Reply Brief — Daubert v. Merrell Dow Pharmaceuticals, Inc.

No. 95-198

” IN THE .

Supreme Court of the Anited States

October Term, 1995

WILLIAM DAUBERT AND JOYCE DAUBERT,

INDIVIDUALLY AND AS GUARDIANS AD LITEM

FOR JASON DAUBERT, AND ANITA DE YOUNG,

INDIVIDUALLY AND AS GUARDIAN AD LITEM

FOR ERIC SCHULLER,

Petitioners,

Vv.

MERRELL DOW PHARMACEUTICALS, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

KENNETH J. CHESEBRO ARTHUR R. MILLER

Counsel of Record 1545 Massachusetts Avenue

1600 Massachusetts Avenue Cambridge, MA 02138

Cambridge, MA 02138 (617) 495-4111

(617) 661-4423

Counsel for Petitioners

[Additional Counsel Listed on Inside Cover]

August 28, 1995

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

Mary F. GILLICK

LUCE, FORWARD

HAMILTON & SCRIPPS

600 West Broadway

San Diego, CA 92101

MICHAEL J. HARTLEY

11 Preston Road

West Roxbury, MA 02132

BARRY J. NACE

PAULSON, NACE & NORWIND

1814 N Street, N.W.

Washington, D.C. 20036

JONATHAN S. MASSEY

3920 Northampton Street, N.W.

Washington, D.C. 20015

TABLE OF AUTHORITIES

Cases Pages

Ambrosini v. Labarraque, 966 F.2d 1464 (D.C. Cir. 1992) 5

Black v. J. I. Case Co., 22 F.3d 568 (Sth Cir.),

cart. Ganted, 115 S. Ct. STO CAFS) ww ce cccccvcces 8

Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307

(Sth Cir.), modified, 884 F.2d 166 (Sth Cir. 1989),

cert. denied, 494 U.S. 1046 (1990) .............. 5

Brown v. Allen, 344 U.S. 443 (1953) ...........66. l

Christophersen v. Allied-Signal Corp..,

i id as ob eo he. oh 9b. 65m. 008 l

Clark v. Coats & Clark, Inc.,

og A Se | ee ee ee ee 2

Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068 (6th Cir.

1993), cert. denied, 114 S. Ct. 1299 (1994) ...... 1,2

Glaros v. H.H. Robertson Co., 797 F.2d 1564 (Fed. Cir.

1986), cert. dismissed, 479 U.S. 1072 (1987) ....... 8

Jarrett v. Epperly, 896 F.2d 1013 (6th Cir. 1990) ...... 8

Johnson Int'l Co. v. Jackson Nat’l Life Ins. Co..,

ee ee ee 8

Kauffman v. Puerto Rico Telephone Co.,

ee RB Fs he eee 2

Lama v. Borras, 16 F.3d 473 (ist Cir. 1994) ......... 8

Lebron v. National R.R. Passenger Corp.,

Ree aie I ins ar 618 4.0.0.0 0 4.0.9.008 ¢ € O0e0 6

Locricchio v. Legal Services Corp. ,

Se ee er BONED 000 0 00.6 0 ties be t's a 7

Lum v. City of Honolulu, 963 F.2d 1167 (9th Cir.),

Cart. Gates, 413 Ss Ger Ge Ie 6 6 6 6 We Se hw cer 8

Cases Pages

Lynch v. Merrell-Nat’l Lab., 830 F.2d 1190 (ist Cir. 1987) 5

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989) . 6

Merrell Dow Pharmaceuticals, Inc. v. Havner, No.

13-92-540-CV (Tex.App.Ct., 13th Dist., Aug. 10, 1995) 5

Missouri v. Jenkins, 115 S. Ct. 2038 (1995) .......... l

Richardson v. Richardson-Merrell, Inc., 857 F.2d 823

(D.C. Cir. 1988), cert. denied, 493 U.S. 882 (1989) ... 5

Russ v. International Paper Co.,

SD Fee ee ee eas SE cb eho week eae es 2

Schertz v. Waupaca Cty., 875 F.2d 578 (7th Cir. 1989) .. 4

Switzerland Cheese Ass’n v. E. Horne’s Market, Inc..,

ee i AP otc oh Cees oR Bk ee 7

United States v. Carver, 260 U.S. 482 (1923) ......... |

Watson v. Amedco Steel, Inc.,

ae eek ee ee ee Fh koe oo be ae ea ee 8

Whalen v. Unit Rig, Inc., 974 F.2d 1248 (10th Cir.

1992), cert. denied, 113 S. Ct. 1417 (1993) ........ 8

Whetstine v. Gates Rubber Co..,

eg & F Vy, th A. | | oe 2

Miscellaneous

Federal Rule of Civil Procedure 56(c) .......... passim

Richard L. Marcus, Martin H. Redish & Edward F.

Sherman, CIVIL PROCEDURE: A MODERN

pe te Ee FO ee er ree ee ee 2-3

10A Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, FEDERAL PRACTICE AND

PROC Gael ae Cee a's bh a 0 ove eee eae 4

REPLY TO BRIEF IN OPPOSITION

Merrell advances six meritless objections to a grant of

certiorari, conveniently ignoring most of the authorities cited in

the petition. Review should be granted to resolve the confusion

and conflict over the proper construction of Rule 56(c), so that

this important rule of civil procedure will be applied consistently

throughout the nation.

1. Merrell argues that review should be denied because

"[t]his Court denied certiorari last year on the identical issue" in

another case, Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068

(6th Cir. 1993), cert. denied, 114 S. Ct. 1299 (1994). Opp. at

9. Ironically, Merrell made the same argument in unsuccessfully

urging this Court to deny our last petition, concerning the circuit

conflict over the Frye rule (on which this Court had recently

denied review in Christophersen v. Allied-Signal Corp. , 503 U.S.

912 (1992)). See Respondent’s Brief in Opposition, No. 92-102,

at 1 & n.1. Again, Merrell "ignores that ‘[t}he denial of a writ

of certiorari imports no expression upon the merits of the case,

as the bar has been told many times,’ United States v. Carver,

260 U.S. 482, 490 (1923)."! Moreover, the analysis of the

circuit conflict and of the need for review contained in the

petition and in this reply brief is much more comprehensive than

the analysis in the Elkins petition, and we have offered significant

additional authorities on the circuit conflict that were published

after review was denied in Elkins.

2. Merrell simply asserts, without offering any citations, that

there are no “meaningful, outcome-determinative differences"

among the circuits over what initial burden, if any, Rule 56(c)

imposes on a moving party that seeks summary judgment on the

' Reply to Brief in Opposition, No. 92-102, at 1 n.1. See also Missouri

v. Jenkins, 115 S. Ct. 2038, 2047 (1995) (reiterating Carver rule); Brown v.

Allen, 344 U.S. 443, 491-92 (1953) ("We have repeatedly indicated that a

denial of certiorari means only that, for one reason or another which is seldom

disclosed, and not infrequently for conflicting reasons which may have nothing

to do with the merits and certainly may have nothing to do with any view of

the merits taken by a majority of the Court, there were not four members of

the Court who thought the case should be heard.").

| aati

2

ground that the non-moving party cannot prove its case. Opp. at

9. Merrell largely ignores our extensive citation of authorities

demonstrating the conflict. Pet. at 7-12 & n.15. In particular,

Merrell ignores explicit statements by the Fifth and Eleventh

Circuits noting that Celotex is commonly misunderstood and

misapplied by most courts. See Pet. at 10.2 Merrell also

ignores the analysis by numerous scholars of the confusion over

Rule 56(c). Pet. at 7 & n.15. Finally, Merrell ignores our

discussion of the source of the confusion: the unclear language

in the Celotex plurality opinion, first noted by three of the

Celotex justices. See Pet. at 9, 12.

Obviously, the confusion over Rule 56(c) perceived by all

these justices, courts and commentators is not something that

petitioners have invented. The most recent example of the

conflict among the circuits over Rule 56(c) can be found in the

second edition of a leading casebook on civil procedure,

published after the petition was filed in this case. The casebook

describes the conflict over Rule 56(c) in substantially the same

manner as does the petition, citing some of the same cases

(including the Elkins case that Merrell so casually dismisses):

The majority of post-Celotex lower courts have read that

decision not to impose a significant triggering burden on a

movant who lacks the burden of production at trial. Indeed,

many lower court decisions following Celotex have either

reduced the burden dramatically or ignored it completely.

See, e.g., Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068

(6th Cir. 1993); Whetstine v. Gates Rubber Co., 895 F.2d

388 (7th Cir. 1990); Kauffman v. Puerto Rico Telephone

Co., 841 F.2d 1169 (ist Cir. 1988). But see Clark v. Coats

& Clark, Inc., 929 F.2d 604 (11th Cir. 1991). See also

Russ v. International Paper Co., 943 F.2d 589, 591 (Sth

Cir. 1991).

? Given these explicit Fifth and Eleventh Circuit criticisms of the majority

approach to Rule 56(c), it is simply incomprehensible for Merrell to claim that

petitioners “are unable to quote any court of appeals decision that states that

it has a standard in meaningful conflict with the standards of another circuit.”

Opp. at 9 n.7.

3

Richard L. Marcus, Martin H. Redish & Edward F. Sherman,

CIVIL PROCEDURE: A MODERN APPROACH 421 (2d ed. 1995)

(quotations from, and analysis of, Clark and Russ omitted). The

casebook also cites two of the same articles cited in the petition

(Pet. at 14 n.20) that criticize the inefficient and unfair nature of

the majority rule. Jd. at 423.’ Clearly, the Rule 56(c) issue that

we have presented is a real issue, and one worthy of review.

3. Alternatively, Merrell argues that, even if we are correct

that a conflict over Rule 56(c) exists, that conflict "is patently

illusory in this case." Opp. at 10. In answer to our argument

that "[i]f the approach followed by the Fifth, Seventh, Tenth and

Eleventh Circuits had been applied, as a matter of law Merrell’s

summary judgment motion would have been denied,” Pet. at 15,

Merrell insists that this simply is not so. Merrell asserts that the

petition ignores “all but one of the exhibits accompanying

Merrell Dow’s motion." Opp. at 10. Although the petition does

address the other exhibits, see Pet. at 6 n.12, they merit little

attention (notably, Merrell did not cite them in any of the three

briefs it filed below on remand). These exhibits are simply not

among the material listed in Rule 56(c) that could be a proper

basis for Merrell’s summary judgment motion under the law of

the Fifth, Seventh, Tenth and Eleventh Circuits.‘ Because

Merrell produced no Rule 56(c) materials in support of its

motion, its argument that it nevertheless met the standard for

Rule 56(c) set out by these four circuits cannot prevail. As we

have demonstrated through specific citations, see Pet. at 10-11

> Obviously, not every casebook and treatise on federal civil procedure

discusses the conflict among the circuits over Rule 56(c). For example,

Merrell cites two civil procedure treatises that do not discuss the conflict, Opp.

at 9-10 n.7, whose volumes on Rule 56(c) were published before Celotex (the

pocket parts cite post-Celotex law review articles concerning the debate over

the proper construction of Rule 56(c)).

* See Opp. at 3-4 n.3 (listing all exhibits to Merrell’s motion, confirming

the description in the petition that, except for Dr. Lamm’s affidavit, they

“were not Rule 56(c) materials showing that Bendectin does not cause birth

defects; indeed, they were almost exclusively copies of decisions by other

courts in other Bendectin cases,” Pet. at 6 n.12).

4

and nn. 17 & 18, each of these circuits holds that a summary

judgment motion must be supported by reference to specific

portions of the record material listed in Rule 56(c).

4. Given that its motion was unsupported by any of the

material listed in Rule 56(c), Merrell advances two last-ditch

arguments in defense of its suggestion that its Rule 56(c) motion

was proper under the law of the Fifth, Seventh, Tenth and

Eleventh Circuits, so that the conflict in the circuits is supposedly

not presented by this case.

Merrell argues first that its motion rested not simply on a

"naked assertion” that petitioners could not prove their case, but

rather on a summary judgment brief, written by its counsel,

"explaining in detail, both in its own discussion and through the

attached judicial opinions, the substance of the causation

testimony of petitioners’ expected experts and why it was

scientifically inadequate." Opp. at 12-13. But there is no basis

for believing that the Fifth, Seventh, Tenth or Eleventh Circuits

would hold that a movant can meet its Rule 56(c) burden based

on assertions in the briefs of counsel. See Pet. at 9-11; see also

10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2723, at 64

(1983) ("Wright, Miller & Kane") ("summary judgment cannot

be granted on the basis of statements of fact in the moving

party’s brief even though they are uncontroverted by an

opponent"). Nor is there any support for the idea that these

circuits would permit a party to meet its Rule 56(c) burden

simply by attaching to its motion the decisions of other courts in

other cases considering challenges to other (supposedly similar)

evidence, without including any record excerpts from those cases.°

5 See, e.g., Wright, Miller & Kane, supra, § 2723, at 67-68 (“When the

judge takes judicial notice of the record of another action on a Rule 56 motion,

he must inform the parties of the precise portion of the record he is noticing

and give them an opportunity to react to his action"); Schertz v. Waupaca Cty.,

875 F.2d 578, 581 (7th Cir. 1989) (cited in Pet. at 11) (noting that in moving

for summary judgment based on prior case, defendants submitted transcripts

from the other case, and thereby “met their initial burden” under Rule 56(c)).

The pitfalls of any construction of Rule 56(c) that would permit a movant

to meet its burden simply by referring to testimony reviewed in other court

———

5

Merrell’s second, even more desperate argument is that under

the law of these four circuits it could be deemed to have met its

Rule 56(c) burden after it filed its motion, because “the

evidentiary material before the district court increased

substantially" when petitioners filed their Rule 56(e) materials,

and “(t]he record expanded further" when Merrell submitted

materials attacking petitioners’ Rule 56(e) filing, so that after all

these materials were filed, there was supposedly “affirmative

admissible evidence supporting Merrell Dow’s motion on

causation.” Opp. at 13. To describe this argument is to refute

it. As made clear by the plain language of Rule 56, and as

settled by this Court long ago, if Merrell’s initial Rule 56(c)

showing was inadequate, petitioners had no obligation even to

respond to the motion. Pet. at 12-13. There is no basis in the

law of the Fifth, Seventh, Tenth and Eleventh Circuits for

decisions, without attaching that testimony to the motion, are amply

demonstrated by the three decisions that were discussed in Merrell’s 1989

summary judgment brief and which Merrell cites to this Court as having

involved a record “no different” from the one in this case. Opp. at 2-3 n.2,

6. As petitioners established below without dispute, Merrell’s victory in its

"lodestar case — Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C.

Cir. 1988), cert. denied, 493 U.S. 882 (1989) (relied on by all other cases

cited by Merrell) —" depended on “peculiar facts" and "rested on a statement

by the plaintiffs’ key witness ‘that the data underlying his opinion was not of

a type reasonably relied on by experts in the field’; the D.C. Circuit

emphasized that any broader reading ‘reflects a misunderstanding of

Richardson,’ where ‘the expert himself conceded’ lack of reasonable reliance.

Ambrosini v. Labarraque, 966 F.2d 1464, 1468-69 (D.C. Cir. 1992)."

Supplemental Brief on Remand of Plaintiffs-Appellants, filed Sept. 7, 1993, at

12-13 n.9. Merrell’s second case, Lynch v. Merrell-Nat’l Lab. , 830 F.2d 1190

(1st Cir. 1987), provides even less of a point of comparison; Merrell won

summary judgment in Lynch on admissibility grounds by default, after the

plaintiff failed to submit any Rule 56(e) materials in response to Merrell’s

motion. Merrell’s third and final case is completely inapposite because it

turned not on the admissibility of plaintiffs’ evidence under the Federal Rules

of Evidence, but on its sufficiency under substantive Texas law. In Brock v.

Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307 (Sth Cir.), modified, 884

F.2d 166 (Sth Cir. 1989), cert. denied, 494 U.S. 1046 (1990), the Fifth Circuit

found the available evidence on Bendectin insufficient to establish causation

under Texas law, a finding that has since been rejected by the Texas courts.

Merrell Dow Pharmaceuticals, Inc. v. Havner, Nu. 13-92-540-CV (Tex. App.

Ct., 13th Dist., Aug. 10, 1995) (en banc) (upholding finding that Bendectin

caused child’s birth defects).

6

Merrell’s “expanding record” theory of Rule 56(c), under which

a non-movant never receives notice of the grounds on which

summary judgment is being sought, and of what Rule 56(c)

material must be countered, but is instead confronted with a

moving target. E.g., Malhotra v. Cotter & Co., 885 F.2d 1305,

1310 (7th Cir. 1989) ("When a party moves for summary

judgment on ground A, his opponent is not required to respond

to ground B — a ground that movant might have presented but

did not.").

5. Merrell argues that "petitioners waived their present

claim" through a "failure to raise [the Rule 56(c)] point in a

timely manner." Opp. at 14 n.10. This argument is so

groundless that Merrell did not even raise it below. As

previously summarized (Pet. at 3 & n. 4), but ignored by

Merrell, upon remand of this case Merrell itself asked the Ninth

Circuit to apply the new construction of Rule 702 announced by

this Court. Merrell specifically noted that this Court’s decision

announced “new standards,” requiring the application of

"scientific standards for validation" of an expert’s methodology .°

Obviously, the Ninth Circuit was required to apply these new

standards in evaluating the evidence proffered by all parties in

this case. Petitioners promptly requested that the Ninth Circuit

apply these new standards to Merrell’s Rule 56(c) submission,

arguing that the only Rule 56(c) material submitted by Merrell

(Dr. Lamm’s affidavit) did not meet the new standards, so that

Merrell had not met its threshold burden. See Pet. at 4. In any

event, because petitioners’ argument concerning the proper

construction of Rule 56(c) was passed on below, the issue is

properly before this Court. See, e.g., Lebron v. National R.R.

Passenger Corp., 115 S. Ct. 961, 965 (1995).

6. Finally, Merrell argues that, even though the Ninth

Circuit assumed that Dr. Lamm’s affidavit is inadmissible (as

petitioners demonstrated in their briefs and as Merrell did not

* Motion of Appellee Merrell Dow for Leave to File Supplemental Brief

on Remand, filed July 22, 1993, at 2, 4.

7

contest below, see Pet. at 4-6), review should be denied because

Dr. Lamm’s affidavit is admissible after all. Opp. at 14 n.10.

But the affidavits submitted by petitioners establish that Dr.

Lamm’s methodology is scientifically invalid under this Court’s

Daubert I analysis, see Pet. at 4 n.6, and there is no evidence in

the record to the contrary. (Dr. Lamm does not make even a

bare assertion that his chosen methodology, that of reaching a

final conclusion about the safety of Bendectin while ignoring

three out of four kinds of pertinent scientific data, is scientifically

valid).

** *

A final consideration weighing heavily in favor of setting

aside Merrell’s factual quibbles, and granting certiorari to resolve

the conflict over the proper construction of Rule 56(c), arises

from the peculiar tendency of this issue to evade review by this

Court, despite its importance and despite the distinct conflict

among the circuits.

Defendants in the Fifth, Seventh, Tenth and Eleventh Circuits

will never be able to obtain review in this Court to protest that

those circuits are reading Rule 56(c) too stringently, and are

improperly requiring summary judgment movants to meticulously

set out Rule 56(c) materials demonstrating that the non-movant

cannot prevail at trial. Where a summary judgment motion is

denied as inadequate under Rule 56(c), appellate review is barred

because “the denial of a motion for a summary judgment. . . is

strictly a pretrial order that decides only one thing — that the

case should go to trial.” Switzerland Cheese Ass'n v. E. Horne’s

Market, Inc., 385 U.S. 23, 25 (1966). For that reason, "the

deniai of a motion for summary judgment is not reviewable on

an appeal from a final judgment entered after a full trial on the

merits." Locricchio v. Legal Services Corp., 833 F.2d 1352,

1359 (9th Cir. 1987).’

’ This appears to be the uniform rule in the federal courts of appeals;

indeed, in his Locricchio opinion Judge Sneed noted that "[a]fter considerable

research, we have found no case in which a jury verdict was overturned

In the other circuits, which impose little or no burden on

summary judgment movants, plaintiffs will almost never be

procedurally positioned to raise in this Court their objection to

the majority construction of Rule 56(c). The central vice of the

majority rule, from both an efficiency and a fairness perspective,

is that it puts plaintiffs to the burden of collating and setting out

their entire case, in written form, based on a relatively cursory,

unfocused motion by the defendant, thereby allowing defendants

to use summary judgment practice as a tool for harassment. See

Pet. at 13-14 & n.20. No matter how incorrect the construction

of Rule 56(c) that permits such poorly supported motions to be

considered, and that imposes this burden on plaintiffs, once

plaintiffs have borne their burden, and have managed to defeat

a poorly supported motion, they will have nothing to appeal.

Only in rare cases like this one, in which the poorly supported

motion is nonetheless granted, and in which the stakes are high

enough to warrant a vigorous effort to obtain review in this

Court, will this Court ever have an opportunity to review the

Rule 56(c) issue.

The unavailability, in almost all cases, of appellate review of

the conflict over Rule 56(c) highlights the need for this Court to

grant certiorari in the instant case. If Merrell is right about the

proper construction of Rule 56(c), then defendants in four

circuits are currently being put to an unauthorized, inefficient and

unfair burden in moving for summary judgment, and are having

adequately supported motions denied in a manner that is

completely unreviewable. If petitioners are right about the

proper construction of Rule 56(c), then plaintiffs in most circuits

are currently being put to an unauthorized, inefficient and unfair

because summary judgment had been improperly denied.” 833 F.2d at 1359.

See also Watson v. Amedco Steel, Inc., 29 F.3d 274, 276-77 (7th Cir. 1994);

Black v. J. I. Case Co., 22 F.3d 568, 571-72 (Sth Cir.), cert. denied, 115 S.

Ct. 579 (1994); Johnson Int’l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431,

434 (8th Cir. 1994); Lama v. Borras, 16 F.3d 473, 476 n.5 (ist Cir. 1994);

Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250-51 (10th Cir. 1992), cert.

denied, 113 S. Ct. 1417 (1993); Lum v. City of Honolulu, 963 F.2d 1167,

1170 & n.1 (9th Cir.), cert. denied, 113 S. Ct. 659 (1992); Jarrett v. Epperly,

896 F.2d 1013, 1016 (6th Cir. 1990); Glaros v. H.H. Robertson Co., 797

F.2d 1564, 1573 (Fed. Cir. 1986), cert. dismissed, 479 U.S. 1072 (1987).

9

burden to respond to inadequately supported summary judgment

motions in a manner that is almost entirely unreviewable.

Granting review in this case will guarantee that Rule 56(c) will

be applied consistently to all litigants throughout the nation, in a

clear manner that will facilitate efficient trial practice, regardless

of which construction this Court wishes to place on Rule 56(c).

CONCLUSION

For all these reasons, the petition should be granted.

Respectfully submitted,

KENNETH J. CHESEBRO ARTHUR R. MILLER

Counsel of Record 1545 Massachusetts Avenue

1600 Massachusetts Avenue Cambridge, MA 02138

Cambridge, MA 02138 (617) 495-4111

(617) 661-4423

MARY F. GILLICK BARRY J. NACE

LUCE, FORWARD, PAULSON, NACE & NORWIND

HAMILTON & SCRIPPS 1814 N Street, N.W.

600 West Broadway Washington, D.C. 20036

San Diego, CA 92101

MICHAEL J. HARTLEY JONATHAN S. MASSEY

11 Preston Road 3920 Northampton Street, N.W.

West Roxbury, MA 02132 Washington, D.C. 20015

Counsel for Petitioners

August 28, 1995