Case 0:08-md-01916-KAM Document 2558 Entered on FLSD Docket 09/29/2019 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-md-01916-KAM

IN RE: CHIQUITA BRANDS

INTERNATIONAL, INC. ALIEN
TORTS STATUTE AND
SHAREHOLDER DERIVATIVE
LITIGATION
__________________________________________/

This Order relates to:

ATS ACTIONS
__________________________________________/

08-80465-CIV-MARRA (D.C. Action) (Does 1-144)

10-80652-CIV-MARRA (D.C. Action) (Does 1-976)
11-80404-CIV-MARRA (D.C. Action) (Does 1-677)
11-80405-CIV-MARRA (D.C. Action) (Does 1-254)

__________________________________________/

Plaintiffs’ Supplemental Response to Order on Status Conference [DE 2555]

After further research into MDL case law, it appears that the 11th Circuit should hear the

appeals of Ludy Rivas (daughter of Doe 840) and Doe 378, whose cases were dismissed in

summary judgment by this Court. DE 2555 In Plaintiffs Response, DE 2556, we asked the

Court to suggest remand of these cases as well, erroneously arguing that the appeals in the two

dismissed bellwether cases should be also heard by the D.C. Circuit. Id. at 3-4. The 11th Circuit

should hear those appeals.1 However, the other cases brought by Does 1-976, Does 1-677, Does

1
In the event these cases are remanded by the 11 th Circuit back to this Court for further
proceedings, Ludy Rivas and Doe 378 continue trying to obtain admissible evidence from
Colombia. Counsel misunderstood previous correspondence from the fiscalia (national
prosecutor’s office in Colombia) in Ludy Rivas’ case, which appears not to have been resolved
to a final judgment. Mr. Hasbun is expected to testify again in the next few weeks. Apparently,
by repeatedly requesting documents from the fiscalia signed by individuals eligible for
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1-254, and Does 1-1442 should all be remanded to the U.S. District Court for the District of

Columbia, and the D.C. Circuit would hear any appeals of district court decisions in those cases.

According to the practice in other MDL cases, now is the time to remand them.

In In re Food Lion, Inc., Fair Labor Standards Act “Effective Scheduling” Litigation, 73

F.3d 528 (4th Cir. 1996), the MDL court granted the defendant summary judgment in several

actions, and partial summary judgment in others, dismissing the claims of some plaintiffs

entirely, while leaving the claims of others. 73 F.3d at 531–32. The JPML remanded the actions

that had claims remaining. When the dismissed cases were appealed, a divided Fourth Circuit

panel concluded that the MDL court should have entered partial final judgments under Rule

54(b) (rather than Rule 56), and the JPML should have separated the claims of the dismissed

plaintiffs before remand. Id. at 531–33. The Fourth Circuit then invoked the writ of mandamus

to order the JPML to re-transfer the claims the MDL court had dismissed, and the MDL court to

Apostilles, Ludy Rivas and Doe 378’s cases may be on the agenda. We learned this from the
prosecutor while inquiring how we can obtain copies of judicial decisions that are eligible for
Apostilles.
2
The Court may easily decide counsel’s motion to sever Does 1-144 from over 1,000 other cases
subsequently added to that complaint by Attorney Collingsworth and Conrad & Scherer. Neither
responded substantively to the Motion, DE 2373, essentially conceding they have no relationship
with any of these plaintiffs, and neither did anything in the last 12 years to try to establish an
attorney-client relationship. See DE 2396, Attorney Collingsworth’s Opposition and Renewed
Motion for Sanctions. Mr. Collingsworth also argued to remove Doe 46’s case from the
bellwether pool, which was against her interests and should have been recognized as a conflict of
interest.
Counsel has omitted case Does 1-2146 from the caption of this Motion and will not request a
suggestion of remand of that case. To be honest, counsel isn’t licensed to practice law in Ohio,
and will have to pay a rate of about $350 per hour to local counsel. Bringing the cases in the
Does 1-976 complaint to trial will cost hundreds of thousands of dollars, and should be
prioritized since they occurred during a time when the Defendant’s payments were admitted, and
were filed within the general limitations period in D.C. These 2,146 cases should remain in the
MDL in Florida, awaiting the same fate as thousands of others.
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enter final judgment under Rule 54(b) as to those claims. Id. at 532–34.3 This is the procedure

already followed by this Court. What should come next is to remand the claims that were not

subject to the Order or appeal, which is what happened in Food Lion. Although we argued this

in our original Response, at that time we didn’t know this was also what normally happens in

Multi District Litigation at this stage.

It also appears that, after remand, the judge in D.C. District Court should reconsider this

Court’s Rule 54 (b) ruling before the D.C. Circuit decides the same issues. See Moore v. Valder,

65 F.3d 189, 195 n. 9 (D.C. Cir. 1995) (district courts must apply the federal law of their circuit,

requiring reconsideration of interlocutory orders decided in circuit with contrary law, because

stare decisis supersedes law of the case doctrine); In re Korean Air Lines Disaster of Sept. 1,

1983, 829 F.2d 1171, 1172-73 (D.C. Cir. 1987) (holding MDL court properly applied D.C.

Circuit law on federal issue rather than contrary Second Circuit law, even though several cases

had been filed in Second Circuit); see Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)

(“[T]he federal circuit courts are under duties to arrive at their own determination of the merits of

federal questions presented to them.”). Therefore, after remand, Plaintiffs will first ask the D.C.

District Court to reconsider this Court’s Order under D.C. Circuit law, as it applies to the

remanded cases, and to set a discovery schedule for the remanded cases. At the same time, Ludy

Rivas and Doe 378 will appeal the same Order in the 11th Circuit. Although this is not ideal, it

appears the cases will have to be decided according to the laws of the circuits of the trial courts.

3
The Seventh Circuit distinguished this Fourth Circuit decision in Fedex Ground Package Sys.,
Inc. v. United States Judicial Panel Panel on Multidistrict Litig., 662 F.3d 887 (7th Cir. 2011),
noting (1) that it did not read Food Lion to hold “that all MDL cases must be managed to ensure
that all related appeals go to only the circuit with jurisdiction over the transferee court” and (2)
Food Lion (as opposed to Fedex) involved federal law, so only a single uniform law was
involved, which may have affected the analysis. 662 F.3d at 891.

3
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As Plaintiffs already argued in their Response, DE 2556 at 2-3, the issues on appeal are

best categorized as evidentiary or procedural. The forum has an interest in following its own

law. The D.C. District Court shouldn’t follow the 11th Circuit’s precedent on the application of

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to a law enforcement

expert,4 or the evidentiary showing required to survive summary judgment under Anderson v.

Liberty Lobby, 477 U.S. 242 (1986).5

4
Besides this issue, there is also the related one of whether the reliability of the facts relied on by
the expert is a question for the jury. In Kumho Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999), the Supreme Court first applied the Daubert standard to expert testimony from “non-
scientific” expert witnesses. A year later, Rule 702 was amended to adopt the rules in Daubert,
requiring experts to base their opinions on “sufficient” facts and data; offer opinions that are “the
product of reliable principles and methods”; and reliably apply the principles and methods to the
facts of the case. Fed. R. Evid. 702 (2000 Amendments). Nevertheless, even after these
changes, “[t]he soundness of the factual underpinnings of the expert’s analysis and the
correctness of the expert’s conclusions based on that analysis are factual matters to be
determined by the trier of fact.” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 22
(1st Cir. 2011); Manpower, Inc. v. Ins. Co. of Pennsylvania, 732 F.3d 796, 808 (7th Cir. 2013)
(“The reliability of data and assumptions used in applying a methodology is tested by the
adversarial process and determined by the jury; the court’s role is generally limited to assessing
the reliability of the methodology - the framework - of the expert’s analysis.”); Bonner v. ISP
Techs., Inc., 259 F.3d 924, 929 (8th Cir. 2001) (“the factual basis of expert testimony goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party to examine
the factual basis for the opinion in cross-examination.”) Courts continue to rule that “the factual
basis of an expert opinion” is for the jury, unless it “is so fundamentally unsupported that it can
offer no assistance,” Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir. 2002), or the
expert’s opinion is “entirely unsupported” and “pulled … out of thin air,” In re Scrap Metal
Antitrust Litig., 527 F.3d 517, 531 (6th Cir. 2008).
5
Undersigned counsel has no personal bias in favor of the 11th or D.C. Circuits, and at this point
doesn’t know which circuit’s law would be more favorable to the plaintiffs. We do know that
the FBI headquarters is only a few blocks from the D.C. District Court, and that FBI agents
testify there as expert witnesses all the time. Our goal is not to create circuit splits. However,
the minimum showing required under Anderson v. Liberty Lobby, and Plaintiffs’ causation
theory (that “more likely than not” the crime was committed by a person supported by the
Defendant) are also very basic legal questions that the courts of appeal may want to decide for
themselves. In addition, the non-Wolf Plaintiffs, who will dominate the 11th Circuit appeal and
insist on excluding me from any oral argument, as they did before, do not have a law
enforcement officer as an expert witness, let alone the FBI case agent for the underlying criminal
case.
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For these reasons, counsel disagrees that two of the motions held moot by the Court are

actually moot, and is contemporeanously filing renewed motions for a suggestion of remand, and

to disqualify Attorney Collingsworth from representing Does 1-144.

Respectfully submitted,

/s/ Paul Wolf

_______________________
Paul Wolf, DC Bar #480285
Attorney for Plaintiffs
P.O. Box 21840
Washington, DC 20009
(202) 431-6986
paulwolf@yahoo.com

September 29, 2019

Certificate of Service

I hereby certify that on this 29th day of September, 2019, I filed the foregoing document
with the Clerk of the Court using the Court's Electronic Case Filing (ECF) system, which will
send electronic notices to all persons entitled to receive them.

/s/ Paul Wolf

_____________
Paul Wolf