Rhonda Williams v. Mosaic Fertilizer, LLC , 889 F.3d 1239 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10894
________________________
D.C. Docket No. 8:14-cv-01748-MSS-TGW
RHONDA WILLIAMS,
Plaintiff-Appellant,
versus
MOSAIC FERTILIZER, LLC,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 14, 2018)
Before TJOFLAT and ROSENBAUM, Circuit Judges, and UNGARO, * District
Judge.
TJOFLAT, Circuit Judge:
In this toxic tort suit, Rhonda Williams appeals the District Court’s grant of
summary judgment against her and in favor of Mosaic Fertilizer, LLC (“Mosaic”).
*
Honorable Ursula Ungaro, United States District Judge for the Southern District of
Florida, sitting by designation.
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Ms. Williams alleged that toxic substances emitted from a factory operated by
Mosaic caused or exacerbated various medical conditions from which she suffers,
including pulmonary hypertension, obstructive pulmonary disease, and other lung
and non-lung-related conditions. The District Court, acting pursuant to Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S. Ct. 2786 (1993), excluded the opinions of her proffered expert
witness, Dr. Franklin Mink. Dr. Mink’s opinions were Ms. Williams’ only
evidence as to general and specific causation. Therefore, upon excluding Dr.
Mink’s opinions, the Court granted Mosaic’s motion for summary judgment with
respect to all causes of action requiring a showing of causation. The District Court
also excluded Ms. Williams’ testimony about the value and salability of her home,
and, in the absence of other evidence showing that the value of her home was
diminished by Mosaic’s alleged contamination of it, granted summary judgment in
favor of Mosaic as to the remaining cause of action.
After careful review of the record, and with the benefit of oral argument, we
affirm.
I.
Ms. Williams was born in 1967 and has lived her entire life at the same
residence in Tampa, Florida. The home, located in the Progress Village
neighborhood, is approximately three miles from Mosaic’s Riverview plant. She
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alleged that she suffers from G6PD associated pulmonary hypertension, asthma-
related restrictive pulmonary function, obstructive pulmonary disease, airway
remodeling, lower lung scarring, allergic reactions, side effects from therapeutic
treatments for her lung disorders, extreme fatigue, intense abdominal pain, and
diabetes. She alleged that chemicals emitted from Mosaic’s facility caused,
contributed to, or exacerbated these conditions.
According to Ms. Williams, Mosaic’s operations in and around the
Riverview plant involve the production and handling of a number of chemicals,
including sulfuric acid, phosphoric acid, fluoride, and ammoniate phosphates. She
averred that Mosaic’s production of these substances produces emissions, in the
form of dust and particulates, of toxic substances that permeate the ambient air in
and around her home and community. Some of these include various types of
particulate matter, arsenic, cadmium, chromium, lead, manganese, nickel,
phosphorous, and zinc.
In the past, the U.S. Environmental Protection Agency (“EPA”) and the
Hillsborough County Environmental Protection Commission have promulgated
data taken from monitoring stations at or near the Riverview plant showing that
sulfur dioxide levels in the ambient air at those stations exceeded the National
Ambient Air Quality Standard (“NAAQS”) of 75 parts per billion. Additionally,
Hillsborough County at large has been found in violation of the NAAQS standard,
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and the ambient air at a monitoring station at the Riverview plant has on multiple
occasions been found in violation of Florida’s more lenient standard of 100 parts
per billion. In addition to these sulfur dioxide emissions, monitoring data at a
testing site located near the Riverview facility and Ms. Williams’ neighborhood
showed, on at least one occasion, that the concentration of PM10 respirable
particulates, a respiratory irritant, exceeded the national standard of 150
micrograms based on a one-hour average.
Ms. Williams alleged six causes of action under Florida law in separate
counts: negligence, gross negligence, strict liability, strict liability failure to warn,
strict liability for “prohibited discharge” of pollutants, and medical monitoring and
environmental testing. 1 To establish general and specific causation, she turned to
Dr. Mink. Dr. Mink, an experienced toxicologist, prepared and furnished a
summary of his “preliminary expert opinions.”
The report contained sixteen pages of analysis, including a description of
Ms. Williams’ medical background, information on G6PD deficiency, and a set of
“preliminary expert opinions” reached “with a reasonable degree of scientific
certainty.” Those opinions were:
1) Rhonda Williams has been exposed to significant quantities of
regulated pollutants and hazardous materials from both direct and
1
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. Mosaic removed
the action from Florida state court to the Middle District of Florida in accordance with 28 U.S.C.
§§ 1332, 1441, and 1446.
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fugitive sources as a result of Mosaic’s operations including
phosphogypsum mining, processing, storage, transportation and waste
handling operations over her lifetime residence in Prospect Village,
Florida primarily through inhalation and dermal exposures.
2) Rhonda Williams has developed significant adverse health effects
as a result of these hazardous exposures including G6PD associated
pulmonary hypertension and obstructive pulmonary disease resulting
in a diminished quality of life and potentially reduced life span.
3) Rhonda Williams has developed significant adverse health effects
as a result of secondary effects from therapeutic agents used to treat
her diseases/symptoms resulting from these exposures further
diminishing her quality of life and threatening her long-term physical
and mental wellbeing.
At the end of the analysis section of the report, Dr. Mink listed fifty-eight
references. These consisted of various empirical studies, website references, and
regulatory documents. Within the body of the analysis, he cited another eighteen
sources. None were pin-cited or otherwise annotated to show which portions
supported each conclusion.
After Dr. Mink submitted his preliminary report, Mosaic deposed him.
After the deposition, Mosaic moved to exclude Dr. Mink’s testimony under
Federal Rule of Evidence 702 and Daubert. Mosaic also moved for summary
judgment as to all of Ms. Williams’ claims. Ms. Williams filed responses in
opposition. Without conducting a Daubert hearing, the District Court granted
Mosaic’s motion to exclude Dr. Mink’s opinion testimony. The Court explained
its decision thusly:
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[T]he Court concludes that Dr. Mink’s expert report and proposed
testimony cannot survive a Daubert challenge. Critically, Dr. Mink
has neglected the hallmark of the science of toxic torts—the dose
response relationship. In and of itself, this is a sufficient basis for
excluding his testimony. He also unjustifiably relies on regulatory
standards to determine dose, infers facts from studies that contradict
his conclusions, fails to consider the background risk for Plaintiff’s
illnesses, fails to rule out alternative potential causes of Plaintiff’s
illnesses, and renders speculative and conclusory opinions about
Plaintiff’s exposure to Mosaic’s emissions. All in all, it is clear that
Dr. Mink has failed to adhere to the methodology expected of
toxicologists in toxic tort cases, and he has not demonstrated a reliable
basis for his opinions.
In its order granting the motion, the Court comprehensively analyzed Dr.
Mink’s report and methodology, identifying and explaining its primary concerns
and others. Because Dr. Mink was Ms. Williams’ sole source of causation
evidence, the Court, in the same order, granted Mosaic’s motion for summary
judgment as to all claims requiring a showing of causation.
When the dust settled, Ms. Williams had one remaining claim: her
“prohibited discharge” claim. This claim was brought under Section 376.313 of
the Florida Statutes, which confers a private right of action on citizens who suffer
damage from a discharge of materials in violation of Florida’s environmental
standards. For this claim, Ms. Williams alleged that the pollutants and dust from
the Riverview plant diminished the value of her home to the point where it was
unsellable. Ms. Williams planned to testify on her own behalf as to the value of
her home. According to her responses to Mosaic’s interrogatories, Ms. Williams
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believed and planned to testify that “the property has no present value as any sale
would require the disclosure of the toxins found in and around the home and
neighborhood, . . . which came directly from Mosaic Fertilizer.”
As the case proceeded towards trial, Mosaic moved to exclude Ms.
Williams’ valuation testimony, arguing that such testimony was beyond her
expertise as a lay witness, irrelevant, and substantially more prejudicial than
probative because it called for heavy speculation and conjecture. The District
Court granted Mosaic’s motion. Upon consideration of her discovery responses
and prior testimony, it found that Ms. Williams’ testimony “lack[ed] foundation
and [wa]s purely speculative.” Then, in the same order, the District Court granted
summary judgment for Mosaic sua sponte as to the remaining claim. The Court
observed that Ms. Williams “was on notice that she was required to come forth
with all her evidence regarding the damages element of the Section 376.313
claim,” yet failed to produce anything more than her own inadmissible testimony.
Thus, the Court found that summary judgment was warranted as to her “prohibited
discharge” claim on account of her failure to prove any damages resulting from the
discharge. The Court therefore entered judgment in favor of Mosaic. Ms.
Williams timely appealed.
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II.
We review the District Court’s grant of summary judgment de novo. Doe v.
Sch. Bd., 604 F.3d 1248, 1253 (11th Cir. 2010). We begin with the exclusion of
Dr. Mink’s opinion testimony. Federal Rule of Evidence 702 makes expert
opinion testimony admissible only “if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of
the case.” As interpreted by the Supreme Court in Daubert, this requires the trial
court “to act as a gatekeeper to insure that speculative and unreliable opinions do
not reach the jury.” McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1237 (11th
Cir. 2005). To properly serve as a gatekeeper, the trial court must perform “a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Daubert, 509 U.S. at 593–94, 113
S.Ct. at 2796. When doing so, “the court must consider the testimony with the
understanding that the burden of establishing qualification, reliability, and
helpfulness rests on the proponent of the expert opinion.” McClain, 401 F.3d at
1238 (quotations omitted) (alterations omitted) (quoting United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004)).
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“The trial judge must have considerable leeway in deciding in a particular
case how to go about determining whether particular expert testimony is reliable”
under Daubert. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct.
1167, 1176 (1999). Hence, we review a district court’s Daubert rulings for abuse
of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 517
(1997). We will affirm unless the court “has made a clear error of judgment, or
has applied an incorrect legal standard.” Piamba Cortes v. Am. Airlines, Inc., 177
F.3d 1272, 1306 (11th Cir. 1999) (quotations omitted).
Here, the District Court did not abuse its discretion in excluding Dr. Mink’s
opinions. The Court comprehensively analyzed Dr. Mink’s report and deposition
testimony, carefully reviewed the literature upon which he relied in forming his
causation opinions, and determined that his methodology was undermined by
multiple defects. 2 We find no error in the Court’s analysis and no need to discuss
2
Ms. Williams argues that the District Court abused its discretion in requiring Dr. Mink
to demonstrate both general and specific causation, as opposed to just specific causation. This
Court has delineated two categories of toxic tort cases: “those cases in which the medical
community generally recognizes the toxicity of the drug or chemical at issue,” and “those cases
in which the medical community does not generally recognize the agent as both toxic and
causing the injury the plaintiff alleges.” McClain, 401 F.3d at 1239. In the former cases, “[t]he
court need not undertake an extensive Daubert analysis on the general toxicity question.” Id. In
the latter, “the Daubert analysis covers not only the expert’s methodology for the plaintiff-
specific questions about individual causation but also the general question of whether the drug or
chemical can cause the harm plaintiff alleges.” Id. (emphasis in original).
In Ms. Williams’ view, the scientific sources she and Dr. Mink cite demonstrate that it is
generally accepted in the scientific community that the toxins emitted by Mosaic’s facility
“cause the exact type of harm alleged by Ms. Williams.” The District Court treated the toxicity
of the substances as not generally accepted because it found that “Plaintiff has failed to offer any
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every aspect of its comprehensive assessment anew. However, three of the most
significant problems with Dr. Mink’s methodology are illustrative: first, his failure
to properly assess dose-response with regard to Ms. Williams; second, his failure
to meaningfully rule out other potential causes of Ms. Williams’ medical
conditions; and third, his failure to account for the background risk of her
conditions.
With respect to dose-response, we have explained the importance of the
dose-response assessment in these sorts of cases before. “When analyzing an
expert’s methodology in toxic tort cases, the court should pay careful attention to
the expert’s testimony about the dose-response relationship.” McClain, 401 F.3d
at 1241. This attention is due because dose-response is “the hallmark of basic
toxicology.” Id. at 1242. Stripped to its bare essentials, a dose-response
assessment estimates scientifically “the dose or level of exposure at which [the
substance at issue] causes harm.” Id. at 1241.
evidence of general acceptance within the medical community that sulfur dioxide and the other
constituents from the Mosaic emissions cause the illnesses from which she claims she suffers.”
We need not and do not decide this question. Setting general causation aside, to establish
specific causation, Dr. Mink would still have to reliably calculate whether Ms. Williams was
“exposed to enough of the toxin to cause the alleged injury,” McClain, 401 F.3d at 1239, which
he could have done only after reliably calculating how much exposure would have adversely
affected her. In other words, under either category, he still needed to perform or rely upon a
methodologically sound dose-response assessment specifically relevant to Ms. Williams. As
discussed, his dose-response analysis was deeply flawed. See infra. Thus, no matter whether the
case was treated as a category one case or a category two case, the District Court’s exclusion of
his opinion testimony was not an abuse of discretion.
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Here, Dr. Mink conceded he never conducted an independent dose
calculation specific to Ms. Williams. Instead, he relied on two academic studies
measuring the ambient air concentration of pollutants in the area in which Ms.
Williams lived to estimate the dose she received and on the EPA’s NAAQS
regulatory standards to establish the dose threshold above which Ms. Williams’
conditions would likely result from her exposure. As the District Court correctly
observed, his reliance on these sources was methodologically problematic in
multiple respects. Among the most glaring problems was the fact that both
academic studies he relied upon directly contradicted his causation opinions. For
example, one study concluded that “phosphate fertilizer plants make minor
contribution to the ambient levels of HAP metals compared to other sources for the
general population in the Tampa Bay area,” and that the air concentration of the
various pollutants studied fell hundreds of times below levels that would present
health risks to the public. Hsing-Wang Li, et al., Impacts of Hazardous Air
Pollutants Emitted from Phosphate Fertilizer Production Plants on Their Ambient
Concentration Levels in the Tampa Bay Area, 8 Air Qual. Atmos. Health 453, 453,
464 (2015).
This cuts directly against his opinion that Mosaic’s emissions adversely
affected Ms. Williams. And although Ms. Williams argues that Dr. Mink relied on
the studies’ underlying data while disagreeing with their ultimate conclusions, Dr.
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Mink and Ms. Williams never clearly explained why Dr. Mink reached a different
conclusion with regard to Mosaic’s contribution to pollution in Ms. Williams’
community or why his conclusion was correct and the authors’ incorrect until after
the District Court ruled on the admissibility of his testimony. Thus, he failed to
squarely present the basis for his disagreements to the District Court until after the
fact. See Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1341 (11th Cir. 2010) (holding
the district court did not abuse its discretion in excluding expert testimony, when
the expert “had ample opportunity to identify all of the bases for his conclusions
and to explain his methodology in reaching those conclusions” yet failed to do so).
Moreover, assuming for the sake of argument that Dr. Mink’s dose estimates
were methodologically sound, he failed to demonstrate a scientific basis for
concluding that those exposure levels would likely produce, contribute to, or
exacerbate Ms. Williams’ conditions. For example, he estimated that Ms.
Williams was exposed to sulfur dioxide at a long-term concentration rate
exceeding 75 parts per billion (though he never reached a more specific number
than this), and, based on her purported heightened sensitivity to exposure and the
NAAQS standard’s calculation to protect sensitive members of the population,
assumed that exposure at or above this level was likely to cause her conditions. He
based this sweeping assumption on the fact that the 75 parts per billion number is
the primary emissions standard set by the EPA for sulfur dioxide in its NAAQS
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standard. However, this Court has previously explained the potential
methodological perils of relying, at face value, on regulatory emissions levels to
establish causation. See McClain, 401 F.3d at 1249 (observing that face-value
reliance on regulatory dose standards raises a “subtle methodological issue”).
The biggest problem stems from the potential difference in purpose between
regulatory standards and toxicological dose-response calculations: regulatory
standards often build in considerable cushion in order to account for the most
sensitive members of the population and prophylactically protect the public (in
other words, they are protective), while dose-response calculations aim to identify
the exposure levels that actually cause harm (in other words, they are predictive).
See id. at 1249–50 (explaining the different calculations and burdens of proof
employed by regulatory agencies in setting exposure standards for the general
public, as compared to those employed by toxicologists in calculating dose-
response).
But Ms. Williams argues that Dr. Mink’s facial reliance on NAAQS
standards in this case is different, because those standards are predictive. She
contends that the EPA’s assessments reveal that “exposure to 75 ppb of [sulfur
dioxide] causes (not may cause or can cause, but actually does cause) respiratory
morbidity,” and that the standards result from “dose-response assessments based
on human studies.” (Emphasis in original). In other words, relevant dose-response
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assessments are built into the standard. However, the EPA’s own regulations
require the agency to establish NAAQS levels ensuring “protection of public health
with an adequate margin of safety,” even if this means setting emissions thresholds
at a level at which “the risk is not precisely identified as to nature or degree.” 75
Fed. Reg. 35520–01 at *35521 (June 22, 2010). Further, Dr. Mink stated that he
relied upon dose-response calculations included in the EPA’s Integration Risk
Information System (“IRIS”), which the EPA relies upon in setting NAAQS
standards. But the EPA has expressly stated that the dose-response assessments in
IRIS are not suited to predicting the incidence of exposure-caused disease in
humans:
In general, risk values, such as those on IRIS, cannot be used to
predict the actual incidence of human disease or the type of effects
chemical exposures may have on humans. This is due to the
numerous uncertainties involved in risk assessment, including those
associated with extrapolations from animal data to humans and from
high experimental doses to lower environmental exposures. The
organs affected and the types of adverse effects resulting from
chemical exposure may differ between study animals and humans. In
addition, many factors besides exposure to a chemical influence the
occurrence and extent of human disease.
53 Fed. Reg. 20162–02 at *20163 (June 2, 1988). It is for precisely these reasons
that we have cautioned against facial reliance on regulatory standards as a
substitute for scientifically rigorous dose-response assessments. And while it is
true that the EPA’s studies “led to the conclusion that there is a causal relationship
between respiratory morbidity and short-term exposure to SO2,” the existence of a
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generalized “causal relationship” was not the operative issue. What mattered was
whether the EPA’s data provided a reasonably specific calculation as to the
exposure amounts required to cause Ms. Williams’ conditions upon which Dr.
Mink could reasonably rely in forming his opinions.
Though Ms. Williams alleged that, on account of her G6PD, she is more
sensitive to exposure than the average member of the general public, Dr. Mink
never attempted to quantify how much more sensitive she is. As the District Court
observed, at the time it made its ruling, he did “not cite with specificity which
studies and peer-reviewed literature demonstrate the increased sensitivity of
individuals with G6PD. Consequently, the Court [could] not evaluate those
sources and determine whether they are based on reliable methodologies or
otherwise support his opinions.” Without this, he could not rely on NAAQS
standards, because he never adequately established whether her sensitivity to
exposure placed her within the class of persons who would likely suffer from
exposure at the ranges he estimated, let alone whether the standards were
predictive or protective with regard to her.
To be clear, we have never required an expert to “give precise numbers
about a dose-response relationship,” McClain, 401 F.3d at 1241 n.6, and we do not
do so here. But we do require an expert to lay a “reliable groundwork for
determining the dose-response relationship.” Id. at 1241. Here, Ms. Williams bore
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the burden of demonstrating to the District Court that Dr. Mink’s facial reliance on
NAAQS standards was methodologically sound. In light of their protective nature
and the EPA’s express warnings that those standards—and the IRIS assessments
upon which they were formulated—are unreliable predictors of conditions in
humans, we are not persuaded that the District Court erred in determining that Ms.
Williams failed to meet that burden. 3
Further, the District Court correctly observed that Dr. Mink’s report suffered
from methodological errors related to the cause of Ms. Williams’ conditions. Dr.
Mink failed to meaningfully rule out other potential causes of Ms. Williams’
3
We further note that both in the District Court and before this Court, when put to the
task of identifying the bases of Dr. Mink’s dose-response conclusions with specificity, Dr. Mink
and Ms. Williams obfuscated. We granted leave for counsel to file a one-page letter brief with
citations in the record to authorities relied upon by Dr. Mink which employed predictive, rather
than protective, analyses. In response, we received an eleven-page, shotgun-style brief with
citations to dozens of regulatory documents comprising hundreds of pages. Most had nothing to
do with studies—predictive or protective—at all, many included only estimated “fatal” doses of
the various substances discussed (and nothing about doses that could lead to Ms. Williams’
conditions), many of the studies were concerned solely with the carcinogenic effects of those
substances (Ms. Williams does not have cancer and the carcinogenicity of the substances is not
otherwise at issue in this case), many were not in the record below, and none were pin-cited.
Dr. Mink’s expert report submitted in the District Court fared no better. At the end of the
analysis section of his report, Dr. Mink listed 58 references. These consisted of various
empirical studies, website references, and regulatory documents. Within the body of the
analysis, he cited another 18 sources. Included with none of those 76 sources were endnotes, pin
cites, or any other explanations as to what information Dr. Mink gained from those references or
what sources supported what conclusions. And certainly nothing pointed the District Court to
the underlying dose-response assessments Dr. Mink purportedly relied upon. It was only after
the District Court excluded his testimony that Dr. Mink filed a more concise statement
concerning the bases of his conclusions. Thus, to the extent the District Court was limited in its
assessment of Dr. Mink’s methodology by his and Ms. Williams’ obfuscation in explaining the
bases of his conclusions, it did not err in considering only that which was squarely before it. See
Kilpatrick, 613 F.3d at 1341 (holding the district court did not abuse its discretion in excluding
expert testimony, when the expert “had ample opportunity to identify all of the bases for his
conclusions and to explain his methodology in reaching those conclusions” yet failed to do so).
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conditions and symptoms. Indeed, one of the studies heavily relied upon by Dr.
Mink determined that environmental factors and emissions by other facilities
caused the vast majority of pollution in the area in which Ms. Williams lived. Li,
supra, at 453. Yet Dr. Mink never addressed how or even if he ruled out those
other potential contributors in reaching his conclusion that Mosaic’s facility caused
Ms. Williams’ alleged harms. Nor did he, in his report or his deposition, eliminate
or even address factors not related to air quality, such as Ms. Williams’ obesity,
allergies, lifestyle, exposure to secondhand smoke, or possible genetic
predisposition. When asked about how he eliminated other potential causes of Ms.
Williams’ conditions, Dr. Mink stated:
Oh, I think we eliminated causes based on their probability. I mean,
they were so low in comparison that—that we can eliminate them.
Are they totally nonexistent, absolutely not, and I think I testified to
that earlier.
However, Dr. Mink never provided the District Court or this Court with any
probability studies regarding those potential causes, and his expert report never
referenced those probabilities.
Thus, although he made passing references to the purported “low”
probability of those other causes, Dr. Mink never provided the District Court with
any scientific basis upon which he relied in concluding that the likelihood that
various other potential factors caused Ms. Williams’ conditions was low enough to
reasonably rule them out. The law does not require the District Court to take him
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at his word. See Joiner, 522 U.S. at 146 (“[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert.”).4
Nor does it appear Dr. Mink meaningfully accounted for the background risk
of Ms. Williams’ conditions. The background risk “is the risk a plaintiff and other
members of the general public have of suffering the disease or injury that plaintiff
alleges without exposure to the drug or chemical in question.” McClain, 401 F.3d
at 1243 (emphasis in original). When asked during his deposition, Dr. Mink did
not demonstrate specific knowledge of the general prevalence of Ms. Williams’
various conditions:
Q: What is the prevalence of pulmonary hypertension in the
population, the general population?
A: I don’t recall. It’s not large.
Q: What is the prevalence of obstructive pulmonary disease in the
population?
A: I don’t recall specifically, but it’s significant.
These answers do not indicate serious consideration of the background risk. And
while his deposition alone may not authoritatively indicate that he failed to account
4
To the extent Ms. Williams argues that Dr. Mink could have better cited the specific
authorities in support of his opinions at a Daubert hearing, we conclude that the District Court
did not abuse its discretion in ruling on the admissibility of his opinion testimony without
conducting such a hearing. Dr. Mink filed his expert report and testified at a day-long
deposition, and Ms. Williams’ counsel had the opportunity to cite those authorities with greater
specificity in her response to Mosaic’s motion to exclude Dr. Mink’s testimony. Thus, Dr. Mink
and Ms. Williams had sufficient opportunity to present those bases to the Court before it decided
the question. This is true with regard to both his dose-response assessments and his assessments
regarding other potential causes.
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for it, he also failed to address background risk in his report or elsewhere. Thus,
the evidence before the District Court at the time it considered Mosaic’s Daubert
motion does not indicate he meaningfully accounted for background risk.
In conclusion, Dr. Mink failed to meaningfully address other potential
causes of Ms. Williams’ conditions or even the background risk of those
conditions. This fundamental methodological failure undermined the soundness of
his causation opinions, and the District Court was therefore right to exclude those
opinions as unsound.
III.
We review the District Court’s exclusion of lay opinion testimony pursuant
to the Federal Rules of Evidence for abuse of discretion. United States v. Jeri, 869
F.3d 1247, 1259 (11th Cir. 2017), cert. denied, 138 S. Ct. 529 (2017). Lay opinion
testimony must be “(a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701.
In general, “an owner of property is competent to testify regarding its
value.” Neff v. Kehoe, 708 F.2d 639, 644 (11th Cir. 1983). However, “where the
owner bases his estimation solely on speculative factors, the owner’s testimony
may be of such minimal probative force to warrant a judge’s refusal even to submit
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the issue to the jury.” Kestenbaum v. Falstaff Brewing Corp., 514 F.2d 690, 699
(5th Cir. 1975), modified on other grounds en banc, 575 F.2d 464 (5th Cir. 1978).5
The District Court did not abuse its discretion in excluding Ms. Williams’
lay valuation testimony. Opinions by lay witnesses must be derived from personal
knowledge or experience. See Fed. R. Evid. 701 Advisory Committee Notes, 2000
Amendments. Here, Ms. Williams does not allege she tried to sell her home or
spoke with an appraiser or real estate agent to ascertain its value. Indeed, she
concedes she did not. When asked by Mosaic in its interrogatories to provide “any
criteria, rationale, bases, or grounds” for calculating her valuation estimate of zero,
she stated:
Ms. Williams contends the property has no present value as any sale
would require the disclosure of the toxins found in and around the
home and neighborhood, as previously produced in this action, which
came directly from Mosaic Fertilizer. Ms. Williams does not believe
that a rational, educated person, who had knowledge of the presence
of the toxic emissions and/or their long-term health effects would
want to acquire residential property in her neighborhood; and that her
property is damaged by the stigma associated with the continual and
on-going exposure to Sulfur Dioxide, Arsenic, Cadmium, Chromium,
Barium, Radioactive isotopes and other hazardous air pollutants.
Under the law, a seller in Florida must disclose any facts to a potential
buyer that would affect the value of the property. Here, Ms. Williams
would be required to disclose the presence of Sulfur Dioxide,
Radioactive isotopes and other hazardous air pollutants found at her
property and in and around her neighborhood.
5
We have adopted as binding “the decisions of the United States Court of Appeals for the
Fifth Circuit, as that court existed on September 30, 1981, handed down by that court prior to
close of business on that date.” Bonner v. City of Prichard., 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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This is pure speculation. That a home is contaminated does not necessarily make it
valueless. In fact, Ms. Williams testified from her own knowledge that homes in
her neighborhood, including one on the same block as hers, had recently been sold.
This directly refuted her contention that the value of her home was zero. Thus,
despite the general rule that homeowners may testify as to the value of their homes,
Ms. Williams’ testimony was inadmissible because it would not have been based
on personal knowledge. The District Court therefore did not err in excluding her
testimony for lack of foundation.
Ms. Williams argues in the alternative that even if exclusion of her valuation
testimony was proper, she should have been allowed to present evidence of
“contamination damages,” including “destruction and remediation damages.” But
Ms. Williams did not allege any functional damage to her home or cognizable
economic losses resulting from the contamination of her home, such as repair
expenses. Instead, she sought “destruction damages (which is full value for
permanent damage caused by the contamination).” This is just another way of
stating that her home’s value was diminished as a result of pollutants from
Mosaic’s facility. Hence, her testimony would not have been any different under a
theory of “stigma damages” (the diminution in value of her home from having to
disclose the presence of contaminants in her neighborhood) or a theory of
“contamination damages” (the diminution in value of her home as a result of its
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actual contamination with pollutants). Therefore, the District Court committed no
error in excluding her testimony.
IV.
We accordingly affirm the District Court’s exclusion of Dr. Mink and Ms.
Williams’ opinion testimony and its subsequent grants of summary judgment in
favor of Mosaic.
AFFIRMED.
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