“[C]ourts have generally held that part of the criteria for the grant of a motion on the basis of newly-discovered evidence is that the evidence is material and eontrol-ling and clearly would have produced a different result if presented before the original judgment[.]”
How later courts described this case
- “[C]ourts have generally held that part of the criteria for the grant of a motion on the basis of newly-discovered evidence is that the evidence is material and eontrol-ling and clearly would have produced a different result if presented before the original judgment[.]”
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring:
I join without reservation Judge Stead-man’s lucid opinion for the court. I write separately, however, to address some of the practical implications of the positions taken by Merrell Dow in this appeal.
I.
In a case like this one in particular, I think it appropriate to stress that the decisions which we are asked to make are not solutions to algebraic problems. Rather, they affect real people. Mary Virginia Oxendine was bom on January 25, 1971 with a shortened right forearm and with only three fingers on her right hand. In her complaint, filed on February 1,1982, she alleged that her mother used Bendectin during her pregnancy, and that Bendectin caused Ms. Oxendine’s birth defects. Following a protracted trial in May 1983, the jury credited her allegations and awarded her substantial damages. In Oxen-dine I and again in Oxendine II, 1 this court sustained the judgment.
Ms. Oxendine will soon be twenty-four years old. This suit was filed almost thirteen years ago. More than eleven years have elapsed since the trial. Now, four appeals later, Ms. Oxendine has yet to receive a penny from Merrell Dow. Although our decision in this case probably brings us somewhat closer to the day on which Ms. Oxen-dine will actually receive some compensation, we cannot say with assurance, even today, that the end of the long journey is imminent.
Justice delayed is justice denied. Ms. Ox-endine’s childhood is over. Timely receipt of the money might perhaps have made it easier for her to deal with the consequences of her handicap during her teen-age years. Unfortunately, that opportunity has been lost forever.
In resolving the specific issues presented to us in this appeal, we should keep in mind the “big picture,” and must not allow ourselves to miss the forest for the trees. Any rational observer from another land or planet who looked at this case without our somewhat parochial lawyers’ perceptions would, I think, conclude that, in this instance, our adversarial system has not been an unqualified success. I am not suggesting that any one participant in the process is to blame. I do not attribute past delays particularly to Merrell Dow. Two of the prior appeals were by counsel for Ms. Oxendine. Moreover, this is the fourth time that the case has reached this court, and we have yet to affirm a trial court judgment.
It is better to light a candle than to curse the darkness. Unfortunately, I have no ready recipe to speed up the process, except to suggest that we may have something to learn from the civil law system which is widely practiced outside the English-speaking world, and which disposes of these disputes more promptly. 2 But whether or not we can find ways to alleviate the problem of protracted litigation for the generality of cases, the inordinate delay in this instance must surely be taken into consideration in *834 the decisions which are made from this point forward.
The right to seek redress in the courts is a fundamental one. Yet that right can be impaired or even extinguished as readily and as surely by litigation which never seems to end as by closing the courthouse door. How many plaintiffs have the resources to fight this kind of ease for thirteen years or more? Assuming that Ms. Oxendine’s attorneys have been retained on a contingency basis, how many lawyers could afford to litigate for such a period without, as yet, receiving any fee? Many if not most similarly injured parties would have been compelled long ago to abandon the effort entirely, or to settle for a recovery far beneath the reasonable value of the case. The delays to date, in other words, have already done intolerable damage, and it is now surely the obligation of this court and of the trial court to resolve the problem rather than compounding it. This ease must therefore be brought to closure on an urgent basis, as soon as this can be fairly and equitably accomplished.
II.
In light of the foregoing considerations, I am frankly troubled by the notion that Mer-rell Dow can be (and indeed has been) permitted to raise the “federal preemption” issue at so late a stage of the litigation. The trial judge having elected to address the merits, I suppose that we should do so too, and I am prepared to state, more bluntly than Judge Steadman has done, that Merrell Dow’s contentions in this regard have no merit whatsoever. 3 Even if its preemption argument were more persuasive, Merrell Dow should not be heard to raise it for the first time now.
We have repeatedly stated that “litigants should not be permitted to keep some of their objections in their hip pockets and to disclose them only to the appellate tribunal.” Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied, — U.S. -, 113 S.Ct. 509 , 121 L.Ed.2d 444 (1992). Here, Merrell Dow kept the contention in its hip pocket for some ten years (and four appeals) after the jury trial which resulted in the judgment in favor of Ms. Oxendine. Assuming, solely for the sake of argument, that preemption is a valid defense, Merrell Dow should have pressed it from the outset. The complaint would then have been dismissed at the pleading stage. A trial and at least three of the four appeals could have been avoided.
Ms. Oxendine argues in her brief that “the obvious purpose of raising this matter now is to obtain further delay.” I cannot read minds, and I would therefore substitute the word “effect” for the word “purpose.” Either way, the contention comes far too late.
III.
I am also troubled by Merrell Dow’s apparent position that, because so much time has passed, it is now entitled to litigate all over again, in the light of developments since the trial, the very question which was decided by the jury almost a dozen years ago. 4 I agree with Judge Steadman’s disposition of the issue of newly discovered evidence, but add a few thoughts of my own.
At least in a case in which the appellate process remains incomplete, there has to be some leeway for correcting an error where new scientific developments demonstrate that a manifest injustice has been done. To use an imperfect analogy, few would argue that a criminal defendant who has been convicted of rape or murder must go to the electric chair or stay in prison even if DNA evidence shows that he did not commit the crime. The stakes here are not quite as high, but fair-minded people would agree that Merrell Dow ought not to be compelled to pay Ms. Oxen-dine many hundreds of thousands of dollars in damages if it has become obvious that Bendectin was not the cause of her deformi *835 ties. In my opinion, Judge Steadman has drawn just the right balance between the two competing considerations, namely, the need for closure on the one hand and the opportunity to correct an injustice with newly-discovered evidence on the other.
But in exercising its discretion on remand, the trial court may and should consider that this is not 1982 or 1984 or even 1990. Given where we are today, considerations of finality have become so compelling that in my view, nothing short of an extraordinarily persuasive proffer by Merrell Dow would warrant hearing new testimony, revisiting the jury’s verdict, and further delaying Ms. Oxendine’s recovery. If the trial judge declines to reopen the record on remand, I have seen nothing to suggest that this would be an abuse of discretion on his part.
This raises the question whether our remand in the case is a futile act — form over substance, prolonging the delay. The notion that we should affirm and get the case over with has some obvious appeal but, largely for the reasons stated by Judge Steadman, I do not think we can properly do so. The trial judge wrote, in pertinent part, that “the outcomes of both Oxendine I and Oxendine II were acknowledgments that the jury had correctly 5 determined the outcome of this litigation. It would now be inappropriate to contradict such mandates.... ” As the judge recognized, however, Oxendine I and Oxen-dine II could not and did not decide anything about Merrell Dow’s claim of newly discovered evidence. They did not dispose of the issue now before us.
IV.
Although we are remanding the case to the trial court, it is my understanding that our difference of opinion with the trial judge is comparatively slight, and that we have directed only a very limited inquiry on remand and have recognized the trial judge’s broad discretion. See maj. op. at 882 n. 16. It is my view and, I think, the court’s, that in exercising his discretion, the judge may properly include in his calculus the past delays in this case and the consequences for Ms. Oxendine 6 if this protracted litigation does not finally come to an end.
. The citations to these earlier Oxendine decisions appear in Judge Steadman’s opinion for the court.
.
Whether it is the innate excellence of our legal system or the innate cocksureness of the people that live under it, so that even as Mr. Podsnap talked to the Frenchman as if he were a deaf child, we assume that our common-law notions are part of the legal order of nature and are unable to understand that any reasonable being can harbor legal conceptions that run counter to them.
Roscoe Pound, The Spirit of the Common Law 2 (1921), quoted in Thompson v. United States, 546 A.2d 414 , 428-29 n. 29 (D.C.1988).
. Merrell Dow earnestly argues that the jury was wrong and that no impartial trier of fact could hold Bendectin responsible for Ms. Oxendine’s injuries. I note that the experienced trial judge agreed with Merrell Dow. We simply cannot use Oxendine TV, however, as a vehicle for second-guessing Oxendine I.
. “Permissibly” would be á more accurate term than "correctly."
. And, potentially, for other similarly situated litigants.