Lust ex rel. Lust v. Merrell Dow Pharmaceuticals, Inc.

Peter A. Lust brought a personal injury action against Merrell Dow Pharmaceuticals, Inc. alleging that his birth defect, diagnosed as hemifacial microsomia, was caused by his mother’s ingestion of Clomid, a fertility drug manufactured by Merrell Dow. California law dictates that causation is a necessary element of a personal injury action. The district court granted summary judgment in favor of Merrell Dow on the grounds that Lust’s only causation evidence — the expert opinion of Dr. Alan Done — did not reflect scientific knowledge and was inadmissible under F.R.E. 702. The district court had diversity jurisdiction, 28 U.S.C. § 1332 , and we have jurisdiction over the appeal. 28 U.S.C. § 1291 . We affirm.

*596 I. Background

The district court held an in limine hearing pursuant to F.R.E. 104(a) to determine whether Done’s opinion was admissible under F.R.E. 702. Done explained the reasoning underlying his conclusion that Clomid is a human teratogen (i.e., an agent that causes birth defects) that causes hemifacial microso-mia:

Done found that human epidemiological studies reported a positive association between ingestion of Clomid and a wide variety of birth defects, that animal…