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Chapman v. Procter & Gamble Distributing, LLC

United States Court of Appeals, Eleventh Circuit

September 11, 2014


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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket Nos. 1:09-md-02051-CMA; 9:09-cv-80625-CMA.

For Marianne Chapman, Daniel Chapman, Plaintiffs - Appellants: David Charles Frederick, Derek T. Ho, Kellogg Huber Hansen Todd Evans & Figel, PLLC, Washington, DC; Andres F. Alonso, Daniel C. Burke, Jordan L. Chaikin, Matthew J. McCauley, Melanie H. Muhlstock, Raymond C. Silverman, Parker Waichman, LLP, Port Washington, NY; Eric T. Chaffin, Chaffin Luhana, LLP, New York, NY.

For The Procter & Gamble Distributing, Llc, Defendant - Appellee: Christopher R.J. Pace, Jones Day, Miami, FL; Mary-Jo Pullen, Frank C. Woodside III, Dinsmore & Shohl, LLP, Cincinnati, OH; Edward Soto, Weil Gotshal & Manges, LLP, Miami, FL.

For The Procter & Gamble Manufacturing Co., Defendant - Appellee: Edward Soto, Weil Gotshal & Manges, LLP, Miami, FL.

Before PRYOR, JORDAN and FAY, Circuit Judges. JORDAN, Circuit Judge, concurring.


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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.


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.

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

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these similar cases against 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, 125 L.Ed.2d 469 (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).

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 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.

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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. 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 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

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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 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 ...

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