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06/25/91 MERRELL DOW PHARMACEUTICALS v. MARY

June 25, 1991

MERRELL DOW PHARMACEUTICALS, INC., APPELLANT
v.
MARY VIRGINIA OXENDINE, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Richard S. Salzman, Trial Judge

Steadman, Associate Judge. Belson, Associate Judge, Retired.* Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: Steadman

The issue in this appeal, the third that has been taken in this long-running litigation, is whether a trial court may enter an immediately enforceable and appealable "final judgment" under Super. Ct. Civ. R. 54(b) on a claim where the question of punitive damages remains to be tried. We hold that it has no such power under the rule or otherwise.

I

In February of 1982, appellee Mary Oxendine brought a product liability action against appellant Merrell Dow Pharmaceuticals, Inc. ("Merrell Dow"), alleging her birth defects were caused by her mother's ingestion of Bendectin, a product manufactured by Merrell Dow, during pregnancy. The trial court bifurcated Oxendine's compensatory and punitive damages claims. In May 1983, a jury found Merrell Dow liable and awarded Oxendine $750,000 in compensatory damages. The trial court granted Merrell Dow's motion for a judgment notwithstanding the verdict, which we reversed, ordering the verdict in favor of Oxendine reinstated. Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100 (D.C. 1986) (Oxendine I). Subsequently, Merrell Dow moved for a new trial based on the discovery that Oxendine's expert witness had "grossly misrepresented" his credentials. The trial court agreed. On appeal, the trial court was reversed and the verdict once again reinstated. Oxendine v. Merrell Dow Pharmaceuticals, Inc., 563 A.2d 330 (D.C. 1989) (Oxendine II). Upon remand, the trial court decided to postpone the trial of punitive damages while the Supreme Court considered in a then pending case the constitutionality of punitive damage awards. *fn1 At the same time, the trial court, believing that "appellate review of [the compensatory damages claim was] effectively complete" and finding "no just reason for further delay," entered final judgment with respect to compensatory damages. *fn2 Merrell Dow now appeals this action. *fn3

II

A.

Rule 54(b) provides in pertinent part that:

When more than 1 claim for relief is presented in an action, . . . the Court may direct the entry of final judgment as to 1 or more but fewer than all of the claims . . . upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment.

The Supreme Court, interpreting Fed. R. Civ. P. 54(b), which is the federal counterpart of the rule in question, *fn4 has squarely held that, where a single defendant is involved, *fn5 the rule "'does not apply to a single claim action . . . . It is limited expressly to multiple claims actions in which "one or more but less than all" of the multiple claims have been finally decided and are found otherwise to be ready for appeal.'" Liberty Mutual Insurance Co. v. Wetzel, supra note 3, 424 U.S. at 742-43, (citation omitted). In that case, the district court had purported to enter a final judgment under Rule 54(b) only on the issue of the defendant's liability; it had made no determination as to the relief to be afforded. Absent such a determination, the Court held, Rule 54(b) did not authorize the entry of a final judgment. *fn6 Since no basis existed for an interlocutory appeal, the Court ordered the appeal dismissed for want of jurisdiction.

The issue before us, then, is whether the claim for compensatory damages *fn7 may be considered a "claim for relief" separate from that for punitive damages. In Liberty Mutual, the Court eschewed any "definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules." 424 U.S. at 743 n.4. However, noting that the complainant sought various remedies, including an injunction, compensatory and exemplary damages, and attorneys' fees, the Court specifically noted that a "complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief." Id.

Likewise, the United States Court of Appeals for the District of Columbia Circuit has adopted the following "rule of thumb" for determining whether claims are separate for purposes of Rule 54(b): When "'claims so closely related that they would fall afoul of the rule against splitting claims if brought separately, they do not qualify as "separate" claims'" under Rule 54(b). Tolson v. United States, supra note 7, 235 U.S. App. D.C. at 399, 732 F.2d at 1001 (citation omitted). The court noted that this "rule of thumb" was reflected in the circuit's leading decision on the definition of a claim, Gold Seal Co. v. Weeks, 93 U.S. App. D.C. 249, 256-57, 209 F.2d 802, 809-10, 100 U.S.P.Q. (BNA) 79 (1954), a holding that is binding upon us under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971). There can be no serious doubt that a party cannot bring an action seeking compensatory damages and thereafter bring a separate action seeking punitive damages; res judicata would be an insuperable bar. Tolson v. United States, supra note 7, 235 U.S. App. D.C. at 400, 732 F.2d at 1002.

Accordingly, it is not surprising that the only cases we have found squarely addressing the issue of whether damages may be divided for purposes of entry of final judgment under Rule 54(b) hold that they may not. Thus, in International Controls Corp. v. Vesco, 535 F.2d 742 (2d Cir. 1976), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978), a purported final judgment under Rule 54(b) had been entered against the defendant, but the judgment afforded the plaintiff the opportunity to prove additional damages in subsequent proceedings. The court rejected plaintiff's argument, akin to that of appellee here, that the judgment could be final "as long as it specifies some amount of damages which the plaintiff can collect." 535 F.2d at 746. On the contrary, the court held, "because the judgment leaves that option [of seeking additional damages], it cannot be viewed as final." Id. at 747. *fn8 Likewise, in Wheeler Machinery Co. v. Mountain States Mineral Enterprises, Inc., 696 F.2d 787, 789 (10th Cir. 1983), the court held that a judgment awarding a principal sum but reserving the matter of interest on that amount was not final for purposes of Rule 54(b).

The Second Circuit may have expressed the guiding principle most succinctly in Acha v. Beame, 570 F.2d 57, ...


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