ignored this evidence in its testing, promotion and marketing of the drug. The quarrel plaintiffs have with various reports and test results does not rise to clear and convincing evidence that the necessary elements of knowledge or false representation exist.
Second, plaintiffs' claim that Merrell caused false and misleading articles and advertisements to be printed is not supported by clear and convincing evidence. In connection with this claim, plaintiffs point to only one article, published by Dr. Nulsen. They apparently contend that Merrell, by not appearing in the Journal as co-author of the article, falsely represented by its silence that the article was written by an independent, unaffiliated researcher. Even if this evidence rises to a "false representation" under the law, plaintiffs have provided no evidence that the authorship of this article was material to Ms. Griffin's decision to use Bendectin or that anyone including the plaintiffs or Ms. Griffin's physician - justifiably relied on such a "statement."
Further, plaintiffs claim that Merrell deceived doctors who inquired about Bendectin's safety. Principally, plaintiffs point to the Bunde-Bowles study, which was published in a medical journal, direct-mailed to physicians, and present on Bendectin's detail card used to market Bendectin to physicians. Plaintiffs do not contend that the data yielded in the study were false, or that Merrell ever inaccurately reported the results of the study. They further do not deny that the Bunde-Bowles study was the only study during the 1960s and 1970s of its scope. In support of this theory, plaintiffs also rely on Lamb's letter to Dr. Jensen. No false statement was made therein, and the Court cannot draw any inference of fraud therefrom. Even were the Court able to do so, there is no evidence that Ms. Griffin's physician relied on the letter when prescribing Bendectin. Plaintiffs' challenges to the use of the Bunde-Bowles study to market Bendectin, including Lamb's letter to Jensen, do not rise to clear and convincing evidence of fraudulent misrepresentations.
Finally, plaintiffs claim that Merrell fraudulently reported or concealed Bendectin test data from the FDA. No misrepresentations appear in the data Merrell reported to the FDA, and all data on Bendectin was provided to the FDA prior to 1979. The single exception was data from the Staples study. The FDA Commissioner for the time period when data was allegedly concealed (i.e., when it was generated in 1963, and when Project Report E-66-05 was submitted in 1966), testified that Bendectin would have remained on the market as a pregnancy antinauseant even if the additional Staples data had been submitted. Plaintiffs have Produced no evidence to rebut this statement, and any contention that other FDA action might have been forthcoming (i.e., use restrictions or warnings) is simply too speculative to meet the standard of clear and convincing evidence. Further, since all the data was provided to the FDA by the time Ms. Griffin was prescribed Bendectin, any inference of causation would at best be tenuous and speculative.
Plaintiffs have had ample opportunity to conduct discovery, and have been unable to oppose the motion for summary judgment with anything but unsupported allegations and innuendos. They nonetheless suggest that since the complex factual nature of product liability cases often precludes the grant of summary judgment defendants' motion should be denied. E.g., Gracyalny v. Westinghouse Electric Corporation, 723 F.2d 1311, 1316-17 (7th Cir. 1983) (reversing summary judgment in product liability case because of numerous unresolved issues concerning the reasonableness and adequacy of the defendant manufacturer's warnings). However, the issue before the Court on this motion is one of fraud, and the mere fact that it is presented in conjunction with a product liability claim is not enough to bar summary judgment. The facts needed to support plaintiffs' fraud claim are more easily proved than general negligence questions of reasonableness of conduct, foreseeability and proximate cause. A "policy" favoring jury trials in tort cases cannot overcome a motion for summary judgment when plaintiffs have presented no facts of sufficient degree of legal probative force to create a genuine dispute. Cf. Hughes v. American Jawa, Ltd., 529 F.2d 21, 25-26 (8th Cir. 1976) (expert's deposition testimony raised factual question on issue of causation, making summary judgment inappropriate; court emphasized "policy favoring plenary trials" in tort cases). Indeed, in light of the even-handed approach to summary judgment the Supreme Court has mandated in Celotex Corporation, slip op. at 10, it is questionable whether courts may continue to conduct a policy-oriented resolution of summary judgment motions. Rather, summary judgment is given significant procedural strength, and is raised as a bulwark against claims based on speculation and inference.
Litigants are provided a panoply of pre-trial procedures, intended to uncover evidence and streamline the presentation of a case to the jury. Summary judgment is a necessary complement to the liberal rules of pleading and discovery available in federal court. Having had the benefit of full discovery as well as the trial testimony of many key participants in earlier trials, plaintiffs cannot now fall back on policy to oppose defendants' summary judgment motion on the issue of fraud. Viewing the evidence in the record on the issue of fraud through the "prism" of the clear and-convincing evidentiary standard, it is apparent that there are no genuine issues of material fact, and Merrell is entitled to judgment as a matter of law.
2. Punitive Damages Claim
Punitive damage awards are disfavored under District of Columbia law, and to merit their grant the conduct complained of must be "willful and outrageous, constitute gross fraud, or be aggravated by evil motive, active malice, deliberate violence or oppression." Mariner Water Renaturalizer of Washington, Inc. v. Aqua Purification Systems, Inc., 214 U.S. App. D.C. 248, 665 F.2d 1066, 1071 (D.C. Cir. 1981) (applying District of Columbia law). Wanton and reckless disregard for the rights of others will support an award of punitive damages, but gross negligence will not suffice. E.g., Knippen v. Ford Motor Company, 178 U.S. App. D.C. 227, 546 F.2d 993, 1002, 1003 (D.C. Cir. 1976). Punitive damages are awarded to punish and deter outrageous conduct, and the question in this case is whether defendant Merrell's conduct "contains elements of intentional wrongdoing or conscious disregard" for plaintiffs' rights. Id., at 1002; Nader v. Allegheny Airlines, Inc., 167 U.S. App. D.C. 350, 512 F.2d 527, 549-50 (D.C. Cir. 1975), rev'd on other grounds, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978 (1976). The elements justifying punitive damages must be "clearly established." E.g., Darrin v. Capital Transit Co., 90 A.2d 823, 825 (D.C. Mun. App. 1952). In the context of product liability actions, this burden has been equated with the clear and convincing standard of proof. See, e.g., Acosta v. Honda Motor Co., Ltd., 717 F.2d 828, 839 (3d Cir. 1983) (discussing punitive damages in strict liability context, applying Virgin Islands law); Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 850-51 (2d.Cir. 1967) (applying New York law). Viewing the evidence of record, it does not appear to the Court that even a preponderance of the evidence proffered by plaintiffs demonstrates that Merrell's conduct was "outrageous" or otherwise of such a character to permit imposition of punitive damages. The evidence certainly does not rise to the "clear and convincing" standard recognized as appropriate in similar actions. Since plaintiffs have failed to present sufficient evidence from which punitive damages could be awarded, their claim must be dismissed. Accord Koller, C.A. No. 80-1258, slip op. (D.D.C. February 24, 1983) (granting summary judgment on fraud and punitive damages); Mekdeci, C.A. No. 77-225-Orl.-Civ-Y (M.D. Fla. January 21, 1981) (same). Contra Richardson, C.A. No. 83-3505, slip op. (D.D.C. June 9, 1986) (summary judgment on fraud and punitive damages denied without prejudice); Oxendine, C.A. No. 1245-82, slip op. (D.C. Super. Ct. April 29, 1983) (same); Cordova, C.A. No. 432856 (Cal. Sup. Ct.) (same).
B. Plaintiff's Motion for Summary Judgment on Causation Issue
Plaintiffs look to the reinstated jury verdict against Merrell in the Oxendine trial in support of their claim that collateral estoppel should preclude Merrell from litigating causation in this case. While "offensive" collateral estoppel is permitted, the Supreme Court has stated that it should not be allowed when its application would be unfair to the defendant. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). In particular, offensive collateral estoppel would likely be unfair to a particular defendant if there are inconsistent previous decisions. Id. This Circuit reached such a conclusion in Jack Faucett Associates v. A T & T, 240 U.S. App. D.C. 103, 744 F.2d 118, 131 (D.C. Cir. 1984), noting that it was an abuse of discretion for the lower court to have used one decision as the basis for offensive estoppel while ignoring other decisions. Plaintiffs are asking the Court to don blinders in considering their motion. Faced with the inconsistent verdicts against Merrell on the issue of causation in Bendectin product liability cases, offensive collateral estoppel is not appropriate. Plaintiffs' motion for summary judgment should be denied.
C. Standard's Motion to Dismiss
Plaintiffs contend that Standard, when it filled Ms. Griffin's physician's presciption, negligently breached its independent duty to advise and warn her of the risks of Bendectin. They also contend that Bendectin was an unreasonably unsafe, defective product and that Standard is strictly liable for the injuries they claim. Standard has moved to dismiss both claims.
No District of Columbia court has ruled whether pharmacies have a common-law duty to warn customers of the risks associated with the prescription drugs they purchase. Under Maryland law, to which this Court turns for guidance, such a duty has been specifically rejected, for sound policy and legal considerations. E.g., Johnson v. Richardson-Merrell, No. B-83-3814, slip op. at 5 (D.Md. June 1, 1984). In Johnson, as here, relief was sought for injuries allegedly caused by Bendectin. Ms. Johnson's doctor had prescribed the drug, and the defendant pharmacy filled the prescription correctly. Id. at 4. There, as here, there was
no allegation that the pharmacy did any compounding or changed the drug in any way after receiving it from the manufacturer, nor [was] there an allegation that the pharmacy substituted a different brand or a generic version for the brand prescribed, Bendectin. There is therefore no showing that the pharmacy exercised any independent discretion, skill or knowledge, in filling the prescription.
The court was unwilling to impose a duty to warn on pharmacies, reasoning that such a duty would, in effect, require a pharmacy to substitute its judgment for that of the prescribing physician. Id. at 3-4. Plaintiffs have not cited a single case imposing a like duty on pharmacies. The reliance they place on D.C. Code § 2-2002 is misplaced.
That section of the Code was not enacted at the time Standard filled Ms. Griffin's prescription, and there was no analogous provision in effect. The Court makes no determination whether § 2-2002 imposes an actionable duty on pharmacies. Thus, even assuming for the purpose of this motion that Standard knew Bendectin was teratogenic, it had no duty to warn Ms. Griffin.
As a result, plaintiffs' strict liability claim fares little better. The District of Columbia has adopted the strict liability position of § 402A of the Restatement (Second) of Torts, which makes a seller liable for marketing a defective, unreasonably dangerous product. See e.g., Berman v. Watergate West, Inc., 391 A.2d 1351 (D.C. App. 1978); Cottom v. McGuire Funeral Service, Inc., 262 A.2d 807 (D.C. App. 1970). Comment k makes an exception to the strict liability rule for products such as drugs, which are unavoidably unsafe due to risks associated with and inherent in their use. If a drug is accompanied by adequate warnings of the risks involved, it is neither "defective" nor "unreasonably unsafe" under § 402A. As one court has noted, "in this respect, comment k simply adopts the ordinary negligence concept of duty to warn." Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir. 1969). Pharmacies in the District of Columbia do not have any common law duty to warn when they merely dispense a prescription drug, and the limited liability available under § 402A, Comment k could not attach.
Even if some residual duty were to be found, the District of Columbia has already recognized that the "adequacy" of a warning under § 402A is affected by the manner in which a product is distributed. Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 722-23 (D.C. App. 1985) (adequacy of warnings accompanying permanent hair wave solution that was to be distributed only through licensed beauticians). In Payne, the court held that when "advertising did not induce purchase of the product, but the purchase was recommended by an intermediary who is a professional, the adequacy of the [warnings] must be judged in relationship to that professional." Id. at 722 n.10. This is consistent with comment c's justification for strict liability: the public's forced reliance upon a seller who markets products for consumer use. § 402A, Restatement (Second) of Torts, Comment c. As construed by the courts, a patient relies upon her physician not her pharmacy to warn her of risks associated with prescription drugs. Thus, since in the District of Columbia a pharmacy plays no role in establishing the narrow scope of strict liability under § 402A, comment k, it cannot be held liable under plaintiffs' second theory. Plaintiffs' claims against Standard must therefore be dismissed. An order consistent with the above conclusions accompanies this opinion.
Thomas F. Hogan, United States District Judge.
O R D E R
In accordance with the accompanying opinion, it is this 8th day of August, 1986,
1) defendant Merrell's motion for summary judgment on the issues of fraud and punitive damages is granted;
2) plaintiffs' motion for partial summary judgment on the issue of causation is denied; and
3) defendant Standard's motion to dismiss all claims against it is granted, and Counts VIII and IX of the complaint are hereby dismissed.