National Bank of Commerce of El Dorado, Ark. v. Dow Chemical Co., 97-1755

• Citation: 133 F.3d 1132
• Decision Date: 22 January 1998
• Docket Number: No. 97-1755,97-1755
• Parties: NATIONAL BANK OF COMMERCE, OF EL DORADO, ARKANSAS, Guardian of the Estate (only) of Ashley Marie Smits, A Minor; William J. Smits, Jr., Individually, and as Parent and Next Friend of Ashley Marie Smits, A Minor, Appellants, v. DOW CHEMICAL COMPANY; Steam Services, Inc.; Rofan Services, Inc.; EPCO, Inc. of Indiana, doing business as DowElanco, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1132

133 F.3d 1132

NATIONAL BANK OF COMMERCE, OF EL DORADO, ARKANSAS, Guardian

of the Estate (only) of Ashley Marie Smits, A Minor;

William J. Smits, Jr., Individually, and as Parent and Next

Friend of Ashley Marie Smits, A Minor, Appellants, v. DOW CHEMICAL COMPANY; Steam Services, Inc.; Rofan

Services, Inc.; [PUBLISHED] EPCO, Inc. of Indiana,

doing business as DowElanco, Appellees.

No. 97-1755.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 11, 1997.

Decided Jan. 22, 1998.

Bobby Davidson, Little Rock, AR (Bernard Whetston, Kevin Odum and Robert C. Compton, on the brief), for Appellants.

Robert D. MacGill, Indianapolis, IN, argued (Joseph G. Eaton, Stanley C. Fickle and William E. Padgett, Indianapolis, IN, Sammye L. Taylor and Troy A. Price, Little Rock, AR, on the brief) for Appellees Dow Chemical, Rofan Services, Inc. and Epco, Inc.

Michael J. Emerson, Little Rock, AR, argued (Robert L. Henry, III, on the brief), for Steam Services, Inc.

Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

Ashley Smits was born with severe birth defects. During her pregnancy, Ashley's mother had been exposed to Dursban LO (a pesticide) and Firefog 404 (a reoderant). Plaintiffs filed suit against various defendants contending that these chemical agents, either singly or in combination, were the cause of Ashley's abnormalities. Plaintiffs retained experts who were willing to testify that the mother's exposure to Dursban LO and Firefog 404 proximately caused Ashley's birth defects. After extensive discovery, depositions, numerous court hearings, including two full days of testimony, the district court ¹ ruled that the testimony of plaintiffs' experts was not admissible as scientific evidence under Federal Rules of Evidence 702 and 703. Specifically, the court concluded that the plaintiffs had not shown that the proffered testimony had a valid scientific foundation, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), because it was not based on accepted scientific methodology for determining whether a chemical agent can cause birth defects in humans. The district court granted summary judgment for all defendants.

Although we may not agree with the district court's analysis of Daubert in every detail, we find no abuse of discretion. See General Elec. Co. v. Joiner, --- U.S. ----, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Given the...