Rink v. Cheminova, Inc.

400 F.3d 1286, 66 Fed. R. Serv. 693, 2005 U.S. App. LEXIS 3222, 2005 WL 428418
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 24, 2005
Docket04-10160
StatusPublished
Cited by369 cases

This text of 400 F.3d 1286 (Rink v. Cheminova, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rink v. Cheminova, Inc., 400 F.3d 1286, 66 Fed. R. Serv. 693, 2005 U.S. App. LEXIS 3222, 2005 WL 428418 (11th Cir. 2005).

Opinion

BIRCH, Circuit Judge:

This appeal arises from the products liability and toxic trespass claims of nine individuals who allege they were exposed to a virulent substance used as a pesticide in Florida. The district court granted summary judgment to the manufacturer of the substance and its related entities following the court’s exclusion of expert testimony under the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Because the district court properly executed its gatekeeping function under Daubert, we find no abuse of discretion in the district court’s exclusion of expert testimony. Further, because the requisite proof of causation was lacking without the expert testimony, we AFFIRM the district court’s grant of summary judgment.

I. BACKGROUND

In May 1997, a Mediterranean fruit fly (“medfly”) was discovered in Florida. To protect the state’s agricultural industry from the harmful effects of a medfly infestation, the Florida Department of Agricul *1289 ture and Consumer Services (“FDACS”) and the United States Department of Agriculture (“USDA”) decided to engage in aerial and ground spraying of a mixture of protein bait and malathion, a pesticide, to eradicate the medflies. Consequently, FDACS and USDA purchased malathion under the trade name Fyfanon from its manufacturer Cheminova A/S. 1 The Fyfa-non was shipped from Cheminova’s plant in Denmark to the United States where it was deposited into storage facilities in Texas, Georgia, and Florida. The Fyfanon was then transported by Cheminova, Inc. from these storage sites to Tampa, Florida where FDACS and USDA officials mixed the malathion with .the protein bait and promptly sprayed the mixture over the Tampa metropolitan area and the surrounding counties. Shortly thereafter, certain individuals reported becoming seriously ill and subsequently brought this suit on behalf of themselves and others similarly situated in the State of Florida alleging, inter alia, products liability, negligence, and toxic trespass claims as a result of their exposure to the Fyfanon in the med-fly spray.

The theories of liability asserted by the putative class representatives 2 hinged on their allegations that the Fyfanon ultimately sprayed over Tampa was defective and caused their injuries. The specific defect they alleged was that the Fyfanon contained elevated levels of isomalathion due to improper storage. Isomalathion is a malathion derivative which renders malathion particularly toxic to humans. The putative cláss representatives maintained that, prior to its delivery to FDACS and USDA, Cheminova A/S and Cheminova, Inc. allowed the Fyfanon to be exposed to temperatures exceeding those recommended for safe storage, 3 which precipitated a chemical decomposition of the malathion that produced increased levels of isomalathion.

To prove these claims, the putative class representatives retained Dr. Jack Matson as an expert to reconstruct the temperatures to which the Fyfanon was exposed and to render an opinion as to the isomala-thion content in the Fyfanon ultimately used by FDACS and USDA over Tampa. Although Matson held a Ph.D. in chemical engineering and had previously worked with pesticides, he had no experience with malathion prior to being retained as an expert in this case. Matson issued reports on his findings in -October 2000, May 2001, and July 2002, and he opined a final conclusion in his January 2003 deposition. In the October 2000 report, he concluded that the Fyfanon was stored at temperatures exceeding 77 degrees Fahrenheit. He calculated these temperature figures by starting with national weather service temperature readings of the areas near the storage sites. He used the recorded high and low temperatures as the upper and lower limits of the probable temperature to which *1290 the Fyfanon was exposed; Then, on the basis of some evidence that the temperature inside the Texas storage facility was actually eighteen degrees higher than the ambient air temperature recorded by the weather service, 4 he added eighteen degrees to the upper limits of plausibility for each site. 5 Then, Matson averaged the upper and lower limits to arrive at the most probable temperature to which the Fyfanon was exposed. This figure was then input into an equation which calibrated the level of isomalathion as a function of time and temperature exposure. Matson utilized the same methodology to derive temperature data in his May 2001 report. In his July 2002 report, Matson also claimed that eighteen degrees should be added to the upper limit of plausibility, although his explanation for the increase in this report was based on his theory of temperature increases due to the radiant energy of the sun. Finally, in his January 2003 deposition, Matson again concluded that the Fyfanon was exposed to temperatures exceeding the recommended. 77 degrees Fahrenheit, although he based his conclusions on the autocatalytic effect that dimethyl , sulfide produces in malathion when it is stored for a certain period of time.

Following Matson’s deposition, Chemi-nova filed a motion to exclude expert testimony and a Daubert hearing ensued. At the conclusion of the five-day hearing, the district court excluded Matson because “the methodology by which he arrived at his ultimate conclusion is fundamentally flawed- because it is not based on ... sufficiently reliable data or facts.” R3-570 at 8. The district court found that “there is simply too great an analytical gap between the data relied on by Dr. Matson and his proffered opinions.” R3-570 at 8. In making this conclusion, the district court criticized Matson’s method of extrapolating temperature data from one site to another without making particularized findings which accounted for the differences in conditions and length of storage at each site. In addition, the district court faulted Matson for: (1) his lack of prior experience with malathion, (2) his failure to visit the Fyfanon storage sites, (3) his failure to consider the testimony of workers at the various storage facilities, and (4) his continued use of certain data in later reports that had been deemed unreliable. In discussing this fourth flaw in Matson’s methodology, the district court noted that the unreliability of his earlier data undermined his later calculations which used different methods but arrived at similar results. After making these observations, the district court added that there was no testimony that Matson’s method was tested, subjected to peer review, or generally accepted in the scientific community. Based on all of these findings, the district court granted Cheminova’s motion to exclude . Matson. In addition, the district court concluded that it necessarily followed that all the toxicology experts and treating physicians should be excluded as well because the relevance of them testimony depended on Matson’s findings. ■

*1291

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Bluebook (online)
400 F.3d 1286, 66 Fed. R. Serv. 693, 2005 U.S. App. LEXIS 3222, 2005 WL 428418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rink-v-cheminova-inc-ca11-2005.