Eleventh Circuit Affirms Summary Judgment Against Plaintiffs in Products Liability Action Where Plaintiffs’ Expert Witnesses Failed Daubert Standard, Could Not Provide Alternative Expert-Witness on Causation

In Chapman v. Procter & Gamble Distributing, LLC, No. 12-14502 (11th Cir. Sept. 11, 2014), the Eleventh Circuit held that summary judgment was properly granted to the defendants in a products liability case. The plaintiffs could not show general and specific causation through expert testimony that would be admissible at trial due to deficiencies in the proposed experts’ scientific process and could offer no other expert testimony to meet their burden of proving general and specific causation since their alleged category of injuries was due to a substance the medical community has not generally recognized as toxic. Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1196 (11th Cir. 2010).

Marianne Chapman has myelopathy, a neurological condition that affects her body’s extremities. The Chapmans maintained that her symptoms were caused by zinc-induced copper-deficiency myelopathy (“CDM”) from her continued use over an eight-year period of Procter & Gamble’s product Fixodent, a denture adhesive cream. Specifically, they alleged that the zinc contained in the calcium-zinc compound included in the Fixodent blocked her body from absorbing copper, leading to her CDM.

This was the second appeal in the case. The first appeal occurred after the district court judge made a determination that the proposed expert-witness testimony to be proffered by the Chapmans at trial failed to meet the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The judge issued a final order with prejudice on behalf of the defendants so the plaintiffs could appeal his order rejecting her experts under Daubert. However, at the first appeal, the Chapmans argued that she could prove general and specific causation without the expert testimony excluded by Daubert. The judge accepted an order reopening the case and ruled in favor of Procter & Gamble’s motion for summary judgment determining the Chapmans could not prove general and specific causation through alternative expert-witness testimony. The Chapmans appealed both decisions.

As to the Daubert issue, the Eleventh Circuit upheld the district court’s determination that the expert-witness testimony to be proffered would not support a finding of general causation, finding that the Chapmans’ experts’ testimony showed a lack of knowledge of dose-response, epidemiological evidence, and background risk of the disease, all of which are indispensable in proving general causation. Further, the Eleventh Circuit found the district court judge did not abuse her discretion in precluding the Chapmans’ sole expert’s testimony regarding specific causation where the expert had not ruled out other potential causes for her symptoms nor had tested to see if a combination of other factors had led to her condition.

Additionally, the Eleventh Circuit found that summary judgment was properly granted to Procter & Gamble after determining that the Chapmans could not provide alternative expert testimony to sufficiently prove the causal link needed to establish liability. First, the Eleventh Circuit refused to accept testimony from an expert the plaintiffs would proffer whose area of expertise was in hematological disorders and not myelopathy. Second, the plaintiffs could not create an issue of fact as to causation by using the defendant’s experts because they failed to meet the procedural requirement to disclose witnesses. Fed. R. Civ. P. 26(a)(2). However, the Eleventh Circuit further noted that the testimony would not be able to help the plaintiffs establish causation even if admissible because the defendant’s experts had already determined a lack of causation.

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