           Case: 11-10035   Date Filed: 09/11/2014   Page: 1 of 14




                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-10035
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:09-cv-00321-VMC-TBM


GUILLERMO RAMIREZ,

                                                            Plaintiff-Appellant,

                                   versus

E.I. DUPONT DE NEMOURS & COMPANY,
a foreign corporation,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (September 11, 2014)

Before MARCUS, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:
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      This appeal originally was decided in December 2011, and the mandate

issued in January 2012. In 2014, however, one of the judges on the original panel

discovered that his wife owned stock in Defendant E.I. du Pont de Nemours &

Company (“DuPont”) at the time of the decision, so the judge determined that he

should have recused himself from the appeal. The parties were informed of the

disqualification, and Plaintiff-appellant Guillermo Ramirez, now deceased,

requested reconsideration of the appeal through his wife. Although we do not

think we necessarily need to reconsider the opinion because the judge was not

aware of his wife’s ownership in the company when he decided the case, so it

could not have influenced him, we think that the better course to follow is for us to

consider this appeal anew.

      Accordingly, the Clerk is directed to VACATE the prior opinion issued in

this appeal and issue the following opinion in its place. Nevertheless, after careful

consideration of the record and the parties’ briefs, we, like the previous panel,

affirm the district court.

                                            I.

      Guillermo Ramirez brought this action alleging that he developed cancer

from using Benlate50DF, a fungicide chemical product manufactured by DuPont,

in his farming operations in the early 1990s. He sued DuPont under theories of

strict liability and negligence.     Ramirez alleged that Benlate was a defective


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product because it contained a known carcinogen, Atrazine. He asserted that he

was diagnosed with kidney cancer in 2007 and brain cancer in 2008, “which was

more likely than not caused by Atrazine in the Benlate.” During the litigation,

doctors also found tumors in or around Ramirez’s pancreas.

      Following a trial, the jury, on special interrogatories, returned a verdict

favorable to DuPont. Specifically, although the jury found that Benlate was a

defective product that was unreasonably dangerous to the user and that DuPont

acted negligently, it did not find that Benlate was the legal cause of Ramirez’s

injuries. The district court entered judgment on the verdict in favor of DuPont.

Ramirez timely moved for judgment as a matter of law or, alternatively, a new

trial, pursuant to Rules 50(b) and 59(a), Fed. R. Civ. P. The court denied the

motion, and Ramirez brought this appeal. Ramirez argues on appeal that the

district court should have excluded the testimony of DuPont’s expert, Dr. Samuel

Cohen, and that the jury verdict was against the manifest weight of the evidence.

                                         II.

      We review the denial of a motion for judgment as a matter of law de novo,

applying the same standards as the district court. Lamonica v. Safe Hurricane

Shutters, Inc., 711 F.3d 1299, 1312 (11th Cir. 2013). We review the denial of a

motion for new trial for an abuse of discretion. Id. We also review for an abuse of

discretion a district court’s rulings regarding the admissibility of expert testimony


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under Daubert1. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1238 (11th Cir.

2005).

                                               III.

A.     Expert Testimony of Dr. Cohen 2

       Both sides introduced expert testimony at trial. Dr. Robert Bloome, D.O.,

Ramirez’s expert, testified that Benlate likely caused Ramirez’s injuries.                     By

contrast, Dr. Cohen testified that none of the four chemical contaminants in

Benlate at issue—Atrazine, Benomyl, Flusilazole, and Chlorothalonil—were

related to any of Ramirez’s tumors. Dr. Cohen is a licensed medical doctor with a

Ph.D. in cancer research. His research for over forty years has focused on the

chemical causation of cancer and the mechanism by which that occurs, and he is a

leading expert in this field. He receives some funding from private companies to

investigate certain company findings and studied the chemical Flusilazole for

DuPont.

       Dr. Cohen based his opinion that Benlate was not the cause of Ramirez’s

injuries on his review of scientific literature on the chemicals, documents from the

       1
           Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
       2
           We question whether this issue was timely raised before the district court in such a way
that it has been preserved for appeal. Ramirez’s pretrial motion to strike Dr. Cohen’s testimony
was not timely filed. Also, Ramirez did not move to exclude Dr. Cohen’s testimony at trial or
request a Daubert hearing after Dr. Cohen gave the purportedly objectionable testimony, instead
waiting until after the jury verdict to take any action. Nonetheless, because the district court
addressed this issue on the merits in response to Ramirez’s post-trial motion, we also address the
merits of this issue.
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Environmental Protection Agency (“EPA”) and DuPont, Ramirez’s medical

records, and the depositions of Ramirez and Ramirez’s expert witness, Dr. Bloome,

and on his personal research and experience. Dr. Cohen explained the process by

which the scientific community goes about determining whether a particular

chemical causes cancer in humans, which involves extrapolating from animal

studies and applying various “safety factors.” The EPA had done this type of risk

assessment for the farming chemicals at issue in this case and established

maximum exposure levels. The maximum level of exposure allowed by the EPA

for Benlate is based on a lifetime of occupational exposure of 35-40 years. Even

making “maximal types of assumptions” about Ramirez’s level of exposure to the

chemicals, Dr. Cohen opined that his exposure was well below the amount allowed

by the EPA. Thus, assuming that the animal studies showing the chemicals to have

some cancer-causing potential are relevant to humans, the level of Ramirez’s

exposure was well below that needed to cause tumors, according to Dr. Cohen.

      Moreover, based on Ramirez’s medical records, Dr. Cohen explained that

Ramirez’s tumors were unrelated to one another. In his general practice as a

surgical pathologist, Dr. Cohen often is asked to evaluate tumors to determine

whether they are cancerous, and he has direct experience working with the kinds of

tumors Ramirez had. According to Dr. Cohen, the tumor in Ramirez’s head or

neck likely was not cancerous, and farming chemicals were not a known risk factor


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for that type of tumor. Ramirez had clear-cell carcinoma of the kidney, the most

common type of kidney cancer. The major risk factors for Ramirez’s kidney

cancer are obesity, hypertension, high blood pressure, cigarette smoking, and

possibly diabetes, which usually is present in conjunction with obesity and high

blood pressure. Ramirez’s medical records showed a history of these risk factors.

In addition, exposure to farm chemicals is not known to increase the risk of kidney

cancer, and studies had shown that farmers generally had a decreased risk of

developing tumors than the general population. Finally, the tumor in or around

Ramirez’s pancreas appeared to be an “islet cell tumor,” a less common type of

tumor that arises from cells in the pancreas that produce insulin.

      Under Rule 702, Fed. R. Civ. P., which governs the admissibility of expert

testimony, “a district court acts as a gatekeeper to keep out irrelevant or unreliable

expert testimony.” United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th

Cir. 2013). In performing this gatekeeping function, trial courts should consider

three basic requirements: qualification, reliability, and helpfulness to the jury.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). The

reliability of scientific expert opinion depends on “whether the reasoning or

methodology underlying the testimony is scientifically valid and . . . whether that

reasoning or methodology properly can be applied to the facts in issue.” Id. at

1261-62 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 52-93, 113


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S. Ct. 2786 (1993)). In its role as gatekeeper, however, the district court should

not supplant the adversary system or the role of the jury. Ala. Power Co., 730 F.3d

at 1282. Rather, “[v]igorous cross-examination, presentation of contrary evidence,

and careful instruction on the burden of proof are the traditional and appropriate

means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113

S. Ct. 2786.

      Ramirez contends that the district court should have excluded the testimony

of DuPont’s expert, Dr. Cohen, on both a procedural and a substantive basis.

Procedurally, he asserts that Dr. Cohen’s testimony was inadmissible because

DuPont failed to disclose the documents upon which Dr. Cohen relied.

Substantively, Dr. Cohen’s opinion as to the legal cause of Ramirez’s injuries was

speculative and inadmissible under Daubert, according to Ramirez, because it was

not based on sufficient and reliable facts and data regarding the specific Benlate

that Ramirez used in his farming operations. Ramirez asserts that Dr. Cohen

improperly assumed, at DuPont’s direction, that the Benlate he used contained

chemical quantities lower than the maximum amount allowed by the EPA and

therefore was “safe.”

      With respect to disclosure of the materials upon which Dr. Cohen relied, we

find that DuPont adequately complied with Rule 26. Ramirez does not assert that

DuPont failed to disclose reliance materials but rather that DuPont did not


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physically produce those materials. But Ramirez’s motion to exclude Dr. Cohen

on the basis of lack of production was untimely, and Ramirez was not prejudiced

by any failure to disclose, given that he could have requested production of the

materials during discovery but, for whatever reason, did not do so. Ramirez may

not use his own apparent decision not to seek the materials as a basis for later

seeking to exclude Dr. Cohen. Accordingly, the district court did not abuse its

discretion in denying Ramirez’s motion to strike Dr. Cohen’s testimony on that

basis.

         Furthermore, we disagree with Ramirez’s contention that Dr. Cohen’s trial

testimony should have been excluded because it was speculative and based on

insufficient facts and data. Dr. Cohen clearly was qualified to testify as an expert

as to whether the chemicals in Benlate caused Ramirez’s cancer and tumors. And

Dr. Cohen’s expertise on the chemical causation of cancer and the mechanism by

which that occurs was helpful to the jury in determining whether the chemicals at

issue caused Ramirez’s injuries.      Therefore, the key question is whether Dr.

Cohen’s testimony was reliable.

         Under the circumstances, Ramirez has not shown, and we cannot say, that

Dr. Cohen’s reasoning or methodology applied to the facts in issue was

unsupported or unreliable. See Frazier, 387 F.3d at 1261-62. We find no support

in the record for Ramirez’s assertion that DuPont told Dr. Cohen to assume that


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Benlate was safe or that the expert himself simply assumed as much. As Ramirez

notes, there was no record evidence showing the actual quantities of the chemicals

in the Benlate used by Ramirez, and Ramirez’s actual exposure would also depend

on various contextual factors, such as the safety equipment and procedures

Ramirez used when mixing and spraying the chemicals. Thus, certainty was not

possible in this context, nor do we require absolute certainty from expert

testimony. Jones v. Otis Elevator Co., 861 F.2d 655, 662 (11th Cir. 1988). Dr.

Cohen identified the foundations and reasoning behind his opinions about

Ramirez’s likely level of exposure, and Ramirez was free to, and in fact did,

challenge these foundations during trial.

      The purported deficiencies identified by Ramirez go to the weight of Dr.

Cohen’s testimony, not its admissibility. See id. at 663. Dr. Cohen relied on

documents from DuPont and the EPA and scientific literature to come to his

conclusions regarding Ramirez’s likely level of exposure. While Ramirez argues

that this information was inaccurate because DuPont failed to report higher

concentrations of the chemicals to the EPA, or actively misrepresented such

information, this evidence does not render Dr. Cohen’s testimony unreliable.

Rather, this type of evidence is appropriate for cross-examination or rebuttal, “the

traditional and appropriate means of attacking shaky but admissible evidence.”

Daubert, 509 U.S. at 596, 113 S. Ct. 2786. Indeed, it appears that Ramirez was


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successful in convincing the jury that Benlate was not safe. Yet, as explained

below, the fact that the product was defective does not necessarily mean that the

product caused Ramirez’s injuries.

       Moreover, Dr. Cohen’s testimony regarding the nature of Ramirez’s cancer

and tumors was unconnected to any assumptions about Ramirez’s level of

chemical exposure. Consequently, to the extent that Dr. Cohen’s assumptions

regarding the chemical quantities in Benlate were defective, which, as explained

above, we cannot say that they were, that defect would not be fatal to Dr. Cohen’s

testimony as a whole. See McClain, 401 F.3d at 1245 (stating that a defect is fatal

under Daubert when any step in the analysis is unreliable).

       We also disagree with Ramirez’s contention that Dr. Cohen’s testimony was

unreliable because he did not engage in a differential diagnosis or explain the cause

of Ramirez’s tumors. Instead, we agree with the district court that Ramirez, as the

plaintiff, bore the burden of proving that Benlate caused his injuries. DuPont did

not need to prove, and its expert did not need to testify to, what actually caused his

injuries.

       For these reasons, we defer to the district court’s decision not to strike Dr.

Cohen’s trial testimony. See Frazier, 387 F.3d at 1258-59. Ramirez therefore is

not entitled to a new trial or judgment as a matter of law on this basis.




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B.    Weight of the Evidence

      Ramirez also argues that the court erred in denying his motion for judgment

as a matter of law or a new trial because the jury’s verdict was against the manifest

weight of the evidence. Without Dr. Cohen’s allegedly misleading and confusing

testimony, Ramirez asserts, the evidence overwhelmingly supported that Benlate

was the legal cause of Ramirez’s injuries. After reviewing the record and the

parties’ arguments on this issue, we can find no reason to disturb the jury’s verdict

and the final judgment entered for DuPont.

      A court should not grant a new trial on evidentiary grounds unless, at a

minimum, the verdict is against the great weight of the evidence. Lamonica, 711

F.3d at 1312-13. To be entitled to judgment as a matter of law, a party must show

that “‘a reasonable jury would not have a legally sufficient basis to find’ for the

nonmoving party on a controlling issue.” Id. at 1312 (quoting Fed. R. Civ. P.

50(a)(1)). We will reverse the denial of a motion for judgment as a matter of law

only if the facts and inferences, construed in the light most favorable to the

nonmoving party, show that reasonable people could not arrive at a contrary

verdict. Id. (citing Ash v. Tyson Foods, Inc., 664 F.3d 883, 892 (11th Cir. 2011)).

      Ramirez first argues that the verdict in the case was inconsistent because it

determined both that DuPont’s product, Benlate, was defective and unreasonably

dangerous to the user and that Benlate was not the cause of Ramirez’s injuries. We


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agree with the district court that, under Florida law, defect and causation are

separate elements of the causes of action at issue. See Cassisi v. Maytag Co., 396

So. 2d 1140, 1143 (Fla. Dist. Ct. App. 1981) (whether a product liability case is

based on strict liability or negligence, plaintiffs bear the burden of showing a (1)

defect in the product (2) that caused the injuries complained of, and (3) that the

defect existed at the time the product left the manufacturer). Even in a case where

the medical community recognizes that a chemical or agent causes the type of

harm the plaintiff alleges, the plaintiff still must show “individual causation”—that

the toxin in fact caused the plaintiff’s injury.      McClain, 401 F.3d at 1329.

Therefore, assuming that the jury found that Benlate was unreasonably dangerous

because it caused the same type of harm that Ramirez suffered, that finding would

not preclude the jury from also finding that Benlate did not, in fact, cause those

injuries in Ramirez. Accordingly, it was proper for the jury to evaluate these

elements separately, and it was not necessarily inconsistent for the jury to conclude

that the product was defective but that it was not the cause of Ramirez’s injuries.

      We also agree with the district court that the jury’s verdict was not contrary

to the great weight of the evidence in the case. The record supports that the jury

was presented with numerous plausible reasons for determining that Benlate did

not cause Ramirez’s cancer and tumors.         In addition to Dr. Cohen’s expert

testimony recounted above, the jury heard that when Ramirez sprayed his crops, he


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rode inside an enclosed, air-conditioned tractor cab, wore protective clothing when

mixing and spraying the chemicals, including goggles, a mask, a jumpsuit, gloves,

and boots, and otherwise had minimal direct exposure to the chemicals. The jury

also heard that Ramirez’s brother-in-law actually sprayed the Benlate that was the

focus of the case.       Additionally, the jury was presented with evidence

demonstrating that Ramirez had a history of diabetes, obesity, high cholesterol,

high blood pressure, and a family history of cancer and kidney disease. Many of

these medical conditions were noted by Dr. Cohen to be major risk factors for the

type of kidney cancer Ramirez had. Moreover, the jury heard that Ramirez had a

history of smoking cigarettes.

      We recognize that much of this evidence was disputed and that other

evidence presented during trial supports Ramirez’s contentions. But we cannot say

that the jury’s verdict was against the great weight of the evidence or that the

verdict resulted in a miscarriage of justice. Lamonica, 711 F.3d at 1312; see

Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.

2001); Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984).

Consequently, the court did not abuse its discretion in denying Ramirez’s motion

for a new trial. For these same reasons, we also find the court did not err in

concluding that Ramirez was not entitled to judgment as a matter of law.




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                                         IV.

      In sum, we conclude that the district court did not abuse its discretion in

refusing to strike Dr. Cohen’s expert testimony and that the jury verdict was not

against the great weight of the evidence. Consequently, we hold that the court did

not err in denying Ramirez’s post-trial motion for judgment as a matter of law or

alternatively for a new trial.

      AFFIRMED.




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