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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14502
________________________
D.C. Docket Nos. 1:09-md-02051-CMA; 9:09-cv-80625-CMA
MARIANNE CHAPMAN,
DANIEL CHAPMAN,
Plaintiffs - Appellants,
versus
THE PROCTER & GAMBLE DISTRIBUTING, LLC,
THE PROCTER & GAMBLE MANUFACTURING CO.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 11, 2014)
Before PRYOR, JORDAN and FAY, Circuit Judges.
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FAY, Circuit Judge:
Marianne and Daniel Chapman appeal summary judgment for The Proctor &
Gamble Distributing, LLC and The Proctor & Gamble Manufacturing Company
(collectively “P&G”) in their products liability case concerning Fixodent, a denture
adhesive. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Marianne Chapman suffers from myelopathy, a neurological condition or
spinal-cord disorder that affects the upper and lower extremities. She developed a
number of neurological symptoms from April 2006 through January 2009. 1 The
Chapmans maintain Marianne Chapman’s symptoms were caused by zinc-induced,
copper-deficiency myelopathy (“CDM”) from her use of two to four 68-gram tubes
of Fixodent denture adhesive each week for eight years. P&G counters that the
testimony of the Chapmans’ experts should not be admitted, because their
methodologies are unreliable and do not substantiate the conclusion that Fixodent
caused Marianne Chapman’s CDM.
1
These symptoms included loss of feeling in her hands and feet, a progressive gait ataxia that
caused her to trip when walking in the dark and subsequently confined her to bed, a burning pain
in her hands and feet requiring opiod management, blood dyscrasias with anemia and
neutropenia (low red and white blood-cell counts), and subacute bilateral asymmetric wrist and
finger drop in both hands, limiting her ability to extend her fingers and thumbs. In re Denture
Cream Prods. Liab. Litig., 795 F. Supp. 2d 1345, 1348 (S.D. Fla. 2011).
2
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While zinc is an essential element for human growth, it is not found
separately in nature but occurs in various compounds, such as zinc acetate and zinc
sulfate. In 1990, P&G reformulated Fixodent to include a calcium-zinc compound
to improve its adhesion. The calcium-zinc compound in Fixodent is less
bioavailable than other zinc compounds, like zinc acetate.2 A case report in 2008
hypothesized zinc in denture adhesives may lead to copper deficiency, which could
cause neurologic injury. S.P. Nations, et al., Denture Cream: An Unusual Source
of Excess Zinc, Leading to Hypocupremia and Neurologic Disease, 71 Neurology
639 (2008). Thereafter, various individuals filed lawsuits nationwide against
GlaxoSmithKline (“GSK”), manufacturer of Poligrip, and P&G, manufacturer of
Fixodent.
The Chapmans originally filed their case in Florida state court on April 1,
2009, against P&G, which removed it to federal court in the Southern District of
Florida on diversity jurisdiction.3 On June 9, 2009, the United States Judicial
Panel on Multidistrict Litigation (“MDL”) transferred these similar cases against
2
The zinc in Fixodent enters a user’s digestive tract, when food is chewed and swallowed. The
absorption of zinc occurs in the small intestine, where the Chapmans contend it blocks copper
assimilation into the body, resulting in CDM. Bioavailability refers to accessibility to metabolic
and physiological body processes, while dissociation references how a compound separates into
component parts under particular conditions.
3
The Chapmans’ Amended Complaint, filed on November 9, 2009, contains seven causes of
action, including state-law claims: (1) strict products liability, (2) negligence, (3) intentional
misrepresentation, (4) breach of express warranty, (5) implied warranty, (6) violation of the
Florida Deceptive and Unfair Trade Practices Act, Florida Statutes §§ 501.201, et seq., and (7)
loss of consortium. This appeal concerns only the products liability claim.
3
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GSK and P&G to Judge Cecilia M. Altonaga in the Southern District of Florida for
coordinated pretrial proceedings. In re Denture Cream Prods. Liab. Litig., No. 09-
2051-MD-Altonaga. Following the conclusion of pretrial proceedings, the
individual MDL plaintiffs had the right to transfer their cases back to their
respective district courts. Because this case was the only one filed in the Southern
District of Florida, it provided the judge with jurisdiction to proceed to trial.
The Chapmans sought to prove causation primarily through four expert
witnesses. 4 Dr. George J. Brewer, Dr. Joseph R. Landolph, and Dr. Ebbing
Lautenbach would have testified generally whether Fixodent could cause CDM.
Dr. Steven A. Greenberg would have testified Marianne Chapman’s myelopathy
specifically was caused by her use of Fixodent. P&G moved to exclude the
Chapmans’ expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786 (1993). Briefing, supplemental briefing, and a
hearing addressed the issues raised by P&G’s motions. On June 13, 2011, one
week before trial was to begin on June 20, 2011, the district judge issued a
comprehensive order granting P&G’s motions to exclude the Chapmans’ expert
testimony. In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d 1345 (S.D.
Fla. 2011).
4
P&G also sought to exclude the testimonies of three additional experts for the Chapmans: Dr.
Frederick Raffa, Dr. J. Anthony Von Fraunhofer, and Dr. Michael S. Wogalter.
4
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A. First Appeal
1. District Court
At the previously scheduled calendar call on June 14, 2011, the parties
discussed with the judge the best route to this court to decide whether the judge’s
Daubert order was correct—interlocutory appeal or summary judgment. P&G
argued the other MDL cases should be “stayed pending the appeals,” because “it
would make no sense for the parties to be litigating anything in those cases while
the issues that are set forth squarely in the Court’s order yesterday are addressed by
the 11th Circuit.” Hr’g Tr., June 14, 2011, at 6:3-10. The judge commented it
would be “futile” and “a waste of everyone’s resources” to have full briefing on
summary judgment “just so [the parties] could get to the 11th Circuit on the
correctness of [her] decision on the Daubert motions.” Id. at 7:8-12. Instead, the
judge suggested the parties “consent to an entry of judgment with the right to
appeal the adverse Daubert ruling.” Id. at 7:13-14.
On June 16, 2011, the judge held a scheduling conference to discuss further
the proper way to get her Daubert decision before this court. The judge recognized
“the problem is how do you get [the Daubert order] to the Appellate Court
[because] you can’t . . . appeal . . . a Daubert ruling. You need a final order.”
Hr’g Tr., June 16, 2011, at 6:21-23. She suggested “the way to do it is to have me
5
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enter judgment against [the Chapmans] with the understanding of the parties that
you are reserving your right to appeal . . . my adverse ruling on Daubert, but you
need a final order.” Id. at 7:5-8. Since both parties wanted the Daubert order
reviewed by this court, the judge ordered the parties to “present to [her] a proposed
order that contemplates” an appealable final judgment. Id. at 9:10-13.
On June 23, 2011, the parties submitted a Joint Stipulation of Dismissal with
Prejudice, agreeing to “1) the entry of judgment against [the Chapmans] on all
claims alleged against [P&G]; and, 2) the entry of dismissal with prejudice on all
[the Chapmans’] claims alleged against [P&G].” Jt. Stip. of Dismissal at 1-2.
The joint stipulation provided “the parties recognize that this stipulation is in the
best interest of all parties and judicial economy” and expressly reserved the
Chapmans’ right to appeal to this court. Id. at 2. In accordance with the joint
stipulation, the judge entered final judgment on June 24, 2011, and the Chapmans
timely appealed.
2. Court of Appeals
This court recognized “our jurisdiction ‘must be both (1) authorized by
statute and (2) within constitutional limits.’” Chapman v. Proctor & Gamble
Distrib., LLC, No. 11-13371 at 2 (11th Cir. Jan. 4, 2012) (per curiam) (quoting
OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1355 (11th Cir.
6
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2008)). While the district judge’s order was final under 28 U.S.C. § 1291, “to be
within constitutional limits,” it had to be “‘adverse as to the final judgment’ . . . to
satisfy the Article III case or controversy requirement.” Id. (quoting OFS Fitel,
549 F.3d at 1356). We noted “three ‘distinct factual ingredients that are critical to
the adverseness issue.’” Id. (quoting OFS Fitel, 549 F.3d at 1357). Those factual
requirements are: (1) the appealed order was “‘case-dispositive because it
foreclosed plaintiff from presenting the expert testimony required to prove [the
cause of action], which was a core element in all of its claims,’” (2) “plaintiff’s
attorney ‘candidly informed the district court of the impact of its sanctions ruling
on the plaintiff’s case,’” and (3) “‘importantly, the district court . . . agreed with
plaintiff’s counsel’s suggestion that the [appealed] ruling was case-dispositive.’”
Id. (alterations omitted) (quoting OFS Fitel, 549 F.3d at 1357, 1358).
We concluded the Chapmans did not meet the second and third OFS Fitel
requirements. Although the parties had informed the district judge her Daubert
order might be dispositive, the Chapmans “also argued that they could still muster
enough evidence to prove causation at trial even without the expert testimony,
specifically by presenting testimony from treating doctors.” Id. at 3. Not only did
the Chapmans fail “‘candidly’” to inform the judge of the consequence of the
Daubert order, but also they “disputed that it was dispositive.” Id. (quoting OFS
Fitel, 549 F.3d at 1357). Regarding the third requirement, we determined the
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district judge’s dismissal was not case-dispositive. It was unclear whether the
interlocutory appeal from the Daubert order excluding the Chapmans’ expert
witnesses was “the only basis for dismissal, or if the Chapmans could otherwise
have proceeded to trial and proved causation despite the exclusion, as they initially
conte[nd]ed.” Id. at 3-4. In addition, the Chapmans’ representation that it was
undisputed that the Daubert order was case-dispositive was belied by their
persistently “claiming that the order was not case-dispositive.” Id. at 4.
Accordingly, we dismissed the appeal of the Daubert order for lack of standing,
because the Chapmans were not adverse to the final judgment. Id.
B. Second Appeal
Following dismissal of the Chapmans’ first appeal by this court, the district
judge granted their motion to vacate the stipulated final judgment under Federal
Rule of Civil Procedure 60(b). P&G then moved for summary judgment, which
the Chapmans opposed, and P&G replied. Because the district judge had
determined none of the Chapmans’ proffered experts qualified as experts under
Daubert, P&G maintained the Chapmans could not use treating physicians as
experts at trial. Since these doctors had never been designated as experts, the
judge determined they were not qualified to testify regarding general or specific
causation of Marianne Chapman’s CDM. Accordingly, she granted P&G’s
8
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summary judgment motion and entered final judgment. The Chapmans appealed,
which is the case we now decide. We necessarily first must address the merits of
the district judge’s Daubert order, because it is incorporated by reference in the
Chapmans’ opposition to P&G’s summary judgment motion,5 and the parties’ first
appeal to this court was dismissed for lack of jurisdiction without addressing the
merits of the Daubert order.
II. DISCUSSION
A. Daubert Analysis
1. Distinguishing Daubert-Applicable Cases
For analyzing cases involving alleged toxic substances, we have delineated
two categories. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1239 (11th Cir.
2005). The first category consists of “cases in which the medical community
generally recognizes the toxicity of the [substance] at issue” to “caus[e] the injury
plaintiff alleges.” Id.; Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1196
(11th Cir. 2010). In this category are “toxins like asbestos, which causes
asbestosis and mesothelioma; silica, which causes silicosis; and cigarette smoke,
5
In their opposition to P&G’s summary judgment motion, the Chapmans stated: “Plaintiffs
explicitly reserve their right to appeal this Court’s June 13, 2011 decision and preserve all
arguments previously set forth in opposition to Defendants’ Daubert motions. All such
arguments are hereby incorporated herein by reference.” Chapmans’ Opp’n to P&G’s Summ. J.
Mot. at 7 n.11.
9
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which causes cancer.” McClain, 401 F.3d at 1239. For judicial economy, federal
courts need not consider expert opinions for diagnoses “medical doctors routinely
and widely recognize as true, like cigarette smoking causes lung cancer and heart
disease, too much alcohol causes cirrhosis of the liver, and . . . the ingestion of
sufficient amounts of arsenic causes death.” Id. at 1239 n.5. In cases where the
cause and effect or resulting diagnosis has been proved and accepted by the
medical community, federal judges “need not undertake an extensive Daubert
analysis on the general toxicity question.” 6 Id. at 1239.
In contrast, the second category contains cases, where the medical
community generally does not recognize the substance in question as being toxic
and having caused plaintiff’s alleged injury. Id. These cases require a two-part
Daubert analysis, comprised of (1) general causation, “whether the [substance] can
cause the harm plaintiff alleges,” id., and (2) specific causation, whether experts’
methodology determines the substance “caused the plaintiff’s specific injury,”
Hendrix, 609 F.3d at 1196 (citing McClain, 401 F.3d at 1239). For cases in
category two, a district judge “must assess the reliability of the expert’s opinion on
general, as well as specific, causation.” Id. (first emphasis added). The two
categories economize the time of a trial judge, who “does not need to waste time
6
The focus for cases in the first category is “individual causation to plaintiff”—“was plaintiff
exposed to the toxin, was plaintiff exposed to enough of the toxin to cause the alleged injury, and
did the toxin in fact cause the injury?” McClain, 401 F.3d at 1239.
10
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with a Daubert hearing ‘where the reliability of an expert’s methods is properly
taken for granted, and to require appropriate proceedings in the less usual or more
complex cases where cause for questioning the expert’s reliability arises,’”
McClain, 401 F.3d at 1239 n.5 (quoting Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152, 119 S. Ct. 1167, 1176 (1999)).
The Chapmans represent the district judge should have analyzed this case
under McClain category one, because there is a general consensus in the medical
community that ingestion of zinc causes CDM. They cite medical textbooks and
journals as well as their experts 7 and those of P&G, who have recognized an
association between excess zinc and copper deficiency. See Rider v. Sandoz
Pharm. Corp., 295 F.3d 1194, 1199 (11th Cir. 2002) (“[W]hile they may support
other proof of causation, case reports alone ordinarily cannot prove causation.”).
But they fail to show that the zinc compound in Fixodent is in McClain category
one of medically accepted, cause-and-effect toxins, such as asbestos causing
asbestosis and cigarette smoking causing lung cancer and heart disease. Id. at 1239
7
For example, the Chapmans quote from the report of their only expert unchallenged by P&G in
the Daubert proceedings, Dr. Joseph Prohaska, that “it is well understood in the scientific
community that excess zinc can result in low plasma copper.” Appellants’ Br. at 31 n.8 (citation,
internal quotation marks, and alteration omitted). The Chapmans, however, did not advance Dr.
Prohaska with their other seven proffered experts they argued could establish general and
specific causation, all of whom the district judge disqualified in her Daubert order. Moreover,
Dr. Prohaska was limited by his report to opining on “the hematological changes associated with
copper deficiency as well as the impact of zinc on copper status.” Prohaska Report at 2.
11
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& n.5. P&G notes: “Millions of consumers have regularly used Fixodent for
decades without complaint. Nevertheless, [the Chapmans] claim that Fixodent is
toxic because it contains zinc in a calcium-zinc compound—even though zinc is
undeniably an essential nutrient the body must have to function properly.”
Appellees’ Br. at 1; see Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245, 1257
(11th Cir. 2010) (per curiam) (recognizing in a products liability case that two-
thirds of patients who took an antipsychotic prescription drug, Seroquel, did not
experience weight gain, which plaintiff alleged was the cause of her diabetes).
Therefore, the district judge properly determined that Fixodent, containing zinc,
was in McClain category two and conducted the requisite Daubert review of
proffered expert testimony, which included a thorough hearing and consideration
of “thousands of pages of filings by the parties, including the experts’ reports and
depositions, and scientific literature.” In re Denture Cream Prods. Liab. Litig.,
795 F. Supp. 2d at 1348.
2. Daubert Review for Reliability of Expert Testimony
Under Federal Rule of Evidence 702, expert testimony is admissible if (1)
the expert is qualified to testify regarding the subject of the testimony; (2) the
expert’s methodology is “sufficiently reliable as determined by the sort of inquiry
mandated in Daubert”; and (3) the expert’s testimony will assist the trier of fact in
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understanding the evidence or determining a fact at issue. United States v. Frazier,
387 F.3d 1244, 1260 (11th Cir. 2004) (en banc) (citation and internal quotation
marks omitted). In considering the proffered expert testimony, a trial judge is
mindful “[t]he burden of establishing qualification, reliability, and helpfulness rests
on the proponent of the expert opinion.” Id. To determine the reliability and
relevance of proffered expert testimony, the judge performs a “gatekeeping”
function. Daubert, 509 U.S. at 589 n.7, 113 S. Ct. at 2795 n.7; see Quiet Tech.
DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1342 (11th Cir. 2003)
(recognizing “one may be considered an expert but still offer unreliable
testimony”). We review a district judge’s exclusion of expert testimony only for
abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-43, 118 S. Ct.
512, 517 (1997). This “considerable leeway” accorded to the district judge,
Kumho Tire Co., 526 U.S. at 152, 119 S. Ct. at 1176, requires us to defer to the
judge’s decision on expert testimony, “unless it is manifestly erroneous.” Rink v.
Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citation and internal
quotation marks omitted). This deferential abuse-of-discretion standard is applied
stringently, even if a decision on expert testimony is “outcome determinative.” 8
8
We have “explain[ed] why it is difficult to persuade a court of appeals to reverse a district
court’s judgment on Daubert grounds[,] . . . where the abuse of discretion standard thrives.”
United States v. Brown, 415 F.3d 1257, 1264, 1266 (11th Cir. 2005). “[A] district court is more
familiar with the procedural and factual details and is in a better position to decide Daubert
issues,” which “are not precisely calibrated and must be applied in case-specific evidentiary
circumstances that often defy generalization.” Id. at 1266. In “applying [the] abuse of discretion
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Gen. Elec. Co., 522 U.S. at 142-43, 118 S. Ct. at 517; United States v. Brown, 415
F.3d 1257, 1266 (11th Cir. 2005).
The Daubert Court identified four factors to guide district judges in
assessing the reliability of an individual expert’s methodology:
(1) whether the expert’s methodology has been tested or is capable of
being tested; (2) whether the theory or technique used by the expert
has been subjected to peer review and publication; (3) whether there is
a known or potential error rate of the methodology; and (4) whether
the technique has been generally accepted in the relevant scientific
community.
United Fire & Cas. Co. v. Whirlpool Corp., 704 F.3d 1338, 1341 (11th Cir. 2013)
(per curiam) (citing Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2796-97). These
factors are not “a definitive checklist or test,” Daubert, 509 U.S. at 593, 113 S. Ct.
at 2796, and Daubert considerations are “applied in case-specific evidentiary
circumstances,” Brown, 415 F.3d at 1266. “[T]he trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co., 526 U.S. at 152,
119 S. Ct. at 1176.
standard, we must affirm unless we at least determine that the district court has made a clear
error of judgment, or has applied an incorrect legal standard.” McClain, 401 F.3d at 1238
(alteration in original) (citation and internal quotation marks omitted). Clearly, the abuse-of-
discretion standard applied in Daubert cases is specialized and specifically addresses the narrow
issue of the admission of reliable expert trial testimony rather than the general abuse-of-
discretion standard implicated in other civil and criminal cases, which makes them not
comparable.
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While the inquiry is “a flexible one,” the focus “must be solely on principles
and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at
594-95, 113 S. Ct. at 2797 (emphasis added); see McDowell v. Brown, 392 F.3d
1283, 1298 (11th Cir. 2004) (recognizing a trial judge “should meticulously focus
on the expert’s principles and methodology, and not on the conclusions that they
generate”). “But conclusions and methodology are not entirely distinct from one
another”; neither Daubert nor Federal Rule of Evidence 702 requires a trial judge
“to admit opinion evidence that is connected to existing data only by the ipse dixit
of the expert.” Gen. Elec. Co., 522 U.S. at 146, 118 S. Ct. at 519. Instead, the
judge “is free to ‘conclude that there is simply too great an analytical gap between
the data and the opinion proffered.’” Hendrix, 609 F.3d at 1194 (quoting Gen.
Elec. Co., 522 U.S. at 146, 118 S. Ct. at 519); see McDowell, 392 F.3d at 1299
(noting “there is no fit where a large analytical leap must be made between the
facts and the opinion,” such as proffering animal studies concerning a type of
cancer in mice to establish a different cancer in humans (citing Gen. Elec. Co., 522
U.S. at 146, 118 S. Ct. at 519)). The district judge has “the task of ensuring that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at
hand.” Daubert, 509 U.S. at 597, 113 S. Ct. at 2799.
As gatekeeper for the expert evidence presented to the jury, the judge “must
do a preliminary assessment of whether the reasoning or methodology underlying
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the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue.” Kilpatrick v. Breg, Inc., 613 F.3d
1329, 1335 (11th Cir. 2010) (citation and internal quotation marks omitted). It is
“proper” and “necessary” for the trial judge “to focus on the reliability” of a
proffered expert’s “sources and methods.” Id. at 1336. Under Daubert, the
“district judge asked to admit scientific evidence must determine whether the
evidence is genuinely scientific, as distinct from being unscientific speculation
offered by a genuine scientist.” Allison v. McGhan Med. Corp., 184 F.3d 1300,
1316-17 (11th Cir. 1999) (citation and internal quotation marks omitted).
a. General Causation
General causation refers to the “general issue of whether a substance has the
potential to cause the plaintiff’s injury.” Guinn, 602 F.3d at 1248 n.1. The district
judge consolidated her consideration of the proffered testimonies of Dr. Brewer,
Dr. Landolph, and Dr. Lautenbach regarding general causation. Neither the judge
nor the parties questioned that these three experts were qualified to testify based on
their credentials, the first part of the Rule 702 test for admission of expert
testimony. Frazier, 387 F.3d at 1260. The judge, however, determined that their
methodologies were not sufficiently reliable to satisfy part two of the test and
therefore would not assist the trier of fact in understanding the evidence, part three
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of the test. Id. We must review the judge’s analysis that caused her to reach that
conclusion.
At the outset, the judge placed this case in McClain category two, where
“the medical community does not generally recognize the agent as both toxic and
causing the injury plaintiff alleges.” McClain, 401 F.3d at 1239. To establish
generally “Fixodent is capable of causing a myelopathy,” the Chapmans proffered
the testimonies of three experts. In re Denture Cream Prods. Liab. Litig., 795 F.
Supp. 2d at 1350. “Dr. Brewer would testify ‘that zinc containing Fixodent
denture adhesives are a health hazard and capable of causing severe hematological
and neurological injury.’” Id. at 1350-51 (quoting Brewer Report). “Dr. Landolph
would testify ‘that long-term use of Fixodent (containing 1.69% zinc) will result in
. . . neurotoxic, neurologic, and hematologic consequences.’” Id. at 1351 (quoting
Landolph Report). Dr. Lautenbach would testify “that there is ‘an association
between Fixodent and myeloneuropathy’ and he would ‘consider the
myeloneuropathy as a “probable” reaction related to denture adhesive use.’” Id.
(quoting Lautenbach Report).
The judge reviewed reliable methodologies, including dose-response
relationship, epidemiological evidence, background risk of the disease,
physiological processes involved, and clinical studies. Id. at 1351-57. The judge
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determined the Chapmans’ experts did not satisfy any of these recognized
methodologies. Failure to satisfy any of the four reliability factors recognized in
Daubert is sufficient to preclude the testimony of any of the general causation
experts from testifying at trial. 509 U.S. at 593-94, 113 S. Ct. at 2796-97.
Recognizing all substances potentially can be toxic, the judge noted “‘the
relationship between dose and effect (dose-response relationship) is the hallmark
of basic toxicology,’” and “‘is the single most important factor to consider in
evaluating whether an alleged exposure caused a specific adverse effect.’” 9 In re
Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1351-52 (quoting McClain,
401 F.3d at 1242). The judge noted, however, neither the Chapmans’ general-
9
The judge quoted the deposition testimonies of the three general-causation experts to show their
inability to state the Fixodent dosage to put an individual at risk of developing myelopathy:
Dr. Brewer:
Q. Have you ever determined the dose of Fixodent necessary to consistently place
individuals into a negative copper balance?
A. Experimentally, no.
....
Dr. Lautenbach:
Q. Now, do you know how much below normal . . . serum copper has to be and
for how long before you have myelopathies?
A. I don’t know.
Dr. Landolph:
Q. So no studies have been done to determine how low the copper must be in the
serum and for how long to cause myelopathy?
A. I had not seen such a precise curve . . . .
In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1352 n.16 (deposition citations
omitted).
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causation experts “nor the articles on which they rely determine how much
Fixodent must be used for how long to increase the risk of a copper-deficiency, or
for how long a copper-deficiency must persist before an individual is at an
increased risk of developing a myelopathy.” Id. at 1352. Similarly, the judge
recognized “[e]pidemiology is the ‘best evidence of causation’” in cases involving
toxic substances. Id. at 1354 (quoting Kilpatrick, 613 F.3d at 1337 n.8). But she
determined the Chapmans’ “experts have no analytical epidemiological evidence
on which to base their inference of causation.” 10 Id.
The judge further noted “[b]ackground risk of disease ‘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.’” Id. at 1355
(quoting McClain, 401 F.3d at 1243). While “‘[a] reliable methodology should
take into account the background risk,’” the judge found the Chapmans’ “causation
experts uniformly testified that they did not know the background risk of copper-
10
The judge supported the lack of epidemiological evidence with Dr. Lautenbach’s deposition
testimony:
Q. To the best of your knowledge, there are no controlled population-based
epidemiologic studies testing whether there is an association between denture
adhesive and the development of hematologic or neurologic disease. Correct?
A. That’s correct.
In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1354 n.21 (deposition citation
omitted).
19
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deficiency myelopathy,” which was “a serious methodological deficiency.” 11 Id.
(alteration in original) (quoting McClain, 401 F.3d at 1243). The judge explained:
[T]he question of background risk is important because it could be
coincidence that any particular denture-cream user has a myelopathy
or copper-deficiency myelopathy. Some people use denture cream
and some people have a myelopathy; it is possible (and depending on
the incidence of myelopathies, likely) that some denture-cream users
have an idiopathic myelopathy simply due to the background
distribution of that disease. Without a baseline, any incidence may be
coincidence.
11
The Chapmans’ general-causation experts testified concerning the lack of background risk of
CDM at their respective depositions:
Dr. Brewer:
Q. Do you know the incidence of myeloneuropathies in the United States?
A. No.
Q. Do you know the incidence of myeloneuropathies, myelopathies, or
myeloneuropathies [sic] amount uses of zinc-containing denture adhesives in the
United States?
A. No.
Dr. Lautenbach:
Q. Do you know what the incidence of myelopathy is in the general population?
A. I don’t. I’m not sure it’s been well defined.
Dr. Landolph:
Q. You are unable to give me a number setting forth the incidence of
myeloneuropathy among users of zinc containing denture adhesives in the United
[S]tates, correct?
A. That’s correct, the precise number, I don’t have that data.
In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1355 n.22 (first alteration in
original) (deposition citations omitted).
20
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Id. at 1356. The judge concluded the absence of background risk of disease was “a
substantial weakness” in the Chapmans’ experts’ general-causation reasoning. Id.
Given the deposition admissions of Dr. Brewer, Dr. Lautenbach, and Dr.
Landolph regarding their lack of knowledge of dose-response, epidemiological
evidence, and background risk of disease, methodologies this circuit has
recognized as indispensable to proving the effect of an ingested substance, we
conclude that the testimonies of these proffered experts could not establish general
causation of myelopathy by Fixodent. Because these experts have failed to
demonstrate the primary methods for proving the zinc in Fixodent causes
myelopathy, their secondary methodologies, including plausible explanations,
generalized case reports, hypotheses, and animal studies are insufficient proof of
general causation. This latter evidence could mislead the jury by causing it to
consider testimony that was insufficient by recognized primary methodologies to
prove using Fixodent causes myelopathy. As gatekeeper for the evidence
presented to the jury, the judge did not abuse her discretion or commit manifest
injustice by precluding the testimonies of Dr. Brewer, Dr. Lautenbach, and Dr.
Landolph as experts on general causation.
b. Specific Causation
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“Specific causation refers to the issue of whether the plaintiff has
demonstrated that the substance actually caused injury in her particular case.”
Guinn, 602 F.3d at 1248 n.1. The Chapmans proffered only one expert to prove
specific causation, Dr. Greenberg, who would testify at trial: “‘[A] diagnosis of
copper deficiency myelopathy is certain . . . [and] in this patient, it was precisely
the ingested zinc in the denture cream that caused her copper deficiency.’” In re
Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1365 (alterations and
ellipsis in original) (quoting Greenberg Report). His conclusion allegedly resulted
from “the scientifically accepted methodology of differential diagnosis,” Guinn,
602 F.3d at 1253, “a medical process of elimination whereby the possible causes of
a condition are considered and ruled out one-by-one, leaving only one cause
remaining,” Hendrix, 609 F.3d at 1195. Differential diagnosis includes three steps:
(1) the patient’s condition is diagnosed, (2) all potential causes of the ailment are
considered, and (3) differential etiology is determined by systematically
eliminating the possible causes. McClain, 401 F.3d at 1252. A reliable differential
analysis “need not rule out all possible alternative causes,” but “it must at least
consider other factors that could have been the sole cause of the plaintiff’s injury.”
Guinn, 602 F.3d at 1253. Differential diagnosis, “however, will not usually
overcome the fundamental failure of laying a scientific groundwork for the general
22
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toxicity of the drug and that it can cause the harm a plaintiff suffered.” McClain,
401 F.3d at 1252.
While differential diagnosis as a scientifically accepted methodology meets
the Daubert guiding factors for district judges in deciding reliability, 509 U.S. at
593-94, 113 S. Ct. at 2796-97, Dr. Greenberg did not follow it. Marianne
Chapman’s treating physicians had not diagnosed her with CDM or informed her
that her Fixodent use caused her neurologic symptoms. 12 Although her diagnosis
generally was “neurological syndrome,” she was not professionally diagnosed with
CDM until Dr. Greenberg examined her in the course of this litigation as the
Chapmans’ specific-causation expert.13 Greenberg Report at 10.
12
Marianne Chapman’s medical history reveals she had experienced neurologic ailments in her
childhood, long before her Fixodent use began in 2001. Matthew E. Fink (P&G expert) Report
at 4-5. As a child, she had suffered frequent migraine headaches and was treated for unexplained
foot and ankle pain. Id. at 4. She was evaluated during her teen years for pain from her shoulder
through her leg. Id. After a series of recurrent falls, some of which resulted in hospitalization,
she complained of pain in her lower extremities, numbness, and decreased sensation. Id. at 5. In
adulthood, before her use of Fixodent, Marianne Chapman was diagnosed with hereditary
hemorrhagic telangiectasia, a genetic disorder often accompanied with spinal cord, neurologic
ailments. Marianne Chapman Dep. at 39:20-25; Fink Report at 16.
13
Marianne Chapman’s husband first “diagnosed” her medical ailments as the result of her
ingestion of zinc by researching the issue on the Internet. See Daniel Chapman Dep. at 57:15-24
(“A. I looked up her symptoms and I learned about zinc poisoning. Q. Now, prior to the time
when you did that, had anybody suggested to you that it could be zinc poisoning? A. No. Q. So
are you the first person that thought Marianne Chapman, your wife, might have zinc poisoning?
A. Yes.”); Marianne Chapman Dep. at 111:13-25 (“When did it first come to your attention that
there might be some nerve problems that could result from the zinc in Fixodent or other dental
adhesives? . . . A. In the beginning of ’09 when my husband was looking up neuropathy, the
browser log popped up with all different types of neuropathy, links to neuropathy and possible
causes of neuropathy. And that’s when he had brought it to my attention that the zinc in the
denture cream could cause neuropathy.”); Greenberg Report at 6 (noting Marianne Chapman and
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Marianne Chapman’s medical history included neurological ailments that
occurred before and after her Fixodent use.14 Notably, her neurological symptoms
continued after she ceased using Fixodent. 15 “Temporal proximity is generally not
a reliable indicator of a causal relationship.” Guinn, 602 F.3d at 1254. “The
temporal connection between exposure to chemicals and an onset of symptoms,
standing alone, is entitled to little weight in determining causation.” McClain, 401
F.3d at 1254 (citation, internal quotation marks, and alteration omitted). But Dr.
Greenberg failed to explore fully other potential causes of Marianne Chapman’s
CDM, which he diagnosed in the course of this litigation. In re Denture Cream
Prods. Liab. Litig., 795 F. Supp. 2d at 1366. In addition to copper deficiency as
the cause of Marianne Chapman’s neurological ailments, Dr. Greenberg had
identified “structural spinal cord injury, multiple sclerosis, and vitamin B12
her husband “became concerned about the possibility of zinc poisoning after research on the
Internet”).
14
After Marianne Chapman began using Fixodent, she again complained of pain in her lower
extremities. Marianne Chapman Dep. 12:25-13:14. She was diagnosed with and treated for
vitamin B12 deficiency, which has been associated with myelopathy. Fink Report at 14;
Greenberg Dep. 75:1-9. Following brief improvement, her neurologic ailments returned in 2006,
when she experienced burning and numbness in her legs, poor balance, and the eventual loss of
motor control in her right hand. Fink Report at 14-15. In 2006, Marianne Chapman also
developed anemia (low red blood cells) and neutropenia (low white blood cells). Greenberg
Report at 5 (Table 3). She had normal red and white blood-cell measurements in May and
November 2006, while she continued to use Fixodent; her neutropenia normalized permanently
in September 2008, before she stopped using Fixodent in 2009. Id.; Fink Report at 15.
15
Ten months after Marianne Chapman stopped using Fixodent, she reported worsening hand
weakness and wrist drop. Fink Report at 15. Two years after she ceased using Fixodent, in
2011, she had a recurrence of a neurological problem, a positive Romberg sign of unsteady
balance with her eyes closed, which was not present in 2010. Greenberg Report at 7; Fink
Report at 13.
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deficiency.” 16 Id. Given her extensive medical history of neurological problems
since childhood, it is entirely possible that Marianne Chapman had the myelopathy
condition that she attributes to Fixodent prior to her use of the denture cream,
because her symptoms occurred before and after using Fixodent. See Guinn, 602
F.3d at 1254 (“Because [plaintiff] was diagnosed with diabetes only four years
after beginning to take Seroquel, the temporal relationship in this case does not
provide strong evidence of causation; in fact, it appears to equally indicate that
[plaintiff] may have already developed diabetes before ever taking Seroquel.”
(emphasis added)). In addition, Dr. Greenberg recognized lymphoproliferative
disorders as possible causes of Marianne Chapman’s hematological syndrome and
“malabsorption and gastric bypass surgery as potential causes for her copper-
deficiency.” In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1366
(emphasis added).
A reliable differential analysis requires an expert to “compile a
comprehensive list of hypotheses that might explain” a plaintiff’s condition.
16
P&G contended to the district judge that Dr. Greenberg also should have considered other
hereditary and acquired diseases that could have caused Marianne Chapman’s myelopathy,
including adrenomyeloneuropathy, complicated hereditary spastic paraplegia, Charcot-Marie-
Tooth disease, hereditary motor and sensory neuropathy Type V, subtypes of spinocerebeller
atrophy, hereditary ataxia with neuropathy, vitamin E deficiency, Sjogren’s syndrome,
sarcoidosis, HTLV-1, neuromylitis optica, and multiple-vitamin-deficiency syndrome. In re
Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1366. The judge noted P&G’s argument
concerning hereditary neuropathies, including myelopathies, “are far more common than copper-
deficiency myelopathies,” making Marianne Chapman’s myelopathy “more likely caused by a
genetic condition than by Fixodent, especially considering her personal medical history.” Id.
(emphasis added) (citation and internal quotation marks omitted).
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Hendrix, 609 F.3d at 1195 (citation and internal quotation marks omitted). The
“expert must provide reasons for rejecting alternative hypotheses using scientific
methods and procedures and the elimination of those hypotheses must be founded
on more than subjective beliefs or unsupported speculation.” Id. at 1197 (citation
and internal quotation marks omitted). An expert’s failure to enumerate a
comprehensive list of alternative causes and to eliminate those potential causes
determines the admissibility of proposed specific-causation testimony. See Guinn,
602 F.3d at 1254 (determining no abuse of discretion in concluding the specific-
causation expert’s hypothesis was unreliable under Daubert, because of failure to
consider possible alternative causes of plaintiff’s diabetes).
Significantly, after concluding his report on Marianne Chapman, Dr.
Greenberg performed an additional, reasonable test on her to determine if she had
arterial venous malformation in her thoracic spinal cord. The judge found Dr.
Greenberg’s “failure to perform a test he considered reasonable before opining on
the cause of Ms. Chapman’s disease shows a lack of methodological rigor in
reaching the diagnosis in his report,” because he “did not consider the possibility
of an idiopathic cause for Ms. Chapman’s myelopathy.” In re Denture Cream
Prods. Liab. Litig., 795 F. Supp. 2d at 1367. Dr. Greenberg failed to consider
obvious alternative causes for Marianne Chapman’s CDM, such as hereditary and
acquired conditions known to cause myelopathies. See Guinn, 602 F.3d at 1257
26
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(affirming exclusion of plaintiff’s expert witness following Daubert proceedings,
when the expert’s testimony revealed facts casting “substantial doubt on whether
Seroquel contributed to [plaintiff’s] development of diabetes,” since plaintiff “had
multiple risk factors that could have been the sole cause of [her] diabetes[,] and
[the expert] was unable to determine the relative risk of each factor”). Instead, Dr.
Greenberg pursued his view that zinc-associated copper deficiency was responsible
for Marianne Chapman’s neurological and hematological symptoms. Yet, he
provided no support for his hypothesis that Marianne Chapman’s anemia,
neutropenia, and myelopathy resulted from a single cause rather than several
causes. He also omitted consideration of idiopathic causes for Marianne
Chapman’s CDM, additionally rendering his differential diagnosis unreliable. See
Kilpatrick, 613 F.3d at 1342 (“The failure to take into account the potential for
idiopathically occurring [disease]—particularly when [the disease] is a relatively
new phenomenon in need of further study—placed the reliability of [the expert’s]
conclusions in further doubt.”).
Obviously, there were numerous potential causes for Marianne Chapman’s
CDM that Dr. Greenberg did not analyze or consider. The district judge
determined “Dr. Greenberg’s differential diagnosis is not reliable as a matter of
law in the Eleventh Circuit because he ruled-in and considered an etiology—
Fixodent-induced copper-deficiency myelopathy—that has not been established to
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cause Ms. Chapman’s disease.” In re Denture Cream Prods. Liab. Litig., 795 F.
Supp. 2d at 1366. In reviewing the evidence presented and applying the applicable
law, we conclude the district judge did not abuse her discretion or commit manifest
error in precluding Dr. Greenberg’s expert testimony regarding the specific
causation of Marianne Chapman’s CDM.
c. Exclusion of Other Expert Testimony
Because the judge determined neither the general nor specific-causation
experts had proffered testimony that would prove the zinc in Fixodent had caused
Marianne Chapman’s CDM, she also excluded the testimonies of Dr. Wogalter and
Dr. Von Frunhofer, whose testimonies were premised on the toxicity of Fixodent.
In re Denture Cream Prods. Liab. Litig., 795 F. Supp. 2d at 1367.
In short, taking everything together, there is enough data in the
scientific literature to hypothesize causation, but not to infer it.
Hypotheses are verified by testing, not by submitting them to lay
juries for a vote. It may very well be that Fixodent in extremely large
doses over many years can cause copper deficiency and neurological
problems, but the methodology [the Chapmans’] experts have used in
reaching that conclusion will not reliably produce correct
determinations of causation.
Id. The proposed testimony of Dr. Raffa concerned P&G’s assets, which related to
the punitive damages claim. Consequently, the judge precluded the proffered
testimonies of these experts based on Rule 702 relevancy. We conclude there was
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no abuse of discretion or manifest injustice in granting P&G’s motions preventing
the testimonies of these three experts for the Chapmans.
B. Summary Judgment
After this court dismissed the parties’ first appeal for lack of jurisdiction,
based on our conclusion the Chapmans did not consider the district judge’s
Daubert order case-dispositive, the judge granted their Federal Rule of Civil
Procedure 60(b) motion for relief from the final judgment. Thereafter, P&G
moved for summary judgment and argued the Chapmans did not have an
admissible expert witness to establish general or specific causation. In opposition,
the Chapmans argued they had alternative expert witnesses to testify at trial,
irrespective of the district judge’s Daubert order. Concluding under the governing
law the Chapmans had no experts to prove their products liability case alleging
Fixodent was the cause of Marianne Chapman’s CDM, the district judge granted
summary judgment to P&G and entered final judgment.
The Chapmans’ notice of appeal states they are appealing the summary
judgment order and final summary judgment entered on July 31, 2012, “as well as
all orders and rulings that produced that final judgment,” including the order
granting P&G’s motions to exclude the testimony of the Chapmans’ seven general
and specific expert witnesses. Notice of Appeal (Aug. 27, 2012). We have
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considered fully the district judge’s thorough Daubert order, which eliminated the
Chapmans’ expert witnesses, and concluded it was decided correctly under the
controlling law. We now address the summary judgment order the Chapmans have
appealed in conjunction with the Daubert order. 17
We review a district judge’s granting summary judgment de novo. Williams
v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1318 (11th Cir. 2011). Summary
judgment is proper if the movant shows “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). When a party fails to proffer a sufficient showing “to establish the
existence of an element on which that party will bear the burden of proof at trial,”
there is no genuine dispute regarding a material fact. Williams, 644 F.3d at 1318
(citations, internal quotation marks, and ellipsis omitted). The burden for laying
the proper foundation for admission of expert testimony is on the party offering the
expert; admissibility must be shown by a preponderance of the evidence. Daubert,
509 U.S. at 592 n.10, 113 S. Ct. at 2796 n.10 (citing Bourjaily v. United States, 483
17
Procedurally, this case has been appealed from the district judge’s order granting summary
judgment to P&G. Her Daubert order, excluding the Chapmans’ general and specific-causation
experts, alone could not have provided the procedural basis for appellate jurisdiction, because it
was not a final order. Consequently, the Chapmans have incorporated the judge’s Daubert order
in their appeal of summary judgment granted to P&G to have this court review the merits of the
Daubert order. The Chapmans’ reasons for appealing summary judgment granted to P&G were
raised before the district judge and decided in her order. The Chapmans’ opposition to P&G’s
summary judgment motion consisted of their proposing alternative experts for trial testimony,
while the Daubert order had addressed and excluded their general and specific-causation experts.
To the extent the Chapmans have appealed the same reasons for opposing P&G’s summary
judgment motion before the district judge, we address them.
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U.S. 171, 175-76, 107 S. Ct. 2775, 2778-79 (1987)). “Evidence inadmissible at
trial cannot be used to avoid summary judgment.” Corwin v. Walt Disney Co., 475
F.3d 1239, 1249 (11th Cir. 2007) (citation, internal quotation marks, and alteration
omitted).
The Chapmans opposed summary judgment for lack of expert witnesses
following the Daubert order for three reasons: (1) their expert, Dr. Joseph
Prohaska, a biochemistry professor at the University of Minnesota Medical School,
could testify at trial, because P&G had not contested his proffered testimony; (2)
they could call P&G experts and witnesses to testify that excessive ingestion of
zinc can lead to copper deficiency, which can cause CDM; and (3) Marianne
Chapman’s treating physicians for her neuropathy could testify regarding
causation. Because of the Chapmans’ “periodic and contradictory insistence on
having enough evidence to proceed to trial,” the judge analyzed the merits of
P&G’s motion to make her decision “perfectly clear” for this court. 18 Summ. J.
Order at 6. In granting summary judgment to P&G, the district judge addressed
the three possibilities for expert testimony the Chapmans had proffered following
18
Because of the Chapmans’ joining in the interlocutory appeal purporting to be a final judgment
and her granting the Rule 60(b) motion, the judge was inclined to grant P&G’s motion for
summary judgment based on judicial estoppel under New Hampshire v. Maine, 532 U.S. 742,
121 S. Ct. 1808 (2001). See id. at 749, 121 S. Ct. at 1814 (“Where a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if it be to the
prejudice of the party who has acquiesced in the position formerly taken by him.” (citation,
internal quotation marks, and alteration omitted)).
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her Daubert order, precluding the testimonies of their general and specific
causation experts, and concluded their alternative expert witnesses also were
unavailing.
On appeal, the Chapmans challenge both the district judge’s Daubert order
and summary judgment granted to P&G, because the cumulative effect of these
orders eliminated all potential causation experts the Chapmans had proffered.
Their arguments for alternative expert witnesses are combined in the Chapmans’
initial and reply briefs with their Daubert arguments, regarding their contention the
district judge erred in disqualifying their original causation experts. See, e.g.,
Appellants’ Br. at 18 n.5, 22-23, 25, 30-31, 40, 43, 44-46, 47, 48-49, 50, 56, 60;
Appellants’ Reply Br. at 4 n.1, 6, 8, 11, 14, 16-17, 18, 21, 22, 24, 30. The
alternative expert witnesses the Chapmans propounded following the Daubert
order and precluded by summary judgment granted to P&G necessarily had to
satisfy the same Daubert review standards to testify concerning causation for the
Chapmans to prove their case that Fixodent caused Marianne Chapman’s CDM.
The Chapmans discuss Dr. Prohaska19 and P&G experts and witnesses 20 in
their initial and reply briefs in connection with their contention that the medical
19
The Chapmans argue Dr. Prohaska’s Report states his “unchallenged opinion [by P&G] that
zinc excess causes copper deficiency and that copper deficiency caused [Marianne] Chapman’s
hematological symptoms.” Appellants’ Br. at 18 n.5.
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20
In their initial brief, the Chapmans argue P&G pre-litigation studies, demonstrating the
bioavailability of zinc after ingestion, would support their position:
Plaintiffs’ experts relied on three internal P&G studies demonstrating that
a large percentage of the Fixodent used by denture wearers is ultimately ingested
into the body and that the zinc in Fixodent, once ingested, is highly bioavailable
in the small intestine, ultimately being absorbed into the bloodstream and leading
to elevated serum zinc levels. In 1993, P&G performed a study of 10 actual
denture wearers “to obtain data on the quantity of Zinc ions ingested by the study
subjects following daily administration of the maximum recommended amount of
[denture] adhesive paste.” P&G Clinical Study Report No. 003793, at 5 (Sept.
1993) (“1993 Study”). Even when the study subjects were instructed to apply
only half of the label’s recommended amount of adhesive, P&G found that the
studied users ingested approximately 50% of the Fixodent applied. [Footnote 17
to this sentence states: “At that rate, someone like Ms. Chapman would ingest 247
mg of zinc daily (approximately 10 times the threshold for causing
hypocupremia).”]
Moreover, P&G internal studies dating back more than two decades have
demonstrated that, once ingested, most of the elemental zinc dissociates from the
Fixodent polymer and becomes free-floating in the intestines, where it affects
copper metabolism. First, in 1989, prior to the introduction of Fixodent, P&G
conducted a “zinc dissociation experiment” in which it mixed Fixodent with
laboratory-simulated saliva, gastric fluid, and intestinal proteins. P&G calculated
that “nearly 100% [of the zinc] dissociated (96.6%)” from its polymer when
mixed with the simulated gastric fluid. P&G Report on Zinc Dissociation
Experiment at 5 (July 1989). P&G further recognized that the zinc ions would
bind with proteins in the small intestine, the precise mechanism by which zinc
interferes with copper absorption (binding to metallothionein).
Subsequently, in 1994, P&G performed an “[i]n vitro dialysis study” to
further analyze the bioavailability of Fixodent. Consistent with its 1989 study,
P&G found that 83.3% of the zinc in Fixodent became bioavailable when the
denture cream was mixed with simulated gastric fluid (compared to 93% for zinc
salt). P&G Dialysis Study on Denture Adhesives at 2 (Nov. 1994). The
researchers responsible for the 1994 study noted that, “if the adhesive is ingested,
. . . the majority of [the zinc will] be released” into the body, and as P&G had
found the previous year, users ingest almost all of the Fixodent that they apply.
As Dr. Brewer stated in his report, P&G’s own studies provide reliable evidence
that the zinc in Fixodent can, if the adhesive is consumed, “caus[e] copper
depletion and its clinical manifestations.” Brewer Rep. 9 & n.14.
In excluding Plaintiffs’ general-causation experts, the district court never
mentioned these studies or explained why they were not reliable in demonstrating
the bioavailability of zinc in Fixodent. The court thus erred by failing to do the
kind of “exacting analysis of the proffered expert’s methodology” that Daubert
requires. That error was critical: given that it is well settled that zinc can cause
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community generally accepts excess zinc can cause CDM. Appellants’ Br. at 27-
33; Appellants’ Reply Br. at 3-6. Accepting this classification would place this
case in McClain category one, which would eliminate the Daubert analysis of the
Chapmans’ experts, if it were generally accepted by the medical community that
zinc causes CDM. We give the Chapmans “the benefit of the doubt” that these
first two sources of alternative expert witnesses have been presented on appeal in
their briefs. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,
1293 (11th Cir. 2009). The district judge noted “Dr. Prohaska’s report was limited
to hematological disorders, not myelopathy, and is therefore irrelevant.” Summ. J.
Order at 7. Although the Chapmans “may show zinc blocks copper absorption,
this alone cannot constitute a showing of general or specific causation.” Id. at 8;
see Rider, 295 F.3d at 1202 (noting causation evidence of one type of stroke “does
not apply to situations involving” another type of stroke). Moreover, she decided
“there was no mechanistic evidence regarding the absorption of zinc from Fixodent
itself.” Summ. J. Order at 8. In performing the requisite gatekeeping function, a
trial judge’s assessment of proposed testimony does not mean “‘taking the expert’s
word for it.’” Frazier, 387 F.3d at 1261 (quoting Fed. R. Evid. 702 Advisory
CDM, P&G’s own internal studies showing that Fixodent is ingested, and that
when ingested exposes users to bioavailable zinc, constitute reliable evidence that
zinc in Fixodent generally can cause CDM.
Appellants’ Br. at 44-46 (alterations and ellipsis in original) (some citations omitted).
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Committee Notes (2000 Amends.)). We also conclude that Dr. Prohaska’s
testimony cannot provide admissible proof the Chapmans need to establish their
case at trial, because his expertise is hematology and not myelopathy at issue in
this case.
In addition, the judge explained the Chapmans “cannot create a triable issue
of fact as to causation” with P&G experts and witnesses, who have not submitted
the requisite epidemiological or clinical reports. Summ. J. Order at 9. Expert
witnesses, who are expected to testify at trial, must be identified in the Joint
Pretrial Stipulation and must meet the procedural requirements of Federal Rule of
Civil Procedure 26(a)(2), including time designations for supplying disclosures and
reports, regarding expert testimony to be given. The Chapmans proposed their
ability to use P&G experts and witnesses at trial almost six months after the
judge’s scheduled January 24, 2011, deadline for identifying experts, making
complying with the procedural timely notice and disclosure requirements of Rule
26(a)(2), including reports of testimony, impossible. 21 See Fed. R. Civ. P.
26(a)(2)(D) (stating a party “must” disclose expert testimony “at the times and in
21
Because the Chapmans had waited six months after the court-imposed deadline for naming
expert witnesses before proffering P&G’s experts to testify for them at trial, the district judge
recognized that they were procedurally barred from using these alternative witnesses at trial. We
are not saying parties may not use opposing parties’ experts to prove their case at trial as a
general proposition. We are recognizing that all experts, regardless of which party secured their
services, must meet the qualifications established by Daubert and the procedural requirements of
Rule 26(a)(2).
35
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the sequence that the court orders”). “District courts have broad discretion to
exclude untimely disclosed expert-witness testimony.” Pride v. BIC Corp., 218
F.3d 566, 578 (6th Cir. 2000).
Even if the Chapmans had satisfied the procedural requirements of Rule
26(a)(2) to use P&G experts and witnesses to testify for them at trial, the district
judge concluded the Chapmans could not prove their case with them. P&G’s
experts had “reached the conclusion that Fixodent does not cause CDM.” 22 Summ.
J. Order at 9. The judge determined the Chapmans had “not made a sufficient
showing that [P&G’s] expert testimony would withstand the Daubert analysis of
[her] June 13 Order and yield the conclusion they seek, in view of [P&G’s]
experts’ testimony as a whole.” Id. Deciding the P&G witnesses ultimately did
not support the Chapmans’ conclusion that Fixodent caused Marianne Chapman’s
CDM, the judge explained the Chapmans “cannot perform an end run around the
[Daubert] Order by calling witnesses who have not been vetted for reliability.” Id.
The judge also noted P&G’s expert, Dr. Laura W. Katzan, cannot “establish
22
For example, P&G expert, Dr. Timothy R. Koch, plainly disagreed with the Chapmans’
general causation theory and stated: “It’s my position, based on an independent review of the
literature [and] based upon my own practice and experience, that there’s not a sufficient amount
of medical and scientific information and evidence available to support the statement that zinc
induces myelopathy.” Koch Dep. at 67:9-17. Similarly, the district judge noted the Chapmans
contended P&G expert, Dr. Lara W. Katzin, “confirmed that zinc-induced CDM should be
considered in the differential etiology for Ms. Chapman’s condition,” but failed to square that
statement with the judge’s discussion of Eleventh Circuit law stating general causation cannot be
proved by differential diagnosis, “a necessary element of their claims.” Summ. J. Order at 9
(citing McClain, 401 F.3d at 1253) (citation and internal quotation marks omitted).
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general causation, a necessary element of their claims,” by differential diagnosis.
Id. (citing McClain, 401 F.3d at 1253). Considering the prospective testimonies of
P&G experts and witnesses in context, the judge properly decided the Chapmans
could not prove their case with admissible evidence from these alternative experts
and witnesses.
At a status conference the day after issuance of the Daubert order, the
Chapmans’ counsel argued for the first time they still could try to prove causation
through “treating experts who have opined [Marianne Chapman’s] condition was
caused by her use of Fixodent that were not the subject of the Daubert motion.”
Hr’g Tr., June 14, 2011, at 7:21-8:1 (emphasis added). In recasting Marianne
Chapman’s treating physicians as “treating experts,” the Chapmans sought to have
these doctors testify concerning their personal treatment of Marianne Chapman as
well as their view of the cause of her CDM. The judge, however, explained in her
summary judgment order that treating physicians, who diagnosed Marianne
Chapman’s CDM, are fact and not expert witnesses. 23 Summ. J. Order at 10
23
A treating physician providing lay testimony can testify narrowly, limited to personal
knowledge resulting from providing medical care, involving consultation, examination, or
treatment of a patient plaintiff. See United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.
2005) (distinguishing between an oral surgeon’s testimony that a patient had a fractured jaw as
opposed to giving a hypothesis as to the cause). But “a treating doctor . . . is providing expert
testimony if the testimony consists of opinions based on ‘scientific, technical, or other
specialized knowledge’ regardless of whether those opinions were formed during the scope of
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(citing Hendrix, 609 F.3d 1183). The Chapmans have not briefed on appeal their
district-court argument in opposing summary judgment that Marianne Chapman’s
treating physicians could testify as experts at trial. “The ‘law is by now well
settled in this Circuit that a legal claim or argument that has not been briefed
before the court is deemed abandoned and its merits will not be addressed.’”
Carmichael, 572 F.3d at 1293 (quoting Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1330 (11th Cir. 2004)). Consequently, we conclude the Chapmans
have abandoned on appeal their argument that Marianne Chapman’s treating
physicians could have testified as experts at trial. Because none of the Chapmans’
alternative sources for expert witnesses could provide evidence admissible at trial
“to avoid summary judgment,” the district judge appropriately granted summary
judgment to P&G. Corwin, 475 F.3d at 1249 (citations and internal quotation
marks omitted).
III. CONCLUSION
To prove Fixodent caused Marianne Chapman’s CDM, the Chapmans were
required to have Daubert-qualified, general and specific-causation-expert
testimony that would be admissible at trial to avoid summary judgment. Guinn,
interaction with a party prior to litigation.” Musser v. Gentiva Health Servs., 356 F.3d 751, 757
n.2 (7th Cir. 2004) (quoting Fed. R. Evid. 702(a)).
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602 F.3d at 1252. With the district judge’s properly analyzed Daubert order, the
Chapmans lost their designated general and specific-expert witnesses, because of
deficiencies in the experts’ scientific-methodology reliability. Their attempts to
proffer alternative causation-expert witnesses failed, because their prospective
testimony was inadmissible substantively, procedurally, or abandoned on appeal.
Summary judgment correctly was granted to P&G.
AFFIRMED.
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JORDAN, Circuit Judge, concurring:
Given the “due deference” that the abuse of discretion standard embodies,
see Gall v. United States, 552 U.S. 38, 59 (2007), and the “range of choice”
permitted by that standard, see In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994), I
agree that we should affirm the district court’s exclusion of the Chapmans’ general
causation experts. I would, therefore, not address any of the other issues raised by
the Chapmans.
Specifically, I would not suggest, as the court does in dictum, that the
district court could have properly prevented the Chapmans from relying on Procter
& Gamble’s own experts. The district court addressed the Chapmans’ reliance on
some of the defense experts on the merits and did not exclude those experts under
Rule 26 of the Federal Rules of Civil Procedure. So there is no need to
hypothesize about how we would rule if the district court had decreed that such
reliance by the Chapmans was procedurally improper. Moreover, P&G does not
assert Rule 26 on appeal, and some cases hold that, because there is no surprise or
prejudice, a party is permitted to use and rely on the expert testimony presented by
the opposing party. See, e.g., Nat’l Railroad Passenger Corp. v. Certain
Temporary Easements, 357 F.3d 36, 42 (1st Cir. 2004) (no abuse of discretion in
allowing plaintiff to call defense expert in its case-in-chief); Kerns v. Pro-Foam of
South Alabama, 572 F.Supp.2d 1303, 1309-12 (S.D. Ala. 2007) (failure of plaintiff
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to disclose defendant’s expert as its own expert did not prevent plaintiff from
calling that expert during its case-in-chief). If we are going to opine on this issue,
we should wait for a case which directly presents it.
In closing, I recognize that the district court at times used language which
might be seen as opining on the ultimate persuasiveness of the theories advanced
by the Chapmans’ experts. But given its numerous accurate statements of the
correct standard under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), I do not think the district court applied an incorrect (or improperly
onerous) legal standard.
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