Full opinion text
OPINION SEERDEN, Chief Justice. This is a product liability case. Appellees, Marilyn and Ernest Havner, sued Merrell Dow Pharmaceuticals, Inc. (“Merrell”) on behalf of their minor daughter, Kelly. Kelly was bom with no fingers or thumb on her right hand. Appellees alleged, and the jury found, that these birth defects were caused by Mrs. Havner taking the drug, Bendectin, a morning sickness drug manufactured by appellant. Merrell appeals from the judgment of actual and exemplary damages entered in favor of the Havners. Four issues are presented for review: first, whether there is legally or factually sufficient evidence of causation to support the verdict; second, whether the court erred in accepting a verdict when the same ten jurors did not concur on all material issues; third, whether legally and factually sufficient evidence supports the award of punitive damages, and if so, whether such an award violates Merrell’s due process rights under the United States Constitution and the Texas Constitution; and fourth, whether the trial court reversibly erred in admitting various items into evidence. The Havners, by way of cross points, complain of the trial court’s reduction in the damage award and the failure to award prejudgment interest. We reverse and render. FACTS AND PROCEDURAL HISTORY Kelly Havner was bom with a limb reduction defect consisting of missing fingers and thumb on her right hand. During the pregnancy with Kelly, Marilyn Havner took the anti-nausea prescription medication, Bendec-tin, which is composed of doxylamine succi-nate (an antihistamine) and pyridoxine hydrochloride (vitamin B-6). This drug was manufactured in the United States from 1956 to 1983 by Merrell. On Kelly’s behalf, the Havners filed a product liability action against Merrell asserting that the birth defect was caused by Mrs. Havner’s ingestion of Bendectin during pregnancy. The Havners advanced liability theories based on negligence, defective design, and defective marketing. The trial was bifurcated with liability and compensatory damage issues being resolved by the jury prior to the presentation of any evidence on punitive damages. Both phases of the proceeding were presented to the same twelve jurors. Ten jurors assessed liability and actual damages in phase one. In phase two, a different ten of the same twelve jurors found Merrell grossly negligent and assessed punitive damages. Merrell moved for judgment notwithstanding the verdict, to set aside the jury findings, and for a new trial. Those motions were denied. The trial court reduced the punitive damage award to four times the compensation award and entered judgment for the Havners. “NO EVIDENCE” POINT Liability Standard In product cases involving either alleged negligence or design and marketing defects, a plaintiff must prove that the defective product was a producing cause of the injuries suffered. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex.1984); American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 657 (Tex.App.—Corpus Christi 1987, writ ref'd n.r.e.). Producing cause has been properly defined as an efficient, exciting, contributing cause which, in a natural sequence, produced the injuries complained of. Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975); American Cyanamid Co., 732 S.W.2d at 657. In its first point of error, Merrell asserts that there is no evidence of probative value on the essential element of producing cause. Merrell contends that the case presented by the Havners is fatally defective because there is no evidence that the drug, Bendectin, causes human birth defects in general, or limb reduction defects in particular. Further, no evidence was offered, asserts Mer-rell, that Mrs. Havner’s ingestion of Bendec-tin during her pregnancy was the producing cause of Kelly’s deformed right hand. Standard of Review In reviewing a “no evidence” point concerning producing cause of injury, only the evidence and inferences which tend to support the finding of the jury will be considered. All evidence or inferences contrary to the jury finding will be disregarded. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). See also Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (1994). In this ease, therefore, only the evidence and inferences which support the jury’s finding that Bendectin caused Kelly Havner’s birth defect will be considered. If there is any evidence of probative force to support the finding of the jury, the “no evidence” point must be overruled. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). However, “when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 n. 3 (Tex.1993). Expert Testimony Required The issue of causation was submitted to the jury, over appellant’s objection. The trier of fact is generally allowed to decide the issue of causation in the following cases: (1) when general experience and common sense will enable a layman to fairly determine the causal relationship between the event and the condition or injury; (2) when there is a scientific principle, a sharp categorical natural law, which theorizes that a result is always directly traceable back to a particular cause; and, (3) when the reasonable probability of a causal relationship is shown by expert testimony. Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.1970); American Cyanamid Co., 732 S.W.2d at 657. It was undisputed that in a majority of limb reduction birth defects, isolation of the cause has eluded the determined efforts of even the brightest scientific minds. Therefore, in this ease, a lay jury is ill-equipped to determine causation armed only with general experience and common sense. So too, birth defects of this type are not the subject of a sharp categorical natural law, nor are they usually traceable back to a particular cause. Neither is this the usual drug liability case where the product is known to produce certain effects under particular circumstances, and the inquiry is merely whether those circumstances are present. Nor is this an instance where the injurious nature of the product has become apparent after the plaintiffs use and the inquiry is whether the manufacturer knew or should have known of the risk at an earlier date. No causal link has been firmly established between Bendectin and human birth defects. Applicable here is the statement made by the United States Court of Appeals for the Second Circuit when it affirmed a summary judgment for the herbicide manufacturer in the Agent Orange litigation: This is not a case in which a hazard is known to have existed in hindsight and the issue is whether the defendant had sufficient knowledge of it at an earlier time to trigger an obligation to inform. Existence of hazard remains unproven to this date. In re Agent Orange, 818 F.2d 187, 193 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct. 2898, 101 L.Ed.2d 932. This case, therefore, falls into the third category where causation must be proved, if at all, by scientific expert testimony as to the reasonable probability of that causal link. Contrary to appellees’ assertions, lay testimony is legally insufficient to establish cause in this case. See Lenger, 455 S.W.2d at 706; American Cyanamid Co., 732 S.W.2d at 657. Reasonable Probability To constitute proof, the expert testimony must establish the “reasonable probability” of a causal connection between Mrs. Havner’s ingestion of Bendectin and Kelly’s birth defect. See Schaefer v. Texas Employers’ Ins. Ass’n, 612 S.W.2d 199, 202 (Tex.1980). “Reasonable probability” has been defined as: “testimony predictive of what will happen in the future ... results reasonably to be anticipated.” Insurance Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex.1966). [ T]his probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury ... In the absence of reasonable probability, the inference of causation amounts to no more than conjecture or speculation. Schaefer, 612 S.W.2d at 202. “Proof of mere possibilities will not support the submission of an issue to the jury.” Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). While reasonable inferences from the evidence are permissible, a possible cause only becomes “probable” when in the absence of other reasonable causal explanations it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue can be submitted to the jury. Parker v. Employers Mutual Liab. Ins. Co. of Wis., 440 S.W.2d 43, 47 (Tex.1969) (emphasis ours) (expert testimony that radiation exposure “could have” caused plaintiffs cancer was held to be “no evidence” of causation). While it is “not absolutely necessary that an expert couch his opinion in terms of a ‘reasonable medical probability,’ we still embrace the principle that a jury issue should not be submitted when it is based merely upon speculation and conjecture.” Duff, 751 S.W.2d at 176 (evaluation of causation in medical malpractice action). Additionally, even when an expert expresses his opinion using the magic words, “reasonable probability,” the entire substance of the expert’s testimony must be examined to determine if the opinion is based on demonstrable facts and does not rely solely on assumptions, possibility, speculation and surmise. See Schaefer, 612 S.W.2d at 204-05 (expert testimony that exposure to contaminated soil, to a “reasonable medical probability,” caused the plaintiffs tuberculosis held to be “no evidence” of causation). See also Myers, 411 S.W.2d at 713 (expert testimony held to be “no evidence” that traumatic injury was producing cause of plaintiffs death from cancer); Ralph v. Mr. Paul’s Shoes, Inc., 572 S.W.2d 812, 814 (Tex.Civ.App.—Corpus Christi 1978, writ ref'd n.r.e.). Our review is, therefore, confined to a consideration of only the evidence and inferences which tend to support the jury finding of causation, ignoring all contrary; but the supporting evidence must have some probative force. See E-Z Mart Stores, 825 S.W.2d at 458; Schaefer, 612 S.W.2d at 204-05. With expert testimony, in order to possess probative force, the opinion must amount to more than suspicion or speculation. See Schaefer, 612 S.W.2d at 204-05. While certainty is not required, an expert scientific opinion must be grounded, at the very least, on some demonstrable underlying scientific data or logical inferences therefrom. Tex.R.Civ.Evid. 702, 703, & 705. When the phrase “reasonable medical probability” is used, it -will amount to some evidence only when it represents the overall substance of the expert’s opinion and is based on more than purely speculative conclusions or personal opinion ungrounded in scientific reality. See Schaefer, 612 S.W.2d at 204-05; see also Tex.R.Civ.Evid. 702, 703, & 705. Reasonable probability cannot be created by the mere utterance of magic words by someone designated an expert. Id. Application to Facts Mrs. Havner’s physician testified that he prescribed Bendeetin for Mrs. Havner based on the information provided by Merrell. As proof of that information, the Havners had admitted into evidence the page from the 1981 Physician’s Desk Reference (PDR) which revealed the following warning listed for Bendeetin: Precautions: Because of potential drowsiness, Bendeetin should be prescribed with caution for patients who must drive automobiles or operate machinery. Studies in rats and rabbits have revealed no suggestion of drug-induced fetal abnormalities at doses of Bendeetin up to 90 times the maximum human dose. In addition, several epidemiologic studies in women who received Bendeetin during pregnancy have shown that the incidence of birth defects in their offspring is no higher than in women not taking the drug during pregnancy. Nevertheless, like all drugs considered for use during pregnancy, particularly during the first trimester, Ben-deetin should be used only when clearly needed. The Havners then offered the testimony of five experts to show that the warning issued by Merrell was “false” and that causation existed. The Havners’ experts, however, were unable to offer any demonstrable scientific data available to Merrell in 1981, or even available today, which would indicate that a general causal relationship exists between human birth defects and Bendeetin administered at the normal human therapeutic dose. Two opinions were based on scientific data concerning test-tube analysis and chemical composition analogies which, in the absence of animal and human studies, might raise a suspicion that Bendeetin was a human terato-gen. The opinions of the other three experts consisted of criticism of the animal studies and the multitude of human epidemi-ologic studies which all indicate that, at normal doses, there is no statistically significant association between Bendeetin and human birth defects. Without any direct human scientific data to substantiate their theory of causation, the Havners’ experts merely attempted to refute the methodology employed and the conclusions reached in the live animal and human epidemiologic studies relied on by Merrell. They inferred the existence of causation by asserting that proof of the contrary does not exist. Indulging the Havners’ experts to the outer limits of inference in their claim that all the animal studies and all the human epide-miologic studies are wrong, the most we can conclude is that Merrell has no conclusive evidence that Bendeetin never causes birth defects in humans and that the warning issued in the 1981 PDR might be inaccurate. However, absence of evidence of a fact, standing alone, does not amount to some evidence of its converse. Absence of absolute proof that Bendectin does not cause birth defects in humans, is not some evidence that it does. In this case, the burden of proof operates in favor of Merrell, the defendant below. The Havners’ defective marketing claim (failure to warn) does not alter this burden. Merrell was not required to prove lack of causation. “A manufacturer who knows or should know of potential harm to a user because of the nature of a product is required to give an adequate warning of such dangers.” American Cyanamid, 732 S.W.2d at 656 (citing to Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801 (Tex.1978)). Implicit in this rule is the presumption that the product causes some harm. Before the adequacy of the warning can even be evaluated, the Havners must produce some evidence that Bendectin is harmful when ingested by humans at normal dosage levels. Merely showing that the warning was inaccurate, as it related to animal studies, is not the same as showing that it inadequately warned of a potential for human harm. Mere inaccuracy, without harm, cannot render a warning tor-tious. Therefore, to prevail on any theory that they advanced, even the failure to warn claim, the Havners were required to offer at least some evidence that Bendectin, more likely than not (to a reasonable probability), caused Kelly’s defect. This requirement [scientific testimony of causation to a reasonable probability] does in some instances place extraordinary burdens of proof on claimants. But once the theory of causation leaves the realm of lay knowledge for esoteric scientific theories, the scientific theory must be more than a possibility to the scientists who created it. For to the scientific mind, all things are possible. And with all things possible, citizens would have no reasoned protection from the speculations of courts and juries. Parker, 440 S.W.2d at 49 (citations omitted), Having scrutinized the record, we hold that, despite the use of magic words by the Hav-ners’ experts, there is no evidence of that causal link. The substance of the Havners’ expert testimony is as follows: 1) Dr. Jay Glasser Dr. Jay Glasser, a Ph.D. in experimental statistics, confined his testimony to a review of the human epidemiologic studies conduct ed with Bendectin by other researchers. Epidemiology measures the statistical relationship, if any, between exposure to an agent, such as Bendectin, and the incidence of a condition, such as birth defects, in a scientifically selected sample population. Depending on the methodology employed, the incidence of the condition in exposed cases is compared with either non-exposed cases exhibiting the same condition, or with exposed cases who do not exhibit the condition. The result is stated as a risk or odds ratio, which is reported with reference to 1.0, or equal risk. This ratio is then converted to a “confidence interval”, a measure which compensates for variables and randomness. Dr. Glasser explained these concepts of relative risk, odds ratio, confidence interval, and statistical significance as they relate to human epidemiology. He stressed that, in investigating the connection between a drug and adverse effects, there is an important difference between “lack of evidence of an association” and “evidence of no association.” He divided the conclusions inferable from epidemiologic studies into three zones, depending on whether the confidence interval includes 1.0, or equal risk. When the entire confidence interval falls below 1.0, the inference is that a drug has a protective effect. When the entire confidence interval falls above 1.0, the inference is that a drug has an adverse effect. When the confidence interval includes 1.0, the study is considered “inconclusive,” “no evidence of anything,” in the “zona obscura.” Dr. Glasser then testified concerning the more than twenty-one human epidemiologic studies that have been conducted with Ben-dectin. After stating the methodologic faults of all the reported studies, Dr. Glasser notes that all but one are “inconclusive” by virtue of the fact that the confidence interval of each encompasses 1.0. Dr. Glasser admitted that the only study which showed an adverse effect (the Rothman Study) utilized the old three-component Bendeetin, an entirely different drug than that ingested by Mrs. Hav-ner. On the basis of the very studies he termed “inconclusive,” Dr. Glasser then opined that: more likely than not, Bendeetin is an associative factor in raising birth defects.... [T]here is an association more likely than not between Bendeetin and limb reductions _I believe that there is an association between — from the sum and substance of the literature that I reviewed and from my point of expertise, that it has an association of Bendeetin with congenital disorders. His own testimony defines the parameters of the word “association” in this context. Dr. Glasser stated: “Association simply means that one thing is related to the other. But we cannot claim that one thing causes the other.” Dr. Glasser revealed the reasoning he employed in finding an association from his review of “inconclusive” studies: [ B]ecause my background is in public health, as I say, being a faculty member of two schools of public health and being trained in three, that one of the hallmarks of public health is guarding the safety and decision as to whether something is safe or efficacious. You do look at the balance of the data and you always look on the side of safety. And that is again, in trying to reach a judgment, I look beyond what is strictly a statistical interpretation on a one-at-a-time confidence interval or relative risk finding and try to see the direction ... Because of his public health orientation, Dr. Glasser rejected the very principles, grounded in statistics and epidemiology, that he painstakingly explained to the jury. He “refuted” demonstrable scientific data, not with contradictory scientific data, but with a conclusion based on his personal feeling that it is better to err on the side of safety. Despite his own profession that epidemiologic studies are unable to prove “no association,” proof is precisely what Dr. Glasser would require. Taken at its best, Dr. Glasser’s testimony might be some evidence that Merrell is unable to prove conclusively that there is no link, no association, no relation between Ben-deetin and human birth defects; but his opinion is not some evidence that a causal link does exist. 2) Dr. Adrian Gross Dr. Adrian Gross, a veterinarian and former scientific advisor for the Food and Drug Administration (FDA), testified on the basis of animal studies conducted from the early 1960’s through the early 1980’s by both Mer-rell and independent researchers. The studies were conducted on rats, rabbits, monkeys, and baboons, and utilized dosages from two to 2400 times the equivalent human dose. The various researchers concluded generally that at dosages of 50 to 100 times the recommended human dose, Bendeetin caused no effect on developing animal embryos. Dr. Gross reviewed each study and asserted why each was “useless” or “inappropriate” in determining whether Bendeetin was a terato-gen. While all the actual researchers were in full concurrence that harmful effects were exhibited only at levels far in excess of the human dose, Dr. Gross disagreed. On the basis of a “data-audit” of each study, he pointed out what he considered discrepancies between the raw data and the summary report, and without any further reason, explanation, or scientific data in support of his position, he concluded that, regardless of dosage, Bendeetin is teratogenic in animals: Q. Now, Doctor, if I can just read one of those statements, on page two, and go into it a little bit more, then. It says: “In the present case doxylamine succinate looks like ... a clear-cut teratogen in Wistar rats of 100 milligrams per kilogram per day and higher. Fifty milligrams per kilogram are to declare as teratogenic, and of no effect level for rats.” A. Yes, sir. Q. Well, first of all, would you agree with the part about being a clear-cut teratogen? A. Yes, that I certainly agree with. Q. And, Doctor, from your analysis, then, as you went through it, did you look at the vast numbers of animals that they used? A. Yes. Q. And what is your opinion? A. My view is that — Well, this was highly significant teratogenic in Wistar rats, but it’s the last sentence that I take exception. “50 milligrams per kilogram are to declare as teratogenic no effect level for rats.” What they’re saying, in other words, is that 50 milligrams per kilogram did not seem to have an effect. That’s what I don’t agree with.... I would say that it’s a clear-cut teratogen, period. The higher the dose that one gives, the more noticeable these effects. Based on the same “data-audit” of the same animal studies, Dr. Gross then extended his opinion to humans as well: “My opinion is that Bendeetin is teratogenic, period, meaning to animals and/or humans.” On the basis of his disagreement with the conclusions of the authors of the various studies, Dr. Gross opined to the jury that the product information listed for Bendeetin in the 1981 PDR was “completely false.” Dr. Gross agreed that when a drug is available by prescription only, there is risk involved, especially at doses higher than recommended. He admitted that the dosages utilized in the studies that revealed animal birth defects would be equivalent to a human taking 1200 to 4800 Bendeetin tablets at one time. He revealed that: A What the Food and Drug Administration requires, as a matter of policy, is that tests in animals should be carried out at such doses until they become — the drug is clearly toxic. It kills the animal. So that it becomes sick in some way, and then to back off from that at regular intervals. Q. Okay. A. So a test that — in which you see nothing at all, on its face is not a very useful test because the implication is that you haven’t gone high enough. Despite this FDA requirement, Dr. Gross uses those same ultra-high dosage animal studies to infer human teratogenicity without any qualification as to dosage level. Even under his reanalysis, he offered no evidence of adverse effects at dosage levels at or even near the recommended human dose. In arriving at his opinion, he indicated that human epidemiology studies with Bendeetin were of no concern to him. In substance, his opinion was not grounded in any demonstrable scientific data. It was based merely on criticism of multiple animal studies which all substantiated Merrell’s position. Indulging in every inference possible from his “discrepancy” theory, we are still left with only a possibly inaccurate product precaution regarding the ■ animal studies, but with no underlying data relating either to defects in animals at lower dosages or to causation in humans. 3) Dr. Stuart Newman Dr. Stuart Newman, a Ph.D. in chemistry, testified on the basis of four in vitro studies done with Bendeetin. He initially instructed the jury on the general aspects of human pre-natal development, and then focused on the period of limb development. Dr. Newman related the results of experiments done by others on the isolated limb bud cells of chickens and mice. When doxylamine succi-nate was applied directly to the cells, the development of cartilage was inhibited. When asked to explain, Dr. Newman stated: What it means is that, if this substance is present in a developing embryo in such a way that it can get to the cells of the developing embryo, it will cause an impairment or an inhibition of the process that I described before, chondrogenesis of the limbs. Dr. Newman opined that “doxylamine is a teratogen in humans.” He stated that the defect exhibited by Kelly was consistent with the type of cartilage impairment reported in the studies and could have been caused by a teratogen ingested during the period of limb development. Dr. Newman then stated that Mrs. Havner’s ingestion of Bendectin coincided with the critical period for Kelly’s limb development. From a review of her medical records he could not identify any other potentially teratogenic substance ingested by Mrs. Havner during this critical period. Direct and cross-examination of Dr. Newman revealed that the following assumptions are required in order to infer human terato-genicity from in vitro animal cell studies: 1) that human cells react exactly the same as animal cells; 2) that the human placental barrier is not impervious to doxylamine; 3) that a living human being does not metabolize the chemical (which would render it partially or completely inert); and 4) that the concentrations of the chemical in human fetal tissue are at least equal to that found in the mother. In an attempt to establish that Bendectin crosses the placenta, Dr. Newman testified that doxylamine succinate was a type of antihistamine, and that studies in the 1950’s revealed that some antihistamines caused abortions or resorptions of pregnancy in rats and mice. However, he admitted that the antihistamines studied differed in chemical structure from doxylamine succinate. To establish concentration in the fetus, Dr. Newman cited studies in mice showing concentrations of doxylamine to be higher in fetal tissue than in the mother. Indulging every inference in his favor, we still note the total absence of any evidence that human cells react the same as animal cells or that a live human would not metabolize the chemical. Dr. Newman admitted that all animals do not react identically to the same chemicals, and that animals and humans do not necessarily metabolize chemicals in the same way. He testified that the chromosomal makeup of animals and humans varies widely which would predispose to wide variation in reactions and metabolism. He revealed that although in vitro testing utilizing human cells is available, none has been performed with Bendectin. Neither have any metabolism studies been performed despite the millions of women who have ingested Bendectin dur-mg pregnancy. Even assuming the validity of the animal in vitro studies upon which Dr. Newman relies, his own admissions reveal that there is no evidence relating to two of the four underlying assumptions absolutely necessary to his inference. The studies, therefore, raise no more than a possibility that Bendeetin could be a human teratogen. Because Dr. Newman’s opinions rely solely on these mere possibilities, his testimony lacks the probative force necessary to consider it “some evidence” of causation. tí Dr. Shanna Swan Dr. Shanna Swan, a Ph.D. in statistics and chief of the Reproductive Epidemiology Program of the State of California, testified as a rebuttal witness to counter data introduced by Merrell from the numerous human epide-miologic studies which all fail to establish a statistically significant link between Bendec-tin ingestion and human birth defects. Her testimony was similar to that of Dr. Glasser, and lacks probative value for the same reasons. She has never conducted a Bendeetin epidemiologic study herself, nor can she even testify to one conducted by someone else that supports her conclusions; but Dr. Swan opines that there is a probable teratogenic risk to a child born after exposure to Bendec-tin during gestation and that “more probably than not [Bendeetin] is associated with limb reduction defects.” In support of her hypothesis, Dr. Swan recounted all the possible faults of the human epidemiologic studies which refute her hypothesis. She concludes that all the studies are flawed in some manner and therefore cannot serve to prove that Bendeetin is free from human teratogenic effect. She recites that the methods of pooling and meta-analysis of data utilized by Merrell to refute causation are “megasilliness,” although she admits to having used the same techniques herself with other products. She does not refute with demonstrable scientific data; she merely injects doubt as to the value and conclusiveness of Merrell’s evidence. Taking Dr. Swan’s testimony to the outer limits of inference, we are left perhaps to wonder how irrefutable Merrell’s proof is, but we are presented with not one scintilla of evidence that a causal link actually exists between Bendeetin and human birth defects. 5) Dr. John Palmer The Havners’ principal causation expert, Dr. John Palmer, has both a medical degree in internal medicine and a doctorate in pharmacology. His scientific area of concentration is a study of the effectiveness of drugs to combat allergies. Dr. Palmer’s only examination looked at Kelly’s hand the day before trial. He was unable to identify the type or pattern of Kelly’s defect, could make no observations from her x-rays, and admitted that, except for serving as an expert witness in other Bendeetin litigation, he has never studied nor diagnosed the cause of a human birth defect. Dr. Palmer was unaware and unconcerned with the dosage, timing, or number of Bendeetin tablets ingested by Mrs. Havner. However, Dr. Palmer testified as a purported expert not only in pharmacology, but also in toxicology, clinical teratology, chemical structure activity analysis, in vitro studies, animal teratology studies, human fetal development, and genetics. He advanced the critical opinion that Bendeetin not only generally causes human birth defects, but that it specifically caused Kelly’s limb reduction defect. Dr. Palmer based his opinion partially on the same in vitro studies, animal studies and chemical analogy studies utilized by the other experts called by the Havners. As outlined above, a finding of even general causation, in reliance on these existing studies, amounts to no more than pure speculation. Additionally, Dr. Palmer relied on Drug Experience Reports (DERs). In 1972, Merrell reviewed 96 DERs that it received concerning birth defects in children of the millions of Bendeetin exposed mothers. DERs report the concurrence of an effect with the use of a drug, and are filed by doctors, lawyers and other individuals. Dr. Palmer admitted that the reports are voluntary and “unsubstantiated,” that they lack scientific methodology and controls, and that they do not suggest causation. However, on this tenuous basis, despite the admitted fact that no scientist who has actually researched the hypothesized relationship between Ben-dectin and birth defects has concluded that there is a causal relationship, Dr. Palmer opined specific causation in this case. His opinion is wholly without any foundation or underlying scientific support, and is, in essence, no more than personal lay opinion and surmise disguised as scientific dogma. Battle of Experts The Havners argue that this is a classic battle of the experts, and, therefore, our holding in American Cyanamid controls here. See 732 S.W.2d at 648. We note that in American Cyanamid, another drug product liability action, there was underlying, scientifically based, opinion testimony on both sides of the controversy. Id. at 668. In American Cyanamid, experts for both parties relied principally on the research and reports of others, but that underlying research exposed opinions supportive of both causation and lack of causation. Id. The primary researchers had reached differing conclusions. Id. at 656-57. Such is not the case here. All the primary researchers who have studied Bendectin have reached but one conclusion, and it does not support the theory postulated by the Havners’ experts. Casting unsubstantiated aspersions on the work of others cannot be considered a substitute for real scientific data. Our deference to the jury determination in the American Cyanamid case, a true battle of the experts, is inapplicable here. The Havners have failed to bring forward anything more than suspicion on the essential element of causation. While Dr. Palmer attempted to piece the suspicions together into a mosaic amounting to something more, it remains a basic premise that: some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence- Our system of justice is designed to ensure that our fundamental right of trial by jury does not become some mere game of chance.... We are not empowered to convert some evidence into no evidence. At the same time ... we are not empowered to convert mere suspicion or surmise into some evidence. Where there is real evidence, we must uphold the jury verdict, but in cases such as this where there is only real suspicion, we must overturn it. Browning-Ferris, Inc., 865 S.W.2d at 928 (reversing a jury verdict and rendering judgment for the defendant on a tortious interference claim). Here there is only real suspicion. We sustain Merrell’s legal insufficiency point. Having sustained on this ground, it is unnecessary to reach Merrell’s other points of error, or the Havners’ cross-points. Tex. R.App.P. 90(a). We, therefore, REVERSE the judgment of the trial court, and RENDER that the Hav-ners take nothing by this suit. Before the court en banc. OPINION DORSEY, Justice. This is an appeal from a products liability suit against a drug company, Merrell Dow Pharmaceuticals. Merrell Dow manufactured and marketed Bendectin, a drug to relieve the nausea associated with pregnancy. The Havner family claims that the drug caused their daughter’s birth defect. The plaintiffs obtained a favorable jury verdict and judgment. Merrell Dow appealed. On original submission a panel of this court found no evidence to support causation, and reversed and rendered the judgment. We granted rehearing en banc, heard oral argument before the entire court, and now AFFIRM the judgment below in part and REVERSE in part. We REVERSE that part of the judgment that awards punitive damages, but otherwise AFFIRM. I. Procedural History Marilyn and Ernest Havner sued Merrell Dow Pharmaceuticals and Dr. David Bruce on behalf of their daughter, Kelly. Kelly was bom with a defect of her right hand; her fingers are not fully formed. During her pregnancy, Marilyn Havner took Bendeetin prescribed by Dr. Bruce. The Havners claim that the Bendeetin caused Kelly’s birth defect. The case against Merrell Dow was tried for four weeks in September 1991. The jury found that Merrell Dow was negligent, that its negligence proximately caused Kelly’s birth defect, that Bendeetin was defectively designed and marketed, and it awarded $3.75 million in actual damages. The verdict was signed by ten jurors. The punitive damages portion of the trial was bifurcated. The jury found Merrell Dow to be grossly negligent and awarded $30 million in punitive damages. The verdict was not unanimous and ten different jurors signed the punitive damages charge. Judgment was entered June 1, 1992, awarding $3.75 million in actual damages, prejudgment interest in the amount of $15 million, and $20,205,821.80 in punitive damages. The punitive damages were reduced from the verdict amount pursuant to section 41.007 of the Civil Practice and Remedies Code. It is from this judgment that Merrell Dow appeals. Merrell brings four categories of complaints: legal and factual sufficiency of the evidence of scientific causation; that the same ten jurors did not find both liability and actual damages that found gross negligence; a challenge to the award of punitive damages; and several evidentiary challenges. II. Legal Sufficiency of the Evidence A. Standard of Review In reviewing a “no evidence” point of error, we consider the evidence and reasonable inferences therefrom in the light most favorable to the jury’s finding and we disregard all contrary evidence and inferences. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). Merrell claims that there is no evidence to support the jury’s finding of causation between Bendeetin and Kelly Havner’s birth defect. Although the Havners put on extensive scientific evidence in support of their claims, Merrell contends that the evidence offered was not reliable, and thus not helpful to the jury. Even if the challenged evidence was admissible, Merrell contends that it is in effect “no evidence” because it is too weak to do more than create a suspicion of causation. Merrell claims that the Havners’ experts did no more than mouth the “magic words” of reasonable medical or scientific probability and that there is no basis in the evidence to support their stated conclusions. The Havners attempted to do two things with their experts: 1) establish that Bendee-tin caused Kelly’s birth defect and 2) defuse Merrell’s defense that Bendeetin did not cause Kelly’s birth defect because it does not cause birth defects generally. In attempting to prove their first theory, the Havners produced evidence that limb reduction defects are rare, approximately 4 defects for every 10,000 live births. According to the Havners’ experts, for Bendeetin to cause a limb reduction defect it must be ingested during a twenty day period within the first trimester when the fetal skeleton is developing. This window of vulnerability is between 30 and 50 days after conception. According to her testimony and the medical records, Mrs. Havner was prescribed Bendeetin and took it for her pregnancy induced nausea. Dr. Newman calculated that she took Bendeetin dining that window of vulnerability. The prescribed dosage was one pill daily for twenty days. Several of the Havners’ experts reanalyzed data from studies performed by other scientists and concluded that animal and epidemiological studies demonstrated that there was a relationship between Bendeetin exposure and limb reduction and other birth defects. These conclusions differed from that of the authors of the studies. In some cases, the reanalysis was performed to focus on a portion of the study that dealt with Bendeetin although much of the other data did not. In other instances, the reanalysis focused on claimed discrepancies between the author’s own raw data and his conclusions. To rebut Merrell’s defense prophylactically, the Havners’ experts extensively criticized the studies that Merrell contends prove that Bendectin is safe. Some criticism was leveled at the objectivity of some of Merrell’s in-house researchers or other researchers who received funding from Merrell or other drug companies. Other criticisms involved sample size, use of inappropriate control groups, failure to properly classify participants as exposed or nonexposed, and other methodological concerns in both the animal and epidemiological studies. Merrell contends that criticism of existing studies which find no link between Bendectin and birth defects does not equal causation and we agree. But Merrell also claims that reanalysis of data and the resulting opinion of a scientist based on an evaluation of the existing data and that reanalysis is, as a matter of law, insufficient to support a finding of causation in any case. With that conclusion we differ. B. Admissibility of Scientific Evidence The trial court admitted the testimony of plaintiffs’ experts at trial after numerous objections by Merrell. Merrell filed numerous pretrial motions seeking to exclude plaintiffs experts and objected to the admission of their testimony at trial. Additionally, Mer-rell filed a motion for a directed verdict on the issue of causation and a motion for judgment nonobstante veredicto on the same issue. From January 1991 through judgment in June 1992, the trial court had numerous opportunities to consider and reconsider the admissibility of plaintiffs’ experts’ testimony. 1. Standards of Admissibility Expert testimony is admissible if it is helpful to the jury, is scientific, technical or other specialized knowledge, and if the expert is qualified by his knowledge, skill, experience, training, or education. Tex.R.Civ. Evid. 702; E.I. du Pont De Nemours and Co., Inc. v. Robinson, 38 Tex.Sup.Ct.J. 852, 858, - S.W.2d -, - [1995 WL 359024] (June 15, 1995). In interpreting that rule, our supreme court has also determined that the expert’s testimony must be relevant and rehable. DuPont, 38 Tex.Sup.Ct.J. at 858, - S.W.2d at -. The trial court’s responsibility is to make the preliminary determination of whether the testimony meets the standards set out by the court in DuPont. The factors established by the court as part of the reliability inquiry include, but are not limited to: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert ...; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Id. Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence and those factors will differ with each potential case. Id. The DuPont court notes that an expert who testifies based on his own primary research conducted independent of litigation “‘provides important, objective proof that the research comports with the dictates of good science.’ ” Id. at 858 n. 2, at - n. 2 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir.1995)). Once the trial court determines that the evidence is relevant and rehable, the court must then decide whether to exclude the evidence because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, its potential to mislead the jury, or other issues addressed by Rule 403. Id. at 859, at - (citing Tex.R.Civ.Evid. 403). 2. Application The trial court considered Merrell’s pretrial motions to exclude the Havners’ experts and held two separate hearings on the issue. We are mindful that in moving for summary judgment and seeking to exclude the Havners’ experts pretrial, the burden was on Merrell. This differs from the burden established in DuPont which is on the proponent to demonstrate the admissibility of its proffered evidence. DuPont, 38 Tex. S.Ct.J. at 859, - S.W.2d at -. The first hearing was in conjunction with MerreE’s motion for summary judgment. In that motion, MerreE contended that there was no proof of a causal connection between Havner’s ingestion of Bendeetin and Kelly’s birth defect. MerreE urged the court to reject the plaintiffs’ experts’ reanalysis of existing epidemiological studies, and to reject evidence of animal and in vitro studies. The court held a hearing on MerreE’s motion and denied it. Later in the case, MerreE filed motions in limine seeking to exclude the testimony of Shanna Swan, Ph.D., Dr. Gross, and any other evidence of causation based on the Havners’ experts’ conclusions. Again, the court held a hearing during which counsel discussed the testimony to be offered, Mer-reE’s objections thereto, and the Havners’ basis for its admission. There was no evidence taken at that hearing, but the parties discussed in detaE the testimony to be ehcit-ed. During that same hearing, counsel for MerreE referred back to the hearing on its motion for summary judgment which covered some of the same issues. AdditionaEy, during trial, the court held mini-hearings, outside the jury’s presence, on the issue of the various witnesses’ qualifications and basis for their opinions. In deciding to admit the testimony of ap-peEees’ experts, the trial court made an initial determination that the experts were qualified for the purposes of Rule 702. Tex. R.Civ.Evid. 702. The rule requires both that expert testimony be helpful to the jury and that an expert be qualified by knowledge, skiE, experience, training or education. Each of appellees’ experts was either a medical doctor or held a doctorate in a scientific area and had other specialized training or experience. Each met the criteria of specialized education or training. Mer-reE complains that appeEees’ experts aE had the wrong backgrounds to testify about Ben-deetin because they were not primary researchers in the field, had not individuaEy conducted tests on Bendeetin, and did not treat patients with birth defects. This restrictive standard is not encompassed in our rules, nor in the case law interpreting those rules. Each of appeEees’ experts worked in the area of statistical analysis, fetal development, teratology, pharmacology, or epidemiology, and most taught subjects related to the inquiry here at medical schools. Each was qualified to testify under the second part of the test estabEshed by Rule 702. Rule 702 also requires that expert testimony be helpful to the trier of fact. No one disputes that in cases such as this specialized knowledge is necessary to assist the fact-finder. A jury cannot determine scientific or medical causation in this type of case without the assistance of experts. See Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 708 (Tex.1970) (medical testimony required to establish causation in medical malpractice case where cause not readüy ascertainable from general experience and common sense); Hernandez v. Texas Employers Ins. Ass’n, 783 S.W.2d 250, 253 (Tex.App.—Corpus Christi 1989, no writ) (reverses? jury finding of causation in absence of medical testimony as to causation of asthma). To be helpful, scientific evidence must also be relevant and reliable. See DuPont, 38 Tex.Sup.Ct.J. at 858, - S.W.2d at -; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., - U.S. -, -, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469 (1993) (interpreting parallel Federal Rules of Evidence). We review the trial court’s assessment of the relevance and reliability of scientific evidence and its decision to admit or exclude the evidence for an abuse of discretion. DuPont, 38 Tex.Sup.Ct.J. at 860, - S.W.2d at -. a. Relevance First, we consider whether the proffered testimony was relevant. The Havners’ experts testified about the process of limb development, the time during gestation when that development can be interrupted, what can cause limb development to be interrupted, and why the experts believed that in Kelly Havner’s case Bendeetin caused her birth defect. All of this testimony is directly related to the determination of the Havners’ cause of action. See Tex.R.Civ.Evid. 401. The evidence satisfies the relevancy test. b. Reliability Merrell urges that appellees’ experts could not be helpful to the jury because their opinions were not based on sound scientific principles, but instead were “junk science” and thus unreliable. The inquiry established in DuPont requires that we now consider whether the trial court could reasonably found the evidence to be reliable under the DuPont standards. DuPont, 38 Tex.Sup.Ct.J. at 860, - S.W.2d at -. The theory that limb development occurs during a short period of time during conception is well established and accepted by experts for both sides. The theory that limb development can be impaired by exposure to teratogens during that period is also well accepted. Merrell denies that Bendeetin is a teratogen in humans, but Dr. Gross testified that Bendeetin appears on the United States Government’s list of human teratogens. Whether Bendeetin is a human teratogen has been the subject of scientific inquiry for several decades. The general consensus from epidemiological studies is that Bendeetin is not a human teratogen and does not cause limb reduction defects. However, even Mer-rell’s experts agreed that biological causation is inherently difficult to assess based on epidemiological studies. They agree that they could not say that thalidomide caused limb reduction defects based solely on epidemiological studies, although the scientific community accepts that it does. The extent to which an expert’s techniques rely on his subjective interpretation is part of the DuPont inquiry. Id. at 858, at -. The statistical techniques used by the Havners’ experts in examining the epidemiological data does not rely on the subjective interpretation of the expert. Experts for both sides used the same statistical techniques. Evaluation of the effect of Bendeetin and its components in laboratory studies does not depend on the subjective interpretation of experts, although there is a dispute in the scientific community over the proper classification of some observations of the animal fetuses at autopsy. Publication of the theories espoused by an expert at trial is another factor to consider in determining admissibility of expert opinion. The Havners’ experts generally are not published on the subject of Bendeetin and its role in limb reduction defects. Neither are Merrell’s experts. Dr. Newman, a Havner expert, has published in the general area of limb development. Other Havner experts have published in the areas of fetal development and statistical analysis of epidemiological data. Another Havner expert, Dr. Swan, published an abstract of research involving Bendeetin. Of Merrell’s experts, Dr. Greenberg has published generally on the subject of birth defects, genetic disorders and teratology; Dr. Friedman has published articles on clinical teratology, and has published a summary of the published studies on Bendeetin concluding that it is not a human teratogen. None of Merrell’s witness have published studies on Bendeetin other than the sum-raary Friedman prepared in connection with the database he operates on teratogens. Another factor is the rate of error of the techniques used by the experts. When considering the potential rate of error of the epidemiological studies, there is a wide variance among the studies. But all the experts use and rely on the same universe of material although their interpretations of the meaning of the data differ. The studies themselves indicate their confidence intervals and whether their results are statistically significant. The animal and in vitro studies likewise indicate the scientific limit of their applicability based on the size of the studies and the statistical significance of the results. The underlying theory that Bendectin causes birth defects has been investigated for many years by scientists all over the world. Although none of the studies have concluded that it does, the problem of limb reduction defects occurring by themselves and not as part of another cluster of birth abnormalities is very rare. To detect a change in the rate of such defects requires studies on a very large scale and very specific information as to when during the pregnancy Bendectin exposure occurred. None of the studies, even using statistical techniques to group them, has the requisite size or detail as to specific exposure. The various studies used by both parties to this litigation were generally not prepared for litigation. The reanalysis of the raw data performed by the Havners’ experts was prepared for litigation as was the analysis of existing studies performed by Merrell’s experts. Another consideration in determining reliability has been whether the expert relies on those things typically relied on by experts of the same type, whether he used methodologies used by other experts of the same type, and whether the testimony is within his area of expertise. See Daubert, - U.S. at ---, 113 S.Ct. at 2796-98. The Hav-ners’ experts relied on data developed by other scientists, as did Merrell’s experts. The reanalysis that several of the Havners’ experts did is a methodology that the Food and Drug Administration and the Environmental Protection Agency use to verify the reports they get from the industries they regulate. They separately analyze the data submitted as part of their regulatory function. The Havners’ experts all testified in areas in which they had expertise. These considerations weigh in favor of admissibility. It is critical to distinguish the search for truth in law and in science. The purpose of any legal inquiry is to resolve a dispute between the parties. The law is a body of rules that are applied to settle the issue, whether they be rules of substantive or procedural law. The rules may well impede evidence of the truth, such as the statute of frauds prohibiting testimony of an oral agreement between the parties. But these shortcomings and compromises have been accepted when put in balance with other considerations. We try to achieve justice through the application of the law. In the quest for justice, we say we are engaged in a search for truth, and we accept the jury’s verdict as true except in very limited circumstances. This determination by citizens of the crucial facts of the case is the bedrock of our jurisprudence, however wrong its conclusion is in the eye of God or objective reality. We accept the legitimacy of the verdict if the rules of evidence and procedure have been followed because this is the way our history has accepted as the best way for determining truth in the courtroom, especially when contrasted with the earlier methods of oath, ordeal or combat. What the jury finds may not be really true, but we will accept it as true in order to resolve the dispute. That one jury finds that a component of an automobile was negligently designed or manufactured is not a universal declaration that all of those same components were negligently designed or manufactured. Other plaintiffs with the same complaint will be put to their proof before different juries which may reach contrary results. Our jurisprudence accepts inconsistent results and restricts the law of the case to that particular case with those plaintiffs and defendants. Science searches for universal truths in order to understand the workings and composition of our world and ourselves. Its methods are continuous testing, probing, examining, and re-examining data; always comparing empirical findings to a given hypothesis to see if the hypothesis is correct. Many theories that were accepted as true 100 years ago have been so changed as to be scarcely recognizable, from our ideas about the culture of the Mayas to particle physics. This search and constant revision will continue into the future as the scientific method is applied by researchers. Science is not separated into two worlds: true and junk. Reasonable experts may arrive at differing conclusions given the same data. The law has always dealt with this, from the trials of Galileo and Scopes to the ordinary low-back pain collision case. The purpose of the trial is to resolve the dispute, not to find universal truths. 3. Conclusion We review the trial court’s decision to admit expert testimony for an abuse of discretion. DuPont, 38 Tex.Sup.Ct.J. at 860, - S.W.2d at -. “A reviewing court cannot conclude that a trial court abused its discretion if, in the same circumstances, it would have ruled differently or if the trial court committed a mere error in judgment.” Id. Only when a trial court acts without references to guiding rules or principles, do we conclude that it abused its discretion. Id. Considering all the factors enumerated by the court in DuPont, we cannot say that the trial court here abused its discretion in deciding to admit the testimony of the Havners’ experts. C. Scientific Evidence to Support Causation The Havners’ experts testified based on three kinds of studies: animal studies, in vitro studies, and epidemiological studies. All of the studies investigated whether Bendectin is a teratogen. Teratolo-gy is the study of teratogens, which are agents that cause birth defects. A summary of the relevant testimony follows. 1. Adrian Gross Adrian Gross currently works for the Environmental Protection Agency. He worked for the Federal Drug Administration for fifteen years. He testified that in his work he routinely examined the raw data supplied by drug and pesticide companies, analyzed it, and compared the results of his own analysis to the reports generated by the drug and pesticide companies in order to determine the validity and reliability of the conclusions drawn by the primary researchers. Gross holds a Doctorate of Veterinary Medicine and a Masters of Science in pathology. He has post-graduate training in statistics and microbiology and has had additional training in statistics and biometry. He has testified before Congress regarding the safety of drugs and pesticides and has published in the areas of animal pathology and statistics. The EPA relies solely on animal studies to determine the effects of chemicals; the FDA relies heavily on animal studies in the early stages of drug approval. Animal responses to chemicals (drugs or pesticides) are considered predictive of human response. Gross testified that in his analysis of the animal studies on Bendectin and its component doxylamine succinate, he used the same methodology that he has used throughout his career and that the methodology is generally accepted. He also testified that his opinions were based on a reasonable degree of scientific certainty. Additionally, he noted that Bendectin was on a 1987 governmental list of developmental toxicants. Developmental toxicants are teratogens. Gross’s use of reanalyzed data was not attacked in the testimony of the other experts, nor was it demonstrated that his techniques were unacceptable or disapproved. His conclusions, that Bendectin is an animal and human teratogen that causes limb reduction defects, were challenged by Merrell’s experts, but only Mer-rell’s counsel attacked his methodology. With that background, we cannot say that Gross’s conclusions drawn from animal studies on Bendectin are without foundation and are no evidence. The trial court did not abuse its discretion in admitting his testimony and his conclusions. 2. Jay Howard Glasser Jay Howard Glasser holds a doctorate in experimental statistics from the University of North Carolina, a Master of Science in bios-tatistics, and a Bachelor’s degree in zoology. At time of trial, he was an associate professor at the University of Texas School of Public Health at the Texas Medical Center in Houston. He has taught epidemiology, statistics, biomet