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A Day Late and a Dollar Short on Bendectin:

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Cross-posted from the Volokh Conspiracy.

There was once a safe and effective prescription remedy for morning sickness called Bendectin (Debendox in other countries). After a great deal of "phantom risk" hysteria, Bendectin was driven off the American market by thousands of lawsuits, unsupported by valid scientific evidence, claiming it caused birth defects. The litigation continued well after a consensus formed in the scientific community that Bendectin does not cause birth defects, and the evidence has since continued to accumulate that Bendectin is perfectly safe.

With Bendectin off the market, the rate of hospitalizations for morning sickness has doubled, and hundreds of thousands of pregnant women annually face "unwarranted and preventable suffering."* The withdrawal of Bendectin from the market, was, as one article puts it, "an American tragedy"**--Bendectin was never taken off the market in other countries or, as in Canada, quickly returned to the market after a short hiatus; you can easily get it in generic form from Canada or elsewhere (you can also make a home version from nonprescription ingredients, but physicians are understandably reluctant, given the litigation history of the drug, to recommend this). Meanwhile, Bendectin and other litigation fiascoes related to women's reproductive health has severely discouraged pharamceutical companies from researching new morning sickness drugs, contraceptives, etc.

No plaintiffs' attorney is more identified with the Bendectin litigation than former ATLA president Barry Nace [by the way, consider what it says about ATLA's members that they elected him president long after he helped drive Bendectin off the market]. He had many Bendectin cases, and was the one who took Daubert v. Merrell Dow Pharmaceuticals, which revolutionzed the rules for the admissibility of expert testimony, to the Supreme Court (though he hired Georgetown professor Mike Gottesmann to argue the case before the Supremes). At some point, Nace decided that one of his Bendectin cases wasn't worth pursuing, and his client sued him.

In August 1998, his attorney in this case filed a brief in support of a motion for summary judgment, in which he argued, among other things, that Nace wasn't liable to the client because "courts soundly and uniformly reject the notion that Bendectin causes birth defects." Two years later, Nace told the New York Times that he still believes that Bendectin causes birth defects. I guess he forgot to tell his lawyer.

Update: Kaimi Wenger points out that Nace's attorney is likely arguing only that courts have ruled that Bendectin doesn't cause birth defects, not that it actually doesn't. I initially read the brief (as did the source who sent it to me, and the source who sent it to him) as denying that Bendectin causes birth defects, not simply that many courts have rejected causation evidence. The wording of the entire paragraph is awkward and somewhat ambiguous. The argument also isn't very persuasive without the concession that Bendectin doesn't in fact cause birth defects; without the concession, the argument is that because many other courts that the New Jersey trial court, in a summary judgment context, where all facts are construed against the party who wants the case dismissed, should reject the notion that evidence that Nace originally planned to present would have been admitted. This despite the fact that the issue had never come up before in New Jersey, and New Jersey's admissibility test was, at best, consistent with but not identical to the test in other jurisdictions. But, on rereading the brief, I think it is just a bad argument, not (intentionally) an explicit argument that Bendectin doesn't cause birth defects. Nevertheless, one would have thought that Nace would be reluctant to have his attorney argue that his experts' testimony that Bendectin causes birth defects wouldn't be admissible in New Jersey which, in practice, is among the most plaintiff-friendly jurisdictions in the country.

* Paolo Mazzotta, et al., Attitudes, Management and Consequences of Nausea and Vomiting of Pregnancy in the United States and Canada, 70 INT´┐ŻL J. GYNECOLOGY & OBSTETRICS 359 (2000).

** Melanie Ornstein, et al., Bendectin/Diclectin for Morning Sickness: A Canadian Follow-up of an American Tragedy, 9 REPRODUCTIVE TOXICOLOGY 1 (1995)

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

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