Opposition To Chiquita's Motion To Consolidate Appeals

Case: 19-13926 Date Filed: 11/13/2019 Page: 1 of 36
Case No. 19-13926-C
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________
IN RE: CHIQUITA BRANDS INTERNATONAL, INC.,

ALIEN TORT STATUTE LITIGATION
___________________________________________
On Appeal from the United States District Court

For the Southern District of Florida
No. 08-md-01916
(Nos. 08-80465, 11-80404)
(The Honorable Kenneth A. Marra)
____________________________________________
APPELLANTS DOE 378 AND DOE 840'S OPPOSITION TO APPELLEE'S

MOTION TO CONSOLIDATE APPEALS, AND CROSS-MOTION TO
VACATE AND REMAND TO THE DISTRICT OF COLUMBIA
____________________________________________
Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
Fax n/a
Attorney for Plaintiff-
Appellants-Cross-Appellees
CERTIFICATE OF INTERESTED PERSONS
Counsel certifies that the following is a complete list of the trial judge(s), all
attorneys, persons, associations of persons, firms, partnerships, or corporations
(noted with its stock symbol if publicly listed) that have an interest in the outcome
of the particular case on appeal, including subsidiaries, conglomerates, affiliates,
and parent corporations, and other identifiable legal entities related to a party,
known to Appellants, are as follows:
1. Doe 378, whose identity remains confidential under a Protective Order of
the District Court, and Ludy Rivas Borja, who is the daughter of deceased plaintiff
Doe 840, whose identity also remains confidential under the Order. In addition,
the plaintiffs bring their cases as personal representatives of the estates of the
deceased. They represent other legal heirs with interests, whose identities are
known to the Appellees, but remain confidential under the Protective Order.
2. The other plaintiffs in the complaints filed by undersigned counsel in the
Southern District of Florida, in Case Nos. 08-80465, 10-80652, 11-80404, 11-
80405 and 17-cv-80475. Undersigned counsel represents the legal heirs of
approximately 2,319 wrongful death cases. In addition, there are six other plaintiff
groups with a total of about 7500 "claims" in the MDL, all of whom have an
interest in this appeal.
3. Additional interested parties are:

Agrícola Longaví Limitada
Agrícola Santa Marta Limitada
Agroindustria Santa Rosa de Lima, S.A.
Aguirre, Fernando
Alamo Land Company
Alsama, Ltd.
American Produce Company
Americana de Exportación S.A.
Anacar LDC
Arnold & Porter
Arvelo, José E.
Associated Santa Maria Minerals
B C Systems, Inc.
Baird, Bruce
Bandy, Kevin
Barbush Development Corp.
Bienes Del Rio, S.A.
Blank Rome LLP
BlackRock, Inc. (NYSE: BLK)
Blue Fish Holdings Establishment

Bocas Fruit Co. L.L.C.
In Re: Chiquita Brands Int’l., Inc.
Boies Schiller & Flexner, LLP, Fort Lauderdale
Boies Schiller & Flexner, LLP, Miami
Boies Schiller & Flexner, LLP, New York
Boies Schiller & Flexner, LLP, Orlando
Bronson, Ardith
Brundicorpi S.A.
Cadavid Londoño, Paula
Carrillo, Arturo J.
C.C.A. Fruit Service Company Limited
CB Containers, Inc.
Centro Global de Procesamiento Chiquita, S.R.L.
Charagres, Inc., S.A.
Childs, Robert
Chiquita (Canada) Inc.
Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.
Chiquita Banana Company B.V.
Chiquita Brands International Foundation
Chiquita Brands International Sàrl

Chiquita Brands International, Inc. (NYSE: CQB)
Chiquita Brands L.L.C.
Chiquita Central Europe, s.r.o.
Chiquita Compagnie des Bananes
Chiquita Deutschland GmbH
Chiquita Food Innovation B.V.
Chiquita for Charities
Chiquita Fresh B.V.B.A.
Chiquita Fresh España, S.A.
Chiquita Fresh North America L.L.C.
Chiquita Fruit Bar (Belgium) BVBA
Chiquita Fruit Bar (Germany) GmbH
Chiquita Fruit Bar GmbH
Chiquita Frupac B.V.
Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton
Chiquita Hong Kong Limited
Chiquita International Services Group N.V.
Chiquita Italia, S.p.A.
Chiquita Logistic Services El Salvador Ltda.
Chiquita Logistic Services Guatemala, Limitada

Chiquita Logistic Services Honduras, S.de RL
Chiquita Melon Packers, Inc.
Chiquita Mexico, S. de R.L. de C.V.
Chiquita Nature and Community Foundation
Chiquita Nordic Oy
Chiquita Norway As
Chiquita Poland Spolka Z ograniczona odpowiedzialnoscia
Chiquita Portugal Venda E Comercializaçao De Fruta,

Unipessoal Lda
Chiquita Relief Fund - We Care
Chiquita Shared Services
Chiquita Singapore Pte. Ltd.
Chiquita Slovakia, S.r.o.
Chiquita Sweden AB
Chiquita Tropical Fruit Company B.V.
Chiquita UK Limited
ChiquitaStore.com L.L.C.
Chiriqui Land Company
CILPAC Establishment
Cioffi, Michael
Coast Citrus Distributors Holding Company

Cohen, Millstein, Sellers & Toll, PLLC
Collingsworth, Terrence P.
Compañía Agrícola de Nipe, S.A.
Compañía Agrícola de Rio Tinto
Compañía Agrícola del Guayas
Compañía Agrícola e Industrial Ecuaplantation, S.A.
Compañía Agrícola Sancti-Spiritus, S.A.
Compañía Bananera Atlántica Limitada
Compañía Bananera Guatemateca Independinte, S.A.
Compañía Bananera La Estrella, S.A.
Compañía Bananera Los Laureles, S.A.
Compañía Bananera Monte Blanco, S.A.
Compañía Caronas, S.A.
Compañía Cubana de Navegación Costanera
Compañía Frutera América S.A.
Compañía La Cruz, S.A.
Compañía Mundimar, S.A.
Compañía Productos Agrícolas de Chiapas, S.A. de C.V.
Compañía Tropical de Seguros, S.A.
Conrad & Scherer LLP

Costa Frut S.A.C.
Covington & Burling LLP
Danone Chiquita Fruits SAS
Dante, Frank
Davies, Patrick
De La Calle Restrepo, José Miguel
De La Calle Londoño y Posada Abogados
DeLeon, John
Dimensional Fund Advisors LP
DLA Piper
Duraiswamy, Shankar
Dyer, Karen C.
Earthrights, International, Inc.
Exportadora Chiquita - Chile Ltda.
Exportadora de Frutas Frescas Ltda.
Financiera Agro-Exportaciones Limitada
Financiera Bananera Limitada
FMR LLC
Fresh Express Incorporated
Fresh Holding C.V.

Fresh International Corp.
Friedheim, Cyrus
Frutas Elegantes, S. de R.L. de C.V.
Fundación Para El Desarrollo de Comunidades Sostenibles en el

Valle de Sula
G & V Farms, LLC
G W F Management Services Ltd.
Garland, James
Girardi, Thomas V.
Gould, Kimberly
Gravante, Jr., Nicholas A.
Great White Fleet Liner Services Ltd.
Great White Fleet Ltd.
Green, James K.
Guralnick, Ronald S.
Hall, John
Heaton Holdings Ltd.
Heli Abel Torrado y Asociados
Hemisphere XII Investors Limited
Hills, Roderick, the Estate of
Hospital La Lima, S.A. de C.V.

Ilara Holdings, Inc.
Inversiones Huemul Limitada
James K. Green, P.A.
Jimenez Train, Magda M.
Jones, Foster, Johnston & Stubbs, P.A.
Jones, Stanton
Keiser, Charles
King, William B.
Kistinger, Robert
Lack, Walter J.
Law Firm of Jonathan C. Reiter
Law Offices of Chavez-DeLeon
Leon, The Honorable Richard J.
Markman, Ligia
Marra, The Honorable Kenneth A.
Martin, David
Martinez Resly, Jaclyn
McCawley, Sigrid S.
Mosier, Mark
Mozabanana, Lda.
Olson, Robert
O'Melveny & Meyers
Ordman, John
Parker Waichman LLP
Philips, Layn
Prías Cadavid Abogados
Prías, Juan Carlos
Priedheim, Alissa
Procesados IQF, S.A. de C.V.
Processed Fruit Ingredients, BVBA
Promotion et Developpement de la Culture Bananiere
Puerto Armuelles Fruit Co., Ltd.
Rapp, Cristopher
Reiter, Jonathan C.
Ronald Guralnick, P.A.
Scarola, Jack
Searcy Denney Scarola Barnhart & Shipley, P.A.
Seguridad Colosal, S.A.
Servicios Chiquita Chile Limitada
Servicios de Logística Chiquita, S.A.

Servicios Logísticos Chiquita, S.R.L
Servicios Proem Limitada
Silbert, Earl
Skinner, William
Sperling, Jonathan
Spiers N.V.
Sprague, Ashley M.
St. James Investments, Inc.
Stewart, Thomas
Stubbs, Sidney
Tela Railroad Company Ltd.
The Vanguard Group
TransFRESH Corporation
Tsacalis, William
UNIPO G.V., S.A.
V.F. Transportation, L.L.C.
Verdelli Farms, Inc.
Western Commercial International Ltd.
Wichmann, William J.
Wiesner & Asociados Ltda. Abogados

Wiesner, Eduardo A.
Wilkins, Robert
Willkie Farr & Gallagher
Wolf, Paul
Wolosky, Lee S.
Zack, Stephen N
Zhejiang Chiquita-Haitong Food Company Limited
Zuleta, Alberto
Certification
I hereby certify that to the best of my knowledge, the above is a complete

list of persons having an interest in this case.
/s/ Paul Wolf

________________________
Paul Wolf, D.C. Bar #480285
Attorney for Appellants
Doe 378 and Ludy Rivas Borja
November 12, 2019

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................... i
TABLE OF AUTHORITIES .............................................................. ii
FACTUAL SUMMARY .................................................................... 2
SUMMARY OF ARGUMENT .......................................................... 6
ARGUMENT ...................................................................................... 8
I. It would be more efficient for the court of appeals of the

trial court to decide these two appeals. ................................ 8
A. The trial court has a duty to re-examine the

issues according to the law of its own circuit. .......... 8
II. Doe 378 and 840's theory of the case is different from
that of the non-Wolf Appellants. ......................................... 10
A. The Celotex, Liberty Lobby and Matushita cases.... 11
B. Neither the "market share" theory nor products

liability jurisprudence applies................................... 14
III. These appeals are different because they are supported

by the expert testimony of a social worker and an FBI
agent who investigated the underlying criminal case. ........ 15
CONCLUSION .................................................................................... 18
i
TABLE OF AUTHORITIES
CASES
Ackert v. Bryan, 299 F.2d 65 (2d Cir. 1962) .......................................... 9
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ......................... 11-12
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .......................... 12
Blaski v. Hoffman, 260 F.2d 317 (7th Cir. 1958),

aff'd, 363 U.S. 335 (1960) ........................................................................ 8
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................... 11-12, 14
Christianson v. Colt Indus., 486 U.S. 800 (1988) .................................... 1
DeLaventura v. Columbia Acorn Trust,

417 F.Supp.2d 147 (D.Mass. 2006) ......................................................... 9
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) .......................................................................... 10, 14, 15
Drummond Co. v. Collingsworth, 816 F.3d 1319 (2014) ........................ 5-6
Gelboim v. Bank of Am. Corp.,

574 U.S. 405 (2015) ................................................................................. 3,7
Hendrix v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010) ...................... 14
In re Coordinated Pretrial Proceedings in Antibiotic

Antitrust Actions, 538 F.2d 180 (8th Cir. 1976) ..................................... 9
In re Nissan Motor Corp. Antitrust Lit.,

471 F.Supp. 754 (SDFL 1979) ................................................................ 7
In re Patenaude, 210 F.3d 135 (3rd Cir. 2000) ........................................ 6
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ............................ 15
ii
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U.S. 26 (1998) .................................................................................. 3,7
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ................................................................................ 12
Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995) .................................... 9
Menowitz v. Brown, 991 F.2d 36 (2nd Cir. 1993) ................................ 9
Newsweek v. United States Postal Serv., 663 F.2d 1186 (2nd Cir.
1981), aff'd sub nom. National Ass'n of Greeting Card Publishers
v. United States Postal Serv., 103 S. Ct. 2717 (1983) ............................ 9
U.S. ex rel Pogue v. Diabetes Treatment Centers of America, Inc.,

238 F.Supp. 270 (D.D.C. 2002). .............................................................. 10
STATUTES
28 USC §1291 .......................................................................................... 4
28 USC §1292 .......................................................................................... 3
28 USC §1350 .......................................................................................... 5
28 USC §1407 .......................................................................................... 6
28 USC §1651(a) ..................................................................................... 1
PROCEDURAL RULES
Federal Rule of Civil Procedure 12(b)(6) ................................................ 12
Federal Rule of Civil Procedure 56 ......................................................... 3,12
Federal Rule of Appellate Procedure 28 ................................................. 1
Federal Rule of Appellate Procedure 28 ................................................. 6
Local Rule 12-2 ....................................................................................... 6
iii
Internal Operating Procedure 7 to LR 29 ................................................ 6
OTHER
Richard L. Marcus, Conflicts Among Circuits and Transfers

Within the Federal Judicial System, Yale Law Journal, Vol. 93:
677 (1984) ................................................................................................ 9
iv
Appellants Doe 378 and Ludy Rivas Borja (hereinafter "Doe 840")1 oppose
Appellee's Motion to Consolidate their Appeals with the others, or to alter the
deadlines and page limits set forth in the Federal Rules of Appellate Procedure. In
response, pursuant to Federal Rule of Appellate Procedure ("FRAP") 27, Does 378
and 840 make a Cross-Motion to Vacate the District Court's Order as it applies to
them, and order the District Court to remand these two cases back to the D.C.
District Court, along with the other plaintiffs in their complaints. 2 The Appellee,
Chiquita Brands International, Inc. (hereinafter "Chiquita"), opposes the Cross-
Motion. Counsel for "Non-Wolf" Appellants state they take no position on the
1
The use of pseudonyms is irrelevant to this Motion, but is explained for the sake
of completeness. When the District Court ordered that plaintiffs may no longer
proceed anonymously, Ms. Rivas Borja disclosed her name on the record in a
motion to substitute herself for her mother, Doe 840, who had just died. An appeal
was filed, and the status quo of confidentiality was maintained during the appeal.
See Appeal No. 19-11494. This applies to Doe 378, who had not yet disclosed her
name when the order maintaining the status quo went into effect. The Appellants
will be referred to as Doe 378 and Doe 840 herein, to make the brief easier to read.
2
It appears to be within the inherent power of the Court to certify questions
directly to another Circuit, avoiding the need to vacate the District Court's Order.
This occurs in the context of administrative and patent law, where transfers are
sometimes made to the Federal Circuit Court of Appeals from another Circuit
Court. See Christianson v. Colt Indus., 486 U.S. 800 (1988). If the issues on
appeal involved the interpretation of state law, certification would normally be to
the highest court in the state. However, although this is a diversity case, the issues
on appeal concern the standard for summary judgment, and the use of
circumstantial evidence supported by expert testimony to meet this standard, which
are questions of federal law. This Court has mandamus jurisdiction over the JPML
pursuant to 28 USC §1407(e) and 28 USC §1651(a).
1
Cross-Motion, so long as neither substantive nor procedural issues interfere with
the independent disposition of their claims.3
FACTUAL SUMMARY
The MDL arises from a criminal prosecution in the U.S. District Court for
the District of Columbia. See Case #07-cr-055 (RCL). Chiquita pled guilty to
paying millions of dollars to a Colombian terrorist group, which is a federal crime.
Id. This case began in June of 2007, when undersigned counsel filed the first
complaint for 144 plaintiffs in the U.S. District Court for the District of Columbia.
A few years later, Doe 378 and Doe 840 filed their cases in D.C. as well. Now that
more than 12 years have passed, there are more than 7,500 claims filed in five
different district courts, about half by undersigned counsel, and the other half filed
by six "non-Wolf" counsel. 4 There are more than 2,600 docket entries in the MDL
docket. Six bellwether cases were set to go to trial two weeks ago, on October 28,
3
This was communicated to me in writing by email. However, on November 12,
2019, Mr. Scarola entered an appearance in this appeal without explanation,
appearing on behalf of Appellants in another appeal.
4
The District Court determined a method for counting cases (rather than claims),
with each case being an incident with a separate injury, most of which have
multiple claimants, or plaintiffs. DE 841. In each version of the Global Scheduling
Order, including the one in force, DE 2122, the Plaintiffs have been ordered to
disclose the total number of cases. Undersigned counsel does so all the time, and
has about 2,146 cases, in addition to the 173 cases brought by the first 144
plaintiffs, the representation of which are in dispute, with a motion pending in
District Court. The non-Wolf Plaintiffs have never complied with these orders to
disclose the total number of cases they represent. On information and belief, it's
because they represent less than half of the total number of cases. The non-Wolf
plaintiffs have never responded to requests to vote, as ordered in DE 841.
2
2019. See Amended Global Scheduling Order, DE 2122 5 at 6. However, on July
1, 2019, the District Court sua sponte directed the Appellants to submit
supplemental briefing on Chiquita's hearsay challenges to their proffered causation
evidence, pursuant to FRCP 56(c)(2). DE 2499. After reviewing the parties'
responses, the District Court dismissed all twelve bellwether cases on September 5,
2019. DE 2251. This is the Order on appeal.
On September 25, 2019, the District Court ordered the parties to submit their
positions in writing on how the case should proceed. DE 2555. Undersigned
counsel's submission may be found at DE 2556, the non-Wolf Appellants at DE
2557, and Chiquita's response at DE 2562. Essentially, the plaintiffs wanted to
appeal the order, and the defendants wanted the district court to continue
dismissing more cases. On September 29, 2019, Appellants filed a Renewed
Motion to Remand pursuant to Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26 (1998). See Exhibit 5, attached hereto.
A status conference was held in District Court on October 1, 2019. At the
status conference, the District Court asked the parties to brief the Supreme Court's
decision in Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015), and whether a
dismissed bellwether plaintiff may appeal in this situation, in the absence of
certification pursuant to 28 USC §1292. Without deciding whether it was needed,
5
This is a reference to Docket Entry #2122 in the MDL docket below, and the
abbreviation used by all parties to refer to filings in District Court.
3
the District Court left its certification for interlocutory review in place. On
October 3, 2019, Does 378 and 840 filed a Notice of Appeal pursuant to 28 USC
§1291. DE 2568. A few days later, other Appellants filed their own notices of
appeal, and docketed separately.
After the Status Conference, the District Court denied Appellants Renewed
Motion to Remand. The briefs for this motion are attached as exhibits hereto, with
the Motion attached as Exhibit 5, Chiquita's Opposition attached as Exhibit 6, and
Appellants' Reply (hereinafter "Reply") as Exhibit 7. On November 5, 2019, the
District Court denied the motion, without addressing the legal arguments made in
Appellants' Reply. See Order, Exhibit 8, and Reply, Exhibit 7, attached hereto. 6
Undersigned counsel intends to move the District Court to reconsider this Order on
the basis of the arguments in the Reply, but in any event, they are not being raised
for the first time on appeal.
6
The District Court found that "all parties will benefit from guidance from the
Eleventh Circuit on the evidentiary issues implicated by this Court’s threshold
partial summary order." Order, DE 2601 at 7. However, the real issue on appeal
isn't any particular evidentiary ruling, of which there are dozens, but the summary
judgment standard itself, whether expert witnesses can be used to explain
circumstantial evidence to prove an element of a tort to a "more likely than not"
standard, and whether the District Court should have drawn any inferences in
Appellants' favor. The District Court also relied on the fact that it has not yet
decided the pending motions for summary and partial summary judgment. Id. The
first trials were supposed to be two weeks ago. In addition, as we argued in our
Reply, see Exhibit 7, the District Court may still decide the common motions,
which are independent of this appeal. The other Appellants didn't join in the
Negligence Per Se motion, which is argued based on D.C. tort law.
4
This is not the first interlocutory appeal in this case. The Court decided
another appeal about the application of the Alien Tort Statute in Case 12-14898.
Undersigned counsel was excluded from Oral Argument in that appeal, based on
the false representations of the same counsel trying to prevent me from filing an
appellate brief now. See 11th Circuit Order, Exhibit 1, attached hereto. The Court
assigned the 15 minutes allowed to the appellants to Attorney Paul Hoffman, who
used the oportunity to pursue his own agenda to benefit his other Alien Tort Statute
cases. The 11th Circuit ruled on Mr. Hoffman's motion the next day, before
undersigned counsel could even file anything. See Exhibit 2 attached hereto,
describing undersigned counsel as a "hold-out," and omitting mention that I appear
to represent the majority of the plaintiffs in the MDL. Id. at 4. The dispute
continued over the next year, see Exhibit 3 at 1 ("Despite Mr. Hoffman's
declaration that he is lead counsel in the MDL, the District Court has never
recognized him as such.") and Exhibit 4 at 4 ("it is the intention of those who have
been individually and collectively defamed by Mr. Wolf to address his false
accusations in an appropriate forum"). This is the appropriate forum, and another
opportunity for them to address the allegedly false accusations.
The non-Wolf attorneys are no strangers to this Court, due to several appeals
in the Drummond case, which overlaps significantly with the witness bribery in
thie instant case. See Drummond Co. v. Collingsworth, 816 F.3d 1319, 1328
5
(2014) ("Given the district court judge's explanation and his stated intent, we
remand the case to the court so that Scarola can assert any work product privilege
he may have on a specific, item-by-item basis..."); see generally Drummond v.
Collingsworth, 15-cv-506 (NDAL) (RICO case).
The Motion seeks to prevent me from filing an appellate brief, even though I
probably respresent most of the Appellants, and filed the first Notice of Appeal.7
As the late baseball coach Yogi Berra once said, it's deja vu all over again.
SUMMARY OF ARGUMENT
Local Rule 12-2 permits the clerk, sua sponte, to consolidate appeals either
when required by statute, or in the interest of judicial economy, such as when
multiple appeals raise the same or similar issues. 11th Cir. R. 12-2. The main
point of this brief is that consolidation of appeals isn't in the interest of judicial
economy. Remanding the cases back to the District of Columbia is.
The Appellants' cases were excluded from the bellwether pool of cases set
for trial in the Southern District of Florida, and will not go to trial in Florida. They
7
FRAP 28(i) provides for multiple appellants' briefs, and for appellants to join in
parts of other appellants' arguments and briefs. In addtion, I filed the first Notice
of Appeal. The Court's Internal Operating Procedure #7 to Local Rule 28 states:
Briefs in Consolidated Cases and Appeals. Unless the parties otherwise

agree or the court otherwise orders, the party who filed the first notice of
appeal shall be deemed the appellant for purposes of FRAP 28, 30, and 31
and the accompanying circuit rules. (emphasis added)
6
are supported by different types of experts than those of the non-Wolf Appellants,
and make different legal arguments. According to D.C. choice of laws rules, D.C.
tort law should apply to their cases, including D.C.'s negligence per se rule.
Discovery on common issues has concluded, there is no further benefit to
coordinated proceedings in the transferee court, and the cases are ripe for remand.8
Even if the issues and evidence were similar, this appeal wouldn't be binding
authority on cases brought to trial in the District of Columbia. It only binds Doe
378 and Doe 840, whose cases were dismissed in summary judgment, but would
go to trial in the District of Columbia if they prevailed in this appeal.9 That court
8
See Reply, Exhibit 7 attached hereto, at 14. When passing the MDL Transfer
Statute, 28 USC §1407, Congress found that it would be desirable for "local"
discovery in individual cases to be conducted in the transferee districts after
remand. In re Patenaude, 210 F.3d 135, 144-145 (3rd Cir. 2000).
9
"Cases consolidated for MDL pretrial proceedings ordinarily retain their separate
identities, so an order disposing of one of the discrete cases in its entirety should
qualify under §1291 as an appealable final decision. Section 1407 refers to
individual 'actions' which may be transferred to a single district court, not to any
monolithic multidistrict 'action' created by transfer." Gelboim v. Bank of Am.
Corp., 574 U.S. 405 (2015), citing Lexecon Inc. v. Milberg Weiss Bershad Hynes
& Lerach, 523 U. S. 26, 37 (1998) (§1407 doesn't “imbu[e] transferred actions with
some new and distinctive ... character”); In re Nissan Motor Corp. Antitrust Lit.,
471 F.Supp. 754 (SDFL 1979) (mere fact that cases were transferred for
coordinated or consolidated pretrial proceedings didn't make parties to one suit
parties to another for res judicata purposes)
Here, the cases are not consolidated, making an even stronger case than in
Gelboim, where the plaintiff was effectively removed from the litigation, although
his case was consolidated with others. Appellants argued below that the District
Court retains jurisdiction over the non-bellwether cases during this appeal,
including jurisdiction to remand other cases back to D.C. while this appeal is being
7
would have the duty to reconsider issues of federal law according to the law of its
own circuit. Then that order would be appealed to the D.C. Circuit. Why do so
many courts need to issue advisory opinions? It would be more efficient for them
to decide the questions now. The way to do that is to vacate the Order, and order
that the cases be remanded back to D.C.
ARGUMENT
I. It would be more efficient for the court of appeals of the trial court to
decide these two appeals.
What is proposed in this Cross-Motion is the most efficient way to proceed
with the appeal. It would be less efficient to wait for advisory opinions based on
11th Circuit law, which isn't binding. The Appellants also make different
arguments than the others, because the circumstantial evidence in their cases is
explained by social worker and law enforcement experts.
A. The trial court has a duty to re-examine the issues according to

the law of its own circuit.
The District Courts have a duty to re-examine legal issues in transferred
cases according to the law of their own circuits. Blaski v. Hoffman, 260 F.2d 317,
322 (7th Cir. 1958) ("we think the decision of the Fifth Circuit in this matter is
erroneous. Such being the case, we are under no more obligation to follow it as the
law of the case than that Circuit would be to follow what it considers an erroneous
decided. Exhibit 7. At the same time, Doe 840 and Doe 378 are requesting their
appeals be decided by the D.C. Circuit.
8
decision by this court."), aff'd, 363 U.S. 335 (1960); Newsweek v. United States
Postal Serv., 663 F.2d 1186, 1196 (2nd Cir. 1981) (2nd Cir. rejecting D.C. Cir.'s
interpretation of 39 U.S.C. § 3622(b)), aff'd sub nom. National Ass'n of Greeting
Card Publishers v. United States Postal Serv., 103 S. Ct. 2717 (1983); 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 the law of the
case doctrine); Menowitz v. Brown, 991 F.2d 36, 40 (2nd Cir. 1993) (“the federal
circuit courts are under duties to arrive at their own determination of the merits of
federal questions presented to them.”); cf. Ackert v. Bryan, 299 F.2d 65 (2d Cir.
1962) (refusing to reconsider because no "real conflict" of laws was presented); see
Richard L. Marcus, Conflicts Among Circuits and Transfers Within the Federal
Judicial System, Yale Law Journal, Vol. 93: 677, 701 (1984); DeLaventura v.
Columbia Acorn Trust, 417 F.Supp.2d 147, 150 (D.Mass. 2006) (criticizing the
emergence of a "settlement culture" in multi district litigation).
Any order or mandate of the 11th Circuit will be directed to the transferee
court, which is not the trial court. See In re Coordinated Pretrial Proceedings in
Antibiotic Antitrust Actions, 538 F.2d 180, 196 (8th Cir. 1976) (court of appeals
reversed transferee district court's grant of motion for summary judgment). The
District Court had jurisdiction to dismiss these cases in summary judgment, and
9
that Order is appealable to this Court. The Order should be vacated, though, not
for lack of jurisdiction, but because the issues should be decided by the trial court.
For example, the appeal of an issue related to a deposition is heard by the court of
appeals for the district where the deposition was taken. U.S. ex rel Pogue v.
Diabetes Treatment Centers of America, Inc., 238 F.Supp. 270, 276 (D.D.C. 2002).
This is because of the need for uniformity in decisions on depositions within each
of the circuits. Id. The same logic applies to trial testimony and rulings on
evidence for trial.
II. Doe 378 and 840's theory of the case is different from that of the non-
Wolf Appellants.
The Appellants Doe 378 and Doe 840 have identified three questions
presented in this appeal: (1) whether the District Court erred by finding the
summary judgment record insufficient to support a jury verdict in Appellants'
favor; (2) whether the District Court erred by requiring Appellants to know the
precise identity of the killers, when all they had to show was that the person who
caused Appellants injuries was supported by the Appellee; and (3) whether the
District Court erred in applying the Daubert standard to a law enforcement expert.
See Civil Appeal Statement at 2.
The issues are intertwined, and are about the Appellants' theory of the case,
which has always differed from that of the non-Wolf Appellants. In our view, the
plaintiffs need only show that persons financially supported by Chiquita "more
10
likely than not" committed the murders. This is the civil standard for the causation-
in-fact element of negligence. It is no different from any other civil case where the
defendant claims he is not the person who committed the crime. See e.g. Rufo v.
Simpson, 103 Cal. Rptr. 2d 492, 86 Cal. App. 4th 573 (2001) (O.J. Simpson found
not guilty of murder beyond a reasonable doubt in criminal case, and then liable in
a civil case, partly on the basis of expert testimony matching a footprint to one of
his shoes, and despite a bloody glove found at the crime scene being too small to
fit on Simpson's hand). "I didn't do this" is a common defense in civil cases, where
causation - in this case whether the paramilitaries committed the murder - need
only be proven by a preponderance of the evidence.
One thing that distinguishes this from the O.J. Simpson case, though, is that
Chiquita pled guilty to the underlying offense. Appellants filed a Motion for
Partial Summary Judgment for Negligence Per Se, which is attached hereto as
Exhibit 9. Chiquita's overall liability should be established as a matter of law. The
District Court hasn't ruled on it. It is based on D.C. tort law. D.C. has the
strongest interest in enforcing federal laws making financing terrorist organizations
a crime. That's why the criminal prosecution occurred here.
A. The Celotex, Liberty Lobby and Matushita cases.
This appeal is about an issue of great importance to both the 11th and DC
Circuits: the threshold for having one's case heard by a jury. The often-cited
11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), frames the question from
the perspective of a court of appeals: would a jury verdict in plaintiffs favor, based
just on the evidence proffered in summary judgment, be sustained on appeal?
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), 15 asbestos manufacturers
were sued by a plaintiff who had no evidence of which one made the asbestos he
was exposed to. The Court established the standard that the plaintiffs had the
burden to produce at least some evidence that Celotex had made the asbestos,
which they had not done, and that the movants didn't have any burden. The instant
case is unlike Celotex, because there was only one paramilitary group operating
when and when these murders occurred. The circumstantial evidence tends to
show whether each was a war crime, or a common crime.
In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986),
20 Japanese manufacturors were sued for allegedly fixing prices of computer parts,
such that televisions were sold at artifically low prices in the United States in order
to drive American companies out of business. As in the Twombly case decided 20
years later in the context of Rule 12, 10 the problem was proving the agreement in a
conspiracy, where all that could be shown was that 20 different companies were
losing money. The Court found it "implausible" that they would all do so without
10
The standards for Rules 12 and 56 are the same. While the Twombly case was
considered a drastic change in the law at the time, it shouldn't have been, since the
plausibility standard was taken from Matushita.
12
some other motive. "It follows from these settled principles that, if the factual
context renders respondents' claim implausible -- if the claim is one that simply
makes no economic sense -- respondents must come forward with more persuasive
evidence to support their claim than would otherwise be necessary." 475 U.S. at
587. The Court acknowledged that "[o]n summary judgment, the inferences to be
drawn from the underlying facts . . . must be viewed in the light most favorable to
the party opposing the motion," id. at 587-588, quoting United States v. Diebold,
Inc., 369 U.S. 654, 369 U. S. 655 (1962), but that antitrust law limited the range of
permissible inferences from ambiguous evidence in a § 1 case. Id. Emphasizing
the narrow range of inferences permitted in antitrust cases, the Court required
plaintiffs to come forward with evidence "that tends to exclude the possibility" that
the alleged conspirators acted independently, or that the inference of a conspiracy
was reasonable in light of other competing inferences. Id.
Here, the instant case isn't based on antitrust law, and the District Court
should draw all reasonable inferences in Appellants' favor. The inference that a
group of five men with machine guns who arrive in the middle of the night and
abduct and kill a soldier home on leave, were in fact the paramilitaries, is perfectly
reasonable. It is also reasonable to infer that a person found shot in the back at a
paramilitary checkpoint was killed by them. Their death certificates show where,
13
when and how they were killed. 11 The Appellants have other evidence particular
to each case, but all of their Colombian government documents were excluded as
hearsay. They certainly have more evidence than any of the plaintiffs in the
Celotex line of cases.
B. Neither the "market share" theory nor products liability

jurisprudence applies.
The District Court compared this case to the "market share" theory, which
applies when multiple manufacturers make a fungible product, but conceded that it
wasn't a very good fit. Order, DE 2551 at 65. Products liability cases dominate
multi-district litigation, and are responsible for many of the precedents in this
circuit, but are not similar at all.12 As Appellants argue in more detail in the Reply
to Renewed Motion to Remand, see Exhibit 7, the tests for whether a certain
chemical or drug causes a certain illness are based on criteria used in the
pharmaceutical industry, and are not generally applicable to social workers and law
enforcement officers. The Supreme Court has held that to be qualified as experts
11
These murders happened 15-20 years ago in the context of thousands of people
being killed the same way, in a small geographic area, in a few years time. The
Appellants have collected the evidence that is available, but even the autopsy
reports can't be used, since the coroners who wrote them could be located.
12
The Daubert jurisprudence of the Eleventh Circuit mostly involves medical
injuries alleged to have arisen from the use of defective products. Hendrix v.
Evenflo Co., 609 F.3d 1183 (11th Cir. 2010). As far as counsel is aware, it has
never been applied in any other context.
14
under Daubert, their work should meet the standards used in their own professional
communities. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
III. These appeals are different because they are supported by the expert
testimony of a social worker and the FBI agent who investigated the
underlying criminal case.
Appellants Doe 378 and Doe 840 have better experts than the other
Appellants, including (1) an employee of the Colombian aid agency Acción Social,
which qualifies and pays benefits to war crimes victims, and (2) an FBI agent (now
retired) who was one of the principal investigators in the underlying criminal case.
The non-Wolf Appellants' experts are American university professors who study
the Colombian conflict. They are properly considered as scientific experts under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The FBI
agent and social worker are in a different category.
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court
upheld the application of the Daubert standard to expert testimony from "non-
scientific" experts. For them, the standard is that their work must meet the
standards used in their respective professional communities. Id. While double-
blind experiments and dose-response curves may be appropriate to prove whether a
certain chemical causes an illness, the methods used by law enforcement officers
and social workers aren't normally quantitative or susceptible to statistical analysis.
15
The aid agency declares one person a victim, and awards them a benefit,
while denying a benefit to someone else, based on its own reasons and goals. Its
determinations are reliable because they are unrelated to this case, and to some
degree, because Accion Social is funded by USAID, and under scrutiny not to
misappropriate funds. Its correspondence is reliable for the same reasons that any
business records are.
Likewise, the FBI agent's use of circumstantial and modus operandi
evidence to prove that it's "more likely than not" that the paramilitaries committed
a particular murder, is like the probable cause standard used by law enforcement
officers to apply for an arrest or search warrant. 13 This is just an analogy, but a
useful one. For example, in an application for a search warrant, an officer typically
analyzes circumstantial evidence supported by their own affidavit, about subjects
like code words, encrypted phones, offshore bank accounts, and how they relate to
criminal activity. There is a legal controversy over the constitutionality of so-
called "drug courier profiles," and whether behaviors like buying an airplane ticket
at the last minute could be reasonable suspicion or probable cause to stop, search,
or arrest a person. The Appellants don't argue that the probable cause standard in
13
If a police officer came into court with a death certificate, an autopsy report
showing nine bullet wounds, and five eyewitnesses to the victim's abduction who
recognized one of them, would this be probable cause to issue a search warrant for
the suspect's home? Of course it would. The Appellants' theory of their burden of
proof is that they have to prove that paramilitaries paid by Chiquita probably
committed a particular murder. In other words, that it was more likely than not.
16
criminal law applies. However, it makes even less sense to apply products liability
law. Ultimately, the legal issue is whether the Plaintiffs, with their circumstantial
evidence and experts to explain it, have made a prima facie showing, and will be
allowed to make their cases to a jury.
A redacted version of the Expert Report of Agent Ortega is attached hereto
as Exhibit 10. In it, he explains the paramilitaries' control over the Urabá region of
Colombia at the time of the murders of Doe 378 and 840, and the circumstantial
evidence that distinguishes war crimes from common crimes, including the use of
machine guns, camoflage uniforms, the torture and disposition of the victims'
bodies, and other modus operandi evidence. The full version of the report, which
analyzes the cases of Doe 378 and 840 in detail, will be filed in Appellants' Sealed
Appendix. In the case of Doe 840, a group of men on motorcycles with machine
guns arrived in the middle of the night to abduct a soldier at home on leave to visit
his mother. One of the abductors was recognized by the victim's family, who
named him and accuse him of being a paramilitary. A few minutes later, the
victim was taken two blocks away and shot. The family were recognized as war
crimes victims and paid about US $10,000. In Doe 378's case, the victim was shot
in the back near a paramilitary checkpoint for ignoring a curfew. Does 378 and
840 have various Colombian government records, such as autopsy and police
reports, death certificates, and checks and letters showing they were compensated
17
as war crimes victims. Unfortunately, all of the Colombian government records
were excluded as hearsay.
The District Court didn't draw any inferences in Appellants' favor.
According to the District Court, Appellants argue that "the existence of an AUC
connection to each death may therefore be inferred on this circumstantial evidence
alone." Order at 65. This disregards the role of the Appellant's expert, which is to
explain why this evidence shows that more likely than not, the paramilitaries
committed the murder. This is critical to this appeal, and has nothing to do with
the other Appellants.
Conclusion
The Court should deny the motion to consolidate the appeals, since it would
deprive counsel for the majority of the Appellants of the right to be heard. The
same Movants were successful in excluding me from oral argument in the previous
interlocutory appeal in this case. In addition, the cases of Does 378 and Doe 840
should be returned to the D.C. District Court. This is most easily done by vacating
the Order as it applies to these two appeals, with an instruction to remand the
complaints back to D.C.
Respectfully submitted,
/s/ Paul Wolf

___________________________
Paul Wolf, DC Bar #480285
Attorney for Doe 378 and Doe 840
18
P.O. Box 21840

Washington, D.C. 20009
(202) 431-6986
Fax: n/a
paulwolf@yahoo.com
November 13, 2019
Certificate of Service
I hereby certify, that on this 13th of November, I filed the foregoing Motion
and accompanying exhibits with the clerk of the court using the Court's Electronic
Case Filing (ECF) system, which will send notices to all counsel entering
appearances in this case.
/s/ Paul Wolf
_______________
Paul Wolf
Certificate of Compliance
Pursuant to FRAP 32(g)(1), I hereby certify that this motion complies with
the type-limitation of 5,200 words, and contains 5,110 words, excluding the cover,
tables of contents and authorities, and certifications.
/s/ Paul Wolf

_______________
Paul Wolf
19

Opposition To Chiquita's Motion To Consolidate Appeals

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Case: 19-13926 Date Filed: 11/13/2019 Page: 1 of 36

Case No. 19-13926-C

UNITED STATES COURT OF APPEALS

IN RE: CHIQUITA BRANDS INTERNATONAL, INC.,

On Appeal from the United States District Court

APPELLANTS DOE 378 AND DOE 840'S OPPOSITION TO APPELLEE'S

Paul Wolf, DC Bar #480285

CERTIFICATE OF INTERESTED PERSONS

attorneys, persons, associations of persons, firms, partnerships, or corporations

of the particular case on appeal, including subsidiaries, conglomerates, affiliates,

known to Appellants, are as follows:

1. Doe 378, whose identity remains confidential under a Protective Order of

2. The other plaintiffs in the complaints filed by undersigned counsel in the

Southern District of Florida, in Case Nos. 08-80465, 10-80652, 11-80404, 11-

80405 and 17-cv-80475. Undersigned counsel represents the legal heirs of

interest in this appeal.

3. Additional interested parties are:

Agrícola Longaví Limitada

Agrícola Santa Marta Limitada

Agroindustria Santa Rosa de Lima, S.A.

Alamo Land Company

American Produce Company

Americana de Exportación S.A.

Arnold & Porter

Associated Santa Maria Minerals

Barbush Development Corp.

Bienes Del Rio, S.A.

Blank Rome LLP

BlackRock, Inc. (NYSE: BLK)

Blue Fish Holdings Establishment

Bocas Fruit Co. L.L.C.

In Re: Chiquita Brands Int’l., Inc.

Boies Schiller & Flexner, LLP, Fort Lauderdale

Boies Schiller & Flexner, LLP, Miami

Boies Schiller & Flexner, LLP, New York

Boies Schiller & Flexner, LLP, Orlando

Cadavid Londoño, Paula

C.C.A. Fruit Service Company Limited

Centro Global de Procesamiento Chiquita, S.R.L.

Charagres, Inc., S.A.

Chiquita (Canada) Inc.

Chiquita (Shanghai) Enterprise Management Consulting Co., Ltd.

Chiquita Banana Company B.V.

Chiquita Brands International Foundation

Chiquita Brands International Sàrl

Chiquita Brands International, Inc. (NYSE: CQB)

Chiquita Brands L.L.C.

Chiquita Central Europe, s.r.o.

Chiquita Compagnie des Bananes

Chiquita Deutschland GmbH

Chiquita Food Innovation B.V.

Chiquita for Charities

Chiquita Fresh B.V.B.A.

Chiquita Fresh España, S.A.

Chiquita Fresh North America L.L.C.

Chiquita Fruit Bar (Belgium) BVBA

Chiquita Fruit Bar (Germany) GmbH

Chiquita Fruit Bar GmbH

Chiquita Frupac B.V.

Chiquita Hellas Anonimi Eteria Tropikon Ke Allon Frouton

Chiquita Hong Kong Limited

Chiquita International Services Group N.V.

Chiquita Italia, S.p.A.