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884 F.2d 166

Docket No. 88-2311.

Brock v. Merrell Dow Pharmaceuticals, Inc.

Fifth Circuit Court of Appeals

Decided Aug. 15, 1989.

Fifth Circuit Court of Appeals · decided 1989-08-15

2 counsel of record

Key passage — most relied on by later courts

“did not wish [its decision] to stand as a bar to future Bendectin cases in the event that new and statistically significant studies emerge that would give the jury a firmer basis upon which to determine the issue of causation.”

quoted by 5 later decisions, including 731 F. Supp. 224 - Thomas v. Hoffman-La Roche, Inc., 827 F. Supp. 1014 - In Re Joint Eastern & Southern Dist. Asbestos Lit.

“statistically significant epidemiological proof that Bendectin causes limb reduction defects.”

quoted by 5 later decisions, including Maritime Overseas Corp. v. Ellis, 736 F. Supp. 737 - Turpin v. Merrell Dow Pharmaceuticals Inc.

Relies on Brock v. Merrell Dow Pharmaceuticals, Inc.

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1989-08-15

How this case has been cited

Cited by 81 later decisions (1 by the Supreme Court) — most recently May 2025 · most notably Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), Merrell Dow Pharmaceuticals, Inc. v. Havner (1997)

25 federal appellate · 6 district · 14 state decisions

64019891990200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1O.J. Weber, Mehaffey, Weber, Keigh & Gonsoulin, Beaumont, Tex., Robert M. *167Dato, Dickson, Carlson & Campillo, Santa Monica, Cal., Ramey, Flock, Hutchins, Jef-fus, McClendon & Crawford, P.C., for defendants-appellants.

¶2Thomas H. Bleakley, Detroit, Mich., W. James Kronzer, Richard Warren Mithoff, Houston, Tex., for plaintiffs-appellees.

¶3ON PETITION FOR REHEARING

¶4Before GARZA, JOLLY, and JONES, Circuit Judges.

¶5PER CURIAM:

¶6Appellees have filed a petition for rehearing en banc with regard to our prior disposition of this case, Brock v. Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, 308 (5th Cir.1989). Treating that petition as a petition for panel rehearing, we hereby modify our prior panel opinion.

¶7At 313, we stated that “[w]e find, in this case, the lack of conclusive epidemiological proof to be fatal to the Brocks’ case.” We hereby change that sentence to read “[w]e find, in this case, the Brocks’ failure to present statistically significant epidemiological proof that Bendectin causes limb reduction defects to be fatal to their case.”

¶8We also change the last two sentences of the second to last paragraph on 315, which read:

Hopefully, our decision will have the effect of encouraging district judges faced with medical and epidemiologic proof in subsequent toxic tort cases to be especially vigilant in scrutinizing the basis, reasoning, and conclusiveness of studies presented by both sides. However, we do not wish this case to stand as a bar to future Bendectin cases in the event that new and conclusive studies emerge which would give a jury a firmer basis on which to determine the issue of causation.

¶9These sentences should read as follows:

Hopefully, our decision will have the effect of encouraging district judges faced with medical and epidemiologic proof in subsequent toxic tort cases to be especially vigilant in scrutinizing the basis, reasoning, and statistical significance of studies presented by both sides. However, we do not wish this case to stand as a bar to future Bendectin cases in the event that new and statistically significant studies emerge which would give a jury a firmer basis on which to determine the issue of causation.

¶10With the exception of the above changes, the panel adheres to its prior opinion in this case.

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