Bourne v. E.I. Dupont De Nemours & Co. , 85 F. App'x 964 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDREW BOURNE, a minor by and 
through his parents, next friends
and natural guardians, Chris Bourne
and Maggie Bourne,
Plaintiff-Appellant,
v.
E. I. DUPONT DE NEMOURS &  No. 02-1469
COMPANY, d/b/a DuPont, a Foreign
Corporation,
Defendant-Appellee.
TRIAL LAWYERS FOR PUBLIC JUSTICE,
Amicus Curiae.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-97-90-2)
Argued: October 29, 2003
Decided: January 27, 2004
Before WIDENER, NIEMEYER and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: James Louis Ferraro, FERRARO & ASSOCIATES, P.A.,
Miami, Florida, for Appellant. Patrick William Lee, CROWELL &
2 BOURNE v. E. I. DUPONT
MORING, L.L.P., Washington, D.C., for Appellee. ON BRIEF:
Scott S. Segal, THE SEGAL LAW FIRM, Charleston, West Virginia,
for Appellant. William L. Anderson, Emma K. Burton, CROWELL
& MORING, L.L.P., Washington, D.C.; David B. Thomas, ALLEN,
GUTHRIE & MCHUGH, Charleston, West Virginia, for Appellee.
Arthur Bryant, TRIAL LAWYERS FOR PUBLIC JUSTICE, Oak-
land, California; Alexander A. Reinert, KOOB & MAGOOLAG-
HAN, New York, New York, for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
I.
Plaintiff Andrew Bourne ("Bourne"), a minor, is suing the manu-
facturer of a pesticide called "benlate" (active ingredient is "beno-
myl"), which he alleges caused his teratogenic birth defects. In the
district court, Bourne offered expert evidence from two credible and
qualified experts to establish both specific and general causation. The
district court, however, excluded the testimony of Bourne’s experts
finding it unreliable under Daubert and Rule 702 of the Federal Rules
of Evidence. After excluding Bourne’s only expert testimony on cau-
sation, the district court granted E.I. DUPONT DE NEMOURS AND
COMPANY, INC.’s, ("DuPont"), motion for summary judgment and
dismissed the case. We AFFIRM.
II.
Bourne by and through his parents, Christopher Bourne ("Mr.
Bourne") and Maggie Bourne ("Mrs. Bourne"), all residents of Essex,
England, filed this action in February of 1997 against DuPont alleging
that Mrs. Bourne’s exposure to the DuPont-manufactured agricultural
BOURNE v. E. I. DUPONT 3
fungicide Benlate, while pregnant with Bourne, caused him to be born
with severe birth defects.
Mrs. Bourne contends that she purchased Benlate from a local nur-
sery to use in her home garden in March of 1986. The Benlate was
packaged in small sachets roughly the size of an individual-serving
sugar packet. Each sachet contained 2.25 grams of Benlate powder,
approximately 53% of which was comprised of Benlate’s active
ingredient, the chemical benomyl. Also supplied with the Benlate
were separate sachets containing 3.0 grams of a surfactant (surface
active substance) called "Activex." According to the directions con-
tained in the package of Benlate, each sachet of Benlate powder was
to be mixed with a sachet of Activex along with one UK gallon of
water (approximately 4.5 liters) before application to plants.
Mrs. Bourne contends that she followed the instructions and mixed
a sachet of the Benlate and a sachet of the Activex in a gallon of
water. Mrs. Bourne says that she sprayed the entire gallon of the
Benlate-Activex-water mixture (hereinafter "Benlate mixture") on her
home garden every ten to twelve days from March through late-June,
1986. She testified at her deposition that she applied the Benlate mix-
ture liberally to her beans, strawberries, and roses, using a watering
can, and when the beans grew taller, using both a watering can and
a hand sprayer. She testified that it took her approximately 45
minutes-to-one-hour to mix and apply the Benlate mixture to her
plants.
Mrs. Bourne wore no gloves or protective face covering while
working with the Benlate. She testified that some Benlate powder got
on her hands when she prepared the Benlate mixture and that the Ben-
late mixture got on her hands and perhaps her legs as she stirred the
Benlate mixture. She further testified that when she applied the Ben-
late mixture to her plants, the solution would get on her hands, legs,
feet, and possibly her face. She bathed every day or every other day.
Mrs. Bourne became pregnant with Bourne on or about May 5,
1986. The child was born on January 27, 1987, with bilateral clinical
anophthalmia (the complete absence of eyes), hypogonadatropic
hypogonadism (a pituitary disorder resulting in this case in small stat-
ure and underdeveloped genitalia), and mental retardation. Bourne
4 BOURNE v. E. I. DUPONT
contends that his mother’s repeated exposure to Benlate during criti-
cal periods in his fetal development caused or contributed to his birth
defects.
III.
This court reviews the decision of a district court to admit or
exclude evidence for abuse of discretion. Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)(citing General Elec.
Co. v. Joiner, 522 U.S. 136, 139, 118 S.Ct. 512 (1997)). A district
court abuses its discretion if its conclusion is guided by erroneous
legal principles, see id. (citing Koon v. United States, 518 U.S. 81,
100, 116 S.Ct. 2035 (1996)), or rests upon a clearly erroneous factual
finding. United States v. Barber, 119 F.3d 276, 283 (4th Cir. 1997)
(en banc). Further, even if a district court applies the correct legal
principles to adequately supported facts, the discretion of the trial
court is not boundless and subject to automatic affirmance. West-
berry, supra, (citation omitted). This court is obliged to review the
record and reasons offered by the district court and to reverse only if
the "court has a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon
a weighing of the relevant factors." Id.IV.
The introduction of expert opinion testimony is governed by Fed-
eral Rule of Evidence 702, which provides, in pertinent part:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert . . . may
testify thereto in the form of an opinion or otherwise.
FED. R. EVID. 702 (West 2002).
Expert testimony is admissible under Rule 702, then, if it concerns
(1) scientific, technical, or other specialized knowledge that (2) will
aid the jury or other trier of fact to understand or resolve a fact at
issue. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592
BOURNE v. E. I. DUPONT 5
(1993). The first prong of this inquiry necessitates an examination of
whether the reasoning or methodology underlying the expert’s prof-
fered opinion is reliable—that is, whether it is supported by adequate
validation to render it trustworthy. Westberry, 178 F.3d at 261 (citing
Daubert, 509 U.S. at 590). The focus of the first prong is therefore
on the issue of reliability. The second prong of the inquiry requires
an analysis of whether the opinion is relevant to the facts at issue. Id.(citing Daubert, 509 U.S. at 591-92). The focus of the second prong
has, thus, been described as "fit."
Ultimately, an expert’s testimony is admissible under Rule 702 if
it "rests on a reliable foundation and is relevant." Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (internal quotation marks
omitted). The district court’s role in considering the admissibility of
expert testimony is that of a "gate-keeper" whose prime task is to
assess whether the proffered evidence is sufficiently reliable and rele-
vant. See id. at 1174. As the gate-keeper, the district court’s inquiry
is "a flexible one" focusing on the "principles and methodology"
employed by the expert, not on the conclusions reached. Daubert, 509
U.S. at 594-95 (emphasis added). In making its initial determination
of whether proffered testimony is sufficiently reliable, the court has
broad latitude to consider whatever factors bearing on validity that the
court finds to be useful; the particular factors will, however, depend
upon the unique circumstances of the expert testimony involved.
Kumho Tire Co., 526 U.S. at 149-50.
As the gate-keeper, the court must remain conscious of two guid-
ing, and sometimes competing, principles. Westberry, 178 F.3d at
261. On the one hand, the court should be mindful that Rule 702 was
intended to liberalize the introduction of relevant expert evidence. Id.(citing Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir.
1996)). Thus, the court need not determine that the expert’s proffer
is irrefutable or certainly correct. Id. In liberalizing the standard for
admission, Daubert reminds us that, as with all other admissible evi-
dence, expert testimony is subject to being tested by "[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof." Daubert, 509 U.S. at 596. On the
other hand, Daubert cautions that the district court must recognize
that due to the difficulty of evaluating their testimony, expert wit-
nesses have the potential to "be both powerful and quite misleading."
6 BOURNE v. E. I. DUPONT
Id. at 595 (internal quotation marks omitted). Where the expert prof-
fer has a greater potential to mislead than to enlighten, that evidence
may properly be excluded. Westberry (citing United States v. Dorsey,
45 F.3d 809, 815-16 (4th Cir. 1995)).
V.
The district court’s well-reasoned opinion properly balances the
two guiding, and sometimes competing, principles underlying the
Daubert analysis. Westberry, 178 F.3d at 261. When excluding the
proferred testimony, the district court properly exercised its "gate-
keeper" function by focusing on the methodology employed by the
experts rather than the conclusions they reached. Daubert, 509 U.S.
at 594-95. Thus, we can not say that the district court abused its dis-
cretion. On the reasoning stated by the district court, as reported at
Bourne v. E.I. DuPont De Nemours & Company, Inc., 189 F.Supp.2d
482 (S.D.W. Va. 2002), we therefore AFFIRM.
AFFIRMED