mounting lawsuits. Nationally, litigation over Bendectin has not been conclusive. In nine U.S. trials, Merrell Dow has won four times and plaintiffs now have won three, while one case ended in mistrial and another in a hung jury. Two other plaintiffs' verdicts are still on appeal. The most significant case, a multi-district litigation action involving 1,150 plaintiffs, was decided in favor of the company in March 1985 and is now on appeal. According to Mr. Kline, the punitive damage award stemmed largely from testimony that Merrell Dow's own researchers discovered as early as 1962 that the offspring of animals given Bendectin had an increased incidence of mutation, but that the company failed to report those findings to the Food and Drug Administration.