must be independently dispositive on the issue for which it is offered,
or else be excluded. The Ambrosini court specifically rejected this
proposal, finding that, just because "Dr. Strom's testimony alone may be
insufficient . . . to survive summary judgment does not necessarily
defeat its admissibility under the fitness prong of Daubert." Ambrosini,
101 F.3d at 136.
C. Dr. Smith's Testimony
Dr. Robert L. Smith seeks to testify that "the birth defects noted in
the deceased child . . . were induced by his mother's ingestion of
Provera during her very early pregnancy." Declaration of Smith at 2. The
defendant opposes the admissibility of this testimony, asserting that
Dr. Smith is unqualified to render a medical opinion in this case, and
that his scientific methodology is unreliable. The Court disagrees on
It is true that Dr. Smith is not a physician. But that does not
automatically render him ineligible to testify on scientific matters
pertaining to the human body. Rather, the key to qualifying him as an
export is his knowledge, not his academic degree. See Kumho Tire, 526
U.S. at 147, 119 S.Ct. 1167 (holding that non-scientifically trained
witnesses, such as auto mechanics, may qualify as experts under Rule 702
and Daubert). Dr. Smith describes himself as a "neuroscientist
specializing in the effects of chemical exposure during pregnancy on fetal
development." Declaration of Smith at 1. His curriculum vitae confirms
this assertion. He is a full professor at George Mason University and is
a member of the Neurobehavioral Teratology Society.*fn3 Dr. Smith has
published extensively on subjects similar to the one at hand in this
case, and has been invited to present his findings just as often. He has
received substantial funding from public and private organizations, and
his work has been cited by numerous physicians and non-physicians in
their own studies. In short, Dr. Smith is a firmly established member of
the scientific community which studies birth defects and their causes. He
is thus appropriately qualified to give testimony in this case.*fn4
The defendant also objects to the methodology used by Dr. Smith in
forming his opinion. In forming his opinion, Dr. Smith relied on the
medical records in this case, numerous studies relevant to this matter,
and his many years of personal experience on the subject.*fn5 After this
research, Dr. Smith concluded that Provera is a teratogen, that there
exists a biologically plausible mechanism by which Provera could cause
the birth defects alleged in
this case, and that there is no specific alternative causal explanation
for the alleged birth defects. In commenting on his methodology, he
further stated that his "analysis in this matter is consistent with
conventional scientific methodology of deriving a thesis logically from
confirming evidence in the absence of evidence negating the plausibility
of the thesis." Declaration of Smith at 8. Given this methodology, the
Court is unable to say that Dr. Smith's conclusions are not "ground[ed]
in the methods and procedures of science." Daubert, 509 U.S. at 590, 113
S.Ct. 2786. Dr. Smith draws his opinion from a comprehensive review of
the applicable literature, and elaborates on each step of his analysis.
He also addresses studies that might seem to contradict his conclusion,
stating why he believes he is still correct. Most persuasive to this
Court, the Ambrosini court approved of methods which are strikingly
similar to those used by Dr. Smith. Like the physician in Ambrosini, Dr.
Smith also "identified [the] animal, pharmacological, and human studies
that he relied on" and "follow[ed] the traditional methodology of experts
in his field." Ambrosini, 101 F.3d at 137. Thus, Dr. Smith's procedures
are not only well grounded in the scientific method, but also accepted by
this circuit as meeting the first prong of Daubert.
The opinions of Drs. Strom and Smith, viewed under Rule 702, Daubert
and Ambrosini, are thus admissible. The defendant's motion to exclude is
therefore denied. The Court now considers the defendant's summary
III. Defendant's Motion for Summary Judgment Based on inadequate Evidence
that Provera Caused the Injuries in Question
The defendant's assertion of inadequate evidence on this ground was
predicated on the plaintiff's experts being excluded. As detailed above,
the defendant's motion to exclude was denied, making the disposition of
this motion therefore quite clear. Nonetheless, completeness demands a
short explanation of the reasoning behind the decision.
The plaintiff's experts argue that Provera is capable of causing, and
did in fact cause, birth defects in the plaintiff's child. As this
testimony is admissible, the Court finds that there is a "genuine issue
as to . . . material fact." Fed.R.Civ.P. 56(c). Accordingly, defendant's
motion for summary judgment on inadequate proof that Provera caused the
birth defects in question is denied.
IV. Defendant's Motion for Summary Judgment Based on inadequate Evidence
of Substandard Care
The plaintiff alleges that the defendant rendered substandard care to
her in two ways: (1) he prescribed Provera to her while she was
pregnant, and (2) he failed to inform her of the risks of prenatal
exposure to Provera once he knew she was pregnant. The defendant argues
that neither of these assertions are supported by evidence. The Court
disagrees and denies the defendant's motion.
A. Evidence of Substandard Care in Prescribing Provera
To survive the defendant's motion, the plaintiff must offer evidence
sufficient for a reasonable jury to conclude that prescribing Provera to
the plaintiff was substandard care. The plaintiff, through the
straightforward testimony of Dr. S. James Dispenza, has satisfied this
burden. In response to a question about the appropriateness of the
defendant's prescription, Dr. Dispenza stated "I think [the defendant's
use of Provera] is an inappropriate use of a hormone in this patient."
Deposition of S. James Dispenza at 37. Later, when probed as to why, Dr.
Dispenza explained that the defendant, in using a urine pregnancy test,
had failed to conclusively rule out pregnancy which would make Provera
an inappropriate prescription. The following excerpt illustrates this:
Q. [W]ithin a reasonable degree of medical certainty,
. . . [is it] your opinion that [the plaintiff's
condition] required another type of test [besides the
urine pregnancy test]?
Q. What test was that?
A. A blood pregnancy test.
Deposition of S. James Dispenza at 38.
It is of course likely that this testimony will be contradicted by the
defendant's experts. But that is not the question for the Court. Rather,
as long as the evidence is sufficient for a reasonable jury to find
substandard care, summary judgment is inappropriate. Dr. Dispenza's
testimony clearly meets this threshold.
B. Evidence of Substandard Care in Not Informing the Plaintiff of
To survive the defendant's motion, the plaintiff must produce evidence
sufficient for a reasonable jury to find the defendant deviated from the
standard of care in not informing the plaintiff of Provera's risks. The
plaintiff has satisfied this burden.
The defendant admits that he did not inform the plaintiff of Provera's
risks, but claims that he is not at fault because she failed to return
for a subsequent appointment at which he was planning to apprise her of
the risks. Like the above issue, the testimony of Dr. Dispenza is
dispositive on the matter. Regarding the plaintiff's October 17, 1992
visit, Dr. Dispenza was asked:
Q. Do you have an opinion one way or the other whether
or not it is a deviation from the standard of care
for Dr. Winfield at that October 17 visit, [to]
fail to at least apprise [the patient] of the
information contained in the [Physician's Desk
Reference] warning box?
Q. What is that opinion?
A. That it is a deviation.
Deposition of Dr. S. James Dispenza at 61.
The defendant tries to advance his summary judgment motion by using
another portion of Dr. Dispenza's testimony. Prior to the above
statement, Dr. Dispenza testified that the defendant did not deviate from
the standard of care in failing to warn the plaintiff when she failed to
keep her appointment. Deposition of Dr. S. James Dispenza at 46-47. The
defendant misapprehends Dr. Dispenza's testimony. Dr. Dispenza expressed
two opinions on the defendant's failure to warn. First, according to Dr.
Dispenza, the defendant deviated from the standard of care in failing to
warn the plaintiff when she was in his office. Second, the defendant did
not deviate from the standard of care in failing to warn to patient after
she left his office. Thus, the plaintiff does have evidence that the
defendant's failure to warn was substandard care. Accordingly, the
defendant's summary judgment motion is denied.
V. Defendant's Motion for Summary Judgment Based on inadequate Evidence
that the Failure to Warn Caused the Child's Birth
To survive the defendant's motion, the plaintiff must offer sufficient
evidence for a reasonable jury to conclude that she would have terminated
her pregnancy if informed of Provera's risks. The plaintiff has met this
burden. In her affidavit she stated, "If [the defendant] had told me that
there was any possibility that I could end up with a child with any sort
of birth defects because of the Provera I took, I would have wanted to
terminate the pregnancy." Dyson Aff. at ¶ 4.
The defendant rightly suggests that a pertinent issue here is whether a
reasonable person would terminate a pregnancy after such a warning. See
Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972) (applying District of
Columbia law). But the defendant is incorrect in asserting that the
plaintiff has not presented such evidence. As this jurisdiction's leading
case on physician warnings put it,
If adequate disclosure could reasonably be expected to
have caused that person to decline the treatment
because of the revelation of the kind of risk or
danger that resulted in harm, causation is shown. . . .
The patient's testimony on that score is relevant. . . .
Id. at 791. The plaintiff's affidavit supplies sufficient evidence for a
jury to conclude that a reasonable person would have chosen to terminate
the pregnancy when properly warned. The defendant's motion is thus
VI. Defendant's Motion for Dismissal of Plaintiff's Claim for Emotional
Distress and Extraordinary Child Rearing Expenses
The plaintiff seeks compensation for her emotional distress and child
rearing expenses. The defendant argues that such claims are not
recoverable under the District of Columbia's Wrongful Death and Survival
statutes. See 12 D.C.Code § 101 (1967); 16 D.C.Code §
2701 (1967). For the following reasons, the Court grants the defendant's
motion to dismiss these claims.
In the District of Columbia, "if a tort results in death, two causes of
action arise, one under the Survival Statute and the other under the
Wrongful Death Act." Graves v. U.S., 517 F. Supp. 95, 99 (D.D.C. 1981)
(citations omitted). "Each of these causes of action has its own elements
of damages." Id. (citing Runyon v. District of Columbia, 463 F.2d 1319,
1321 (D.C.Cir. 1972)). The Survival statute permits recovery for what the
"deceased would have been able to recover had he lived." Graves, 517 F.
Supp. at 99. The Wrongful Death Act permits a deceased's guardian or next
of kin to recover for the financial loss caused to that party by the
death. The claimant may recover for personal financial losses including
the "reasonable expenses of last illness and burial." § 16-2701.
However, a claimant "may not be compensated for [its] grief." Runyon, 463
F.2d at 1322. See also Hughes v. Pender, 391 A.2d 259 261 n. 2 (D.C.
The above law makes it clear that the plaintiff may not recover for
emotional distress. A slightly more difficult issue is presented,
however, by her claim for child rearing expenses. It might be argued
that, since her child was born with chronic birth defects which
eventually led to his death, the defects lasting his whole life would
constitute his "last illness" and thus permit recovery for care during
this period. The Court is not convinced that such an extended
interpretation is consistent with wrongful death statutory scheme. As
Washington D.C.'s highest court has recognized, the Wrongful Death Act is
a "derogation from the common law" and therefore must be "strictly
construed." Waldon v. Covington, 415 A.2d 1070, 1076 n. 17 (D.C. 1980)
(citing Pitts v. District of Columbia, 391 A.2d 803, 807 (D.C. 1978)).
The Court thus grants the defendant's motion for dismissal of the
plaintiff's claims for extraordinary child rearing expenses.
VII. Defendant's Motion for Dismissal of the Plaintiff's Punitive Damages
The Court is unable to understand the defendant's motion regarding
punitive damages. A careful reading of the plaintiff's complaint reveals
no claim for punitive damages. Thus, the defendant's motion is denied.
VIII. Defendant's Motion for Summary Judgment based of Proximate Cause
and Adequacy of Warnings
This motion for summary judgment was originally filed by Dr. Winfield's
co-defendant, Pharmacia & Upjohn, Inc. Dr. Winfield joined in this motion
on January 11, 2000. Similar to the defendant's motion regarding punitive
damages, the Court is perplexed as to the defendant's reasoning in the
instant motion. The motion submitted by Pharmacia & Upjohn argues that
Provera's labeling was not inadequate, and
even if it was, the inadequacy did not cause the plaintiff's damages.
Defendant Winfield is being sued for prescribing Provera to a pregnant
woman and failing to warn her of the drug's risks. Given these claims,
Pharmacia and Upjohn's motion fails to assist defendant Winfield in any
way. Accordingly, the defendant's motion is denied.
In the case of Dyson v. Winfield, Civil Action No. 97-1665, it is
ORDERED that the defendant's motion to exclude [35-1] be DENIED;
further, it is
ORDERED that the defendant's motion for summary judgment [60-1] be
DENIED; further, it is
ORDERED that the defendant's motion to dismiss the plaintiff's claim
for emotional distress and extraordinary child rearing expenses [57-1] be
GRANTED; further, it is
ORDERED that the defendant's motion tp dismiss the plaintiff's punitive
damage claim [61-1] be DENIED; further, it is
ORDERED that the defendant's motion for summary judgment based on
proximate cause and adequacy of warnings [59-1] be DENIED; further, the
ORDERED to correct the docket by deleting the defendant's joinder with
Pharmacia & Upjohn in Pharmacia & Upjohn's motion for summary judgment on
the fraud and breach of warranty counts [58-1]; further, the clerk is
ORDERED to correct the docket by adding the defendant's joinder with
Pharmacia & Upjohn in Pharmacia & Upjohn's motion to dismiss the
plaintiff's claim for punitive damages [61-1]; further, the clerk is
ORDERED to correct the docket by adding the defendant's joinder with
Pharmacia & Upjohn in Pharmacia & Upjohn's motion to exclude the
plaintiff's expert testimony [35-1].