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Greenberg Traurig Successfully Represents Mosaic Company in Toxic Tort Matter

TAMPA – May 16, 2018 Greenberg Traurig, P.A Tampa Shareholder David B. Weinstein led a team of attorneys in the firm’s successful representation of Mosaic Fertilizer, LLC, and The Mosaic Company in Williams v. Mosaic Fertilizer. In a published opinion issued this week, the U.S. Court of Appeals for the Eleventh Circuit affirmed the trial court’s decision to grant summary judgment in favor of Mosaic and against the plaintiff on her claims that exposure to emissions from one of Mosaic Fertilizer’s manufacturing facilities had harmed her health and diminished the value of her property. The plaintiff had demanded more than $60 million, but the opinion confirms that she is not entitled to recover anything.

“We are pleased with the Eleventh Circuit’s decision,” said Weinstein, who chairs Greenberg Traurig’s national Environmental & Toxic Tort Litigation Practice. “The allegations against Mosaic were baseless and, as the opinion confirms, Judge Mary S. Scriven’s rulings in the trial court were eminently correct. The appellate court has once again reaffirmed the longstanding principle that scientists must employ the same rigor in the courtroom that they would in the laboratory.”

In addition to Weinstein, Mosaic’s defense team at Greenberg Traurig included Shareholder Christopher Torres; Shareholder Kimberly A. Mello; Associate Danielle M. Diaz; Associate Ryan T. Hopper; and Associate Julie A. Girard.

The Greenberg Traurig team employed a multi-phased strategy to defend against the plaintiff’s claims. First, it removed the action to federal court. It then prevailed on a motion to dismiss the claims against The Mosaic Company, Mosaic Fertilizer’s parent entity. Following that, the team filed a pre-Daubert motion to exclude the plaintiff’s expert witnesses or compel compliant expert disclosures, which resulted in the District Court limiting the plaintiff’s experts’ testimony.

Greenberg Traurig attorneys subsequently filed two Daubert motions and a parallel summary judgment motion challenging the reliability of the plaintiff’s scientific evidence and, consequently, her ability to prove causation. Finally, the team filed a motion in limine to exclude evidence of stigma damages concerning the plaintiff’s property-damage claim. In a pair of well-reasoned orders, the District Court granted the motions and entered judgment in favor of Mosaic. The plaintiff appealed the District Court’s decision to the U.S. Court of Appeals for the Eleventh Circuit.

The Eleventh Circuit heard oral argument on April 19 and, less than a month later, affirmed the District Court in all respects. As to the health-based claims, the three-judge panel emphasized in its May 14 opinion that critical causation testimony from the plaintiff’s expert toxicologist would have been unreliable, in part because the expert had assumed that it is dangerous to be exposed to emissions in concentrations that exceed federal emissions standards. This, the court cautioned, is typically untrue because “regulatory standards often build in considerable cushion in order to account for the most sensitive members of the population and prophylactically protect the public (in other words, they are protective).” Consequently, experts like the toxicologist engaged by the plaintiff in this case cannot reliably assume that exposures to emissions or other substances in concentrations that exceed an environmental regulatory standard are capable of causing harm. As to the property-damage claim, the Eleventh Circuit reiterated that, “despite the general rule that homeowners may testify as to the value of their homes,” property owners cannot offer valuation testimony that is not based on personal knowledge. Because the plaintiff’s claim that Mosaic’s emissions had devalued her home were based on speculation and not personal knowledge, the Eleventh Circuit affirmed entry of judgment in favor of Mosaic.

The Eleventh Circuit also made an important procedural point: the burden of proving the reliability of an expert’s testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., requires “meaningfully” and “squarely” presenting the District Court with the bases of the testimony. The plaintiff’s expert toxicologist had provided a report in which he listed 76 “empirical studies, website references, and regulatory documents” that he claimed supported his opinion, but he had not included any “endnotes, pin cites, or any other explanations as to what information [he had] gained from those references or what sources supported what conclusions.” The Eleventh Circuit held that, to the extent that the expert’s imprecise citation practice limited the District Judge’s ability to assess the reliability of the expert’s opinion, the District Judge did not err in “considering only that which was squarely before” her.

About Greenberg Traurig - Tampa

Greenberg Traurig’s Tampa office represents clients in a broad array of civil and criminal litigation, trial, and appellate practice in state and federal courts—including complex and high-stakes trials—both in Florida and around the country. The Tampa team also regularly represents clients in labor & employment, real estate, environmental, land development, corporate, bankruptcy & creditors’ rights, public finance, tax, and other business planning and transactions. The firm’s Tampa offices work closely with its Orlando office to offer clients multidisciplinary representation in the region, with the firm’s six other Florida offices to provide seamless state-wide representation, and with dozens of Greenberg Traurig offices in the United States and abroad to provide clients with both local expertise and global reach. Six Greenberg Traurig Tampa practices are listed as top-tier by U.S. News–Best Law Firms®. And, members of the Tampa team are recognized in Chambers and Partners USA Guide, The International Who’s Who of Business Lawyers, The Legal 500 United States, Florida Super Lawyers, Florida Trend magazine’s Florida Legal Elite, and Best Lawyers in America.

About Greenberg Traurig, LLP

Greenberg Traurig, LLP (GT) has more than 2,000 attorneys in 38 offices in the United States, Latin America, Europe, Asia, and the Middle East. GT has been recognized for its philanthropic giving, was named the largest firm in the U.S. by Law360 in 2017, and is among the Top 20 on the 2017 Am Law Global 100. Web: Twitter: @GT_Law.