Castillo v. EI Du Pont De Nemours & Co., Inc.

854 So.2d 1264

John CASTILLO, etc., et al., Petitioners, v. E.I. DU PONT DE NEMOURS & CO., INC., et al., Respondents.

No. SC00-490.

Supreme Court of Florida.

July 10, 2003.

Rehearing Denied September 4, 2003.

James L. Ferraro of Ferraro & Associates, P.A., Miami, FL; Elizabeth K. Russo and Philip D. Parrish of Russo Parrish Appellate Firm, Miami, FL; and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for Petitioners.

Arthur J. England, Jr. of Greenberg Traurig, P.A., Miami, FL; Edward W. Warren and Jeffrey Bossert Clark of Kirkland & Ellis, Washington, DC; and David Kleinberg of Gaebe Murphy Mullen & Antonelli, Coral Gables, FL, for Respondents.

Martin S. Kaufman, Atlantic Legal Foundation, New York, NY, for Mason Barr, M.D., Jaime L. Frias, M.D., Richard K. Miller, Ph.D., and Janine E. Polifka, Ph.D., Amici Curiae.

QUINCE, J.

We have for review E.I. DuPont De Nemours & Co., Inc. v. Castillo, 748 So.2d 1108 (Fla. 3d DCA 2000), which expressly and directly conflicts with the opinion in Berry v. CSX Transportation, Inc., 709 So.2d 552 (Fla. 1st DCA 1998). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the Third District's decision and hold that the expert testimony offered by the petitioners at trial was admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

Procedural History

This case involves a products liability and negligence claim against E.I. Du Pont de Nemours & Co., Inc. (DuPont), the manufacturer of Benlate, and Pine Island Farms, Inc. (Pine Island), the owners of a "u-pick" farm which used Benlate and operated in the petitioners' neighborhood. Donna and John Castillo (the Castillos) allege that when Mrs. Castillo was seven weeks pregnant, she was exposed to Benlate, an agricultural fungicide used by Pine Island. They further allege that benomyl, the active ingredient in Benlate, entered her bloodstream and caused microphthalmia, a rare birth defect involving severely underdeveloped eyes, in her unborn son John.

The complaint against DuPont and Pine Island was filed after the Castillos were contacted by British reporter John Ashton, who was conducting an investigation into the relationship between Benlate and children born with microphthalmia in Great Britain. He asked Mrs. Castillo if she lived on or near a farm. She told him she lived near the "u-pick" farm. Ashton then contacted Lynn Chaffin, the manager of Pine Island, and asked him if Pine Island had sprayed Benlate on the "u-pick" field in November 1989. Chaffin told him that Pine Island had sprayed Benlate in November of 1989. Although at trial Chaffin testified that he did not remember such a conversation, telephone records confirm an eight-minute phone conversation originating in London, England.

The Third District's opinion below recites the following facts:

According to Donna Castillo's trial testimony, she passed by the "u-pick" farm in question on either November 1st or 2nd, 1989, as she walked with her young daughter, Adriana, while pregnant with John. As she walked, she observed a tractor that she described as "bucking and jerking" and spraying "tons" of mist into the air. As the mist drifted over her (she indicated that it was a windy day), it completely drenched her. She returned to her home and did not shower that night. She was in her seventh week of pregnancy at the time.

The plaintiffs established that Pine Island purchased its chemicals from two suppliers: Helena Chemicals and S & M Chemicals. The evidence showed that in 1989, Pine Island purchased Benlate from Helena Chemicals on four occasions: March 20—thirty six pounds; April 29—twenty-four pounds; May 4— twelve pounds; and December 19—sixty pounds. Because S & M's records were destroyed by Hurricane Andrew in 1992, there was no evidence of purchase from S & M for 1989. Pine Island's general manager, Lynn Chaffin, testified that S & M was not a major provider of chemicals for his employer because their prices were too high. He likened S & M to a convenience store like "Quick Mart" where only small purchases were made. He further testified thatwhen purchased chemicals were not used it was the company's practice to return them for credit. This practice was confirmed by Dan Daniels, branch manager for Helena Chemicals.

Additional evidence elicited during the plaintiff's case indicated that Pine Island's strawberry and tomato plants arrived from California on October 25, and that the strawberries were planted that day. The tomatoes were planted at some time after that date. There was testimony which established that Benlate can be used prophylactically as early as the first week after planting of tomatoes. If the tomato plants were planted on the same day as the strawberries, or on the next day, such a prophylactic spraying of the tomato plants would have occurred on November 1st or 2nd.

Castillo, 748 So.2d at 1111-12 (footnotes omitted).

The Castillos' expert, Dr. Charles Vyvyan Howard, testified in pretrial depositions that he believed that fetal exposure to benomyl at the concentration of 20 parts per billion (ppb) in the maternal bloodstream would cause microphthalmia in humans based on his conclusions from (1) rat gavage studies; (2) lab experiments on human and rat cells; and (3) the results of dermal exposure testing done by DuPont's own scientist. He testified that he considered epidemiological studies but that those studies were flawed and offered little information.

At the Frye hearing, DuPont and Pine Island moved to exclude Dr. Howard's testimony, arguing that his methodology for determining whether and at what level Benlate could cause birth defects in humans was not generally accepted in the scientific community and thus was inadmissible. The trial court denied DuPont and Pine Island's motion and the expert testimony was admitted.

At the close of evidence at trial, DuPont moved for a directed verdict arguing that the Castillos failed to prove that Benlate is defective and that any such defect proximately caused the microphthalmia. The jury returned a verdict for the child, John Castillo, holding DuPont strictly liable and holding both DuPont and Pine Island negligent. The total award was $4 million, allocating 99.5% against DuPont and .5% against Pine Island.

On appeal, Pine Island raised two issues: (1) that there was no evidence that Benlate was used on the farm in November 1989; and (2) that the Castillos' scientific evidence should not have been admitted into evidence. As to the first issue, the Third District found Chaffin's "admission" that Benlate was used in November 1989 compelling evidence against Pine Island and affirmed the trial court's judgment. As to the second issue, involving the admissibility of the expert scientific testimony, the Third District reversed the jury verdict and determined that the testimony did not meet the test set out in Frye.

DuPont raised four issues, two of which the Third District did not address.¹ The arguments the Third District found persuasive, however, were (1) that the Castillos failed to prove that Mrs. Castillo was exposed to Benlate in their case against DuPont, since Chaffin's admission was not admissible hearsay against DuPont; and (2) the scientific evidence should not have been admitted into evidence under Frye.

An amicus brief was filed by four doctors supporting DuPont's and Pine Island's position.

For the reasons discussed below, we quash the Third District's decision and hold that the trial court properly admitted the Castillos' experts' testimony under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We also hold that even absent Lynn Chaffin's testimony against DuPont, there was enough direct evidence that Mrs. Castillo was exposed to Benlate to support the jury's verdict against DuPont.²

Expert Testimony Under Frye

To determine whether expert testimony is admissible under section 90.702, Florida Statutes (2001), Florida courts follow the test set out in Frye v. United States, 293 F. 1013 (D.C.Cir.1923):

Just when a scientific principle or discovery crosses the line between the experimental and demonstrable states is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

Id. at 1014 (emphasis added). "This test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field." Hadden v. State, 690 So.2d 573, 576 (Fla. 1997).

The proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology. See Murray v. State, 692 So.2d 157, 161 (Fla.1997). The standard of review of a Frye issue is de novo. See Brim v. State, 695 So.2d 268, 275 (Fla.1997); Berry v. CSX Transportation, Inc., 709 So.2d 552, 557 (Fla. 1st DCA 1998). In Berry, we said, "Our de novo review of the Frye issue in these cases includes an examination of three methods of proof: (1) expert testimony, (2) scientific and legal writings, and (3) judicial opinions." 709 So.2d at 557 (citing Flanagan v. State, 586 So.2d 1085, 1112 (Fla. 1st DCA 1991), approved, 625 So.2d 827 (Fla.1993)). Furthermore, the issue of general acceptance is to be made at the time of appeal, rather than at the time of trial. See Hadden, 690 So.2d at 579.

The Castillos' experts testified: (1) that benomyl is a teratogen; and (2) as to the dosage level at which it becomes a teratogen.³ We must consider whether the scientific principles upon which the Castillos' experts based their opinions are...