EI DuPONT DE NEMOURS v. Castillo ex rel. Castillo

Citation748 So.2d 1108
Decision Date09 February 2000
Docket Number No. 3D96-2486, No. 3D96-2489.
PartiesE.I. DuPONT DE NEMOURS & CO., INC. and Pine Island Farms, Inc., Appellants, v. John CASTILLO, a Minor By and Through his mother, next friend and natural guardian, Donna CASTILLO, Donna Castillo and Juan Castillo, individually, Appellees.
CourtCourt of Appeal of Florida (US)

Greenberg Traurig and Arthur J. England and Joe N. Unger, Miami; Kirkland & Ellis and Edward W. Warren and Jeffrey Bossert Clark and Christopher Landau; Gaebe, Murphy, Mullen and Antonelli and David Kleinberg, Coral Gables, for appellants.

James L. Ferraro, Miami; Elizabeth Russo, Miami, for appellees.

Before COPE, GERSTEN and SORONDO, JJ.

ON MOTION FOR REHEARING— DENIED

SORONDO, J.

We deny Appellees' Motion for Rehearing, however we withdraw our previous opinion filed February 17, 1999, and substitute the following in its place.

E.I. DuPont De Nemours and Co., Inc. (DuPont) and Pine Island Farms, Inc. (Pine Island) appeal the Final Judgment of the lower court entered on the denial of their motions for judgment notwithstanding the verdict and/or new trial.

John Castillo, a minor, by and through his mother Donna Castillo, and Donna Castillo and Juan Castillo, individually, filed this action against Du Pont and Pine Island in July 1993, alleging that Mrs. Castillo had been exposed to Benlate, an agricultural fungicide manufactured by DuPont, from the "u-pick" field owned by Pine Island in the Castillos' West Kendall neighborhood where Mrs. Castillo walked while pregnant with John. Plaintiffs' case was based on the scientific theory that the mist sprayed in the field, to which Mrs. Castillo had allegedly been exposed, contained Benlate, and that benomyl (the active ingredient in Benlate) entered her bloodstream and caused John's microphthalmia, a rare birth defect involving severely underdeveloped eyes.

As relevant to this appeal, the amended complaint sounded in negligence and strict liability against DuPont and negligence against Pine Island. In support of their theories of liability, plaintiffs proffered the expert testimony of Dr. Charles Howard, a senior lecturer/associate professor at the University of Liverpool in England. In pretrial depositions, Dr. Howard testified that he believed that fetal exposure to benomyl at a concentration of twenty parts per billion in the maternal bloodstream would cause microphthalmia in humans, basing his conclusion on two sources: 1) rat gavage studies and 2) lab experiments on human and rat cells.

Defendants moved before trial to exclude Dr. Howard's testimony on the ground 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 inadmissible. The trial court denied the motion.

A few weeks before trial, plaintiffs' exposure theory changed from exposure through the lungs (inhalation exposure) to exposure through the skin (dermal exposure). At trial, plaintiffs limited their case to a single drenching incident and did not contend that Mrs. Castillo had otherwise been exposed to Benlate during her pregnancy. Dr. Howard provided plaintiffs' causation evidence. Over DuPont's objection, the court allowed plaintiffs to refer at trial to an alleged link between Benlate and unspecified "clusters" of children born without eyes in Great Britain.1 Further, over DuPont's objection, the trial court allowed the plaintiffs to show the jury a 19-minute video entitled "A Day in the Life of John Castillo."2

At the close of the evidence, DuPont moved for a directed verdict arguing that plaintiffs had failed to prove that Benlate is defective and that any such defect proximately caused John's microphthalmia. The jury returned its verdict, holding Du-Pont liable on a strict-liability theory and both DuPont and Pine Island liable on a negligence theory. The jury awarded a total of $4 million in damages, allocating 99.5% against DuPont and .5% against Pine Island. DuPont and Pine Island moved to set aside the verdict and/or for a new trial, which the trial court denied. This appeal followed.

Our analysis will address each defendant's legal arguments individually, but will begin by reviewing the material facts presented by plaintiffs. According to Donna Castillo's trial testimony, she passed by the "u-piek" 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 purchases 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 that when 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.3

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.4

Both DuPont and Pine Island moved for directed verdicts at the conclusion of the plaintiffs' case and now argue that their motions should have been granted. We address their claims individually.

MOTIONS FOR DIRECTED VERDICT
I.

Pine Island Farms, Inc.

There is one additional fact presented against Pine Island, which is significant to our analysis of one of its claims on this issue. In May of 1993, a British reporter, John Ashton, was conducting an investigation into the relationship between Benlate and children born with microphthalmia in Great Britain. He initially called Mrs. Castillo and asked her if she had ever been exposed to Benlate. More specifically, he asked her if she lived on a farm or near farmland. Castillo said she was unaware of any exposure but told Ashton that she lived near a "u-pick" field and advised him of its location. Later that month, Ashton called Chaffin and asked him if Pine Island had sprayed Benlate on the field in question in November of 1989. Ashton testified in deposition published to the jury at trial that Chaffin then told him that Pine Island had sprayed Benlate in November of 1989. Although Chaffin testified at trial that he did not remember any such conversation, his telephone records confirmed an eight minute telephone call originating in London, England in May of 1993. Regardless of the confirmation, Ashton's testimony established prima facie evidence of a party admission which was admissible against Pine Island under section 90.803(18)(d), Florida Statutes (1995).

Pine Island argues that its motion for directed verdict should have been granted because plaintiffs presented insufficient evidence to establish that Mrs. Castillo was sprayed with Benlate, and/or that, even if they did, plaintiffs' scientific evidence did not satisfy the Frye5 test for admissibility and should never have been admitted into evidence. In the absence of such evidence Pine Island claims its motion should have been granted.

As concerns the sufficiency argument, Pine Island posits that in order to conclude that Mrs. Castillo was sprayed with Benlate, the jury would have to stack inferences that Pine Island was in possession of Benlate on November 1 and 2, 1989, that Pine Island was growing tomatoes on the field in question on those two dates, and that Pine Island sprayed Benlate on the days in question. Pine Island argues that such stacking of inferences is impermissible. See Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla.1954)

; Asplundh Tree Experts, Inc. v. Mason, 693 So.2d 44 (Fla. 1st DCA),

review denied, 699 So.2d 1374 (Fla.1997); Reaves v. Armstrong World Indus., Inc., 569 So.2d 1307 (Fla. 4th DCA 1990). This argument, however, ignores the fact that Chaffin's admission to Ashton was not an inference but direct evidence that Benlate was sprayed on the field in November of 1989. Indeed, it is the only direct evidence presented by plaintiffs that Benlate was, in fact, used during the time in question. This evidence was critical, and when considered in conjunction with the testimony of Mrs. Castillo and the other circumstantial evidence presented, constituted sufficient evidence to deny Pine Island's motion for directed verdict on the sufficiency argument.

Pine Island's Frye argument, like Du-Pont's, is more compelling and is addressed below.

II.

E.I. DuPont De Nemours & Company, Inc.

Like Pine Island, DuPont argues that its motion for directed verdict should have been granted. In support of that argument it has presented several grounds in this appeal. First, DuPont argues that plaintiffs failed to prove that Benlate is defective, as they failed to in...

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