Chiquita Daubert Appeal - Appellants' Opening Brief

Case: 19-13926 Date Filed: 03/04/2020 Page: 1 of 73
Case No. 19-13926-C
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
___________________________________________
Does 1 Through 976, et al. v.

Chiquita Brands International, et al.
___________________________________________
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)
____________________________________________
OPENING BRIEF
OF
APPELLANTS DOE 378 AND DOE 840

____________________________________________
Paul Wolf, DC Bar #480285

P.O. Box 21840
Washington, D.C. 20009
Telephone (202) 431-6986
paulwolf@yahoo.com
Attorney for Plaintiff-
Appellants-Cross-Appellees
Doe 378 and Doe 840
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 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:
i
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
ii
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
iii
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
iv
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

v
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
vi
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.
vii
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.

viii
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.
ix
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.
x
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
xi
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 840
March 4, 2019
xii
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ................................................ i
TABLE OF CONTENTS .................................................................................. xiii
TABLE OF CITATIONS…............................................................................... xvii
JURISDICTIONAL STATEMENT …………………………………………. 1
STATEMENT REGARDING ORAL ARGUMENT ....................................... 2
STATEMENT OF THE ISSUES UNDER REVIEW ...................................... 3
STATEMENT OF THE CASE ......................................................................... 3
STATEMENT OF FACTS ................................................................................ 4
Course of Proceedings and Disposition of Case ..................................... 4
Facts of Case Doe 378 ............................................................................ 5
Facts of Case Doe 840 ............................................................................ 5
STANDARD OF REVIEW ............................................................................... 6
SUMMARY OF ARGUMENT ......................................................................... 7
ARGUMENT ..................................................................................................... 8
I. The District Court erred by finding the summary judgment

record insufficient to sustain a jury verdict in Plaintiffs' favor. ……….. 8
A. The Plaintiffs need only make a prima facie showing

of causation, and prove it by the "more likely than not"
standard at trial.……………………………………………...…. 10
1. The Plaintiffs do not have to identify the precise

xiii
individual who committed the murder, or prove

"but-for" causation. …......................................................... 11
2. The Plaintiffs' prima facie showing may be based

on circumstantial evidence alone. …………………..…..... 13
B. The District Court abused its discretion by not drawing

all reasonable inferences in Plaintiffs' favor. ................................. 14
1. Doe 378 and 840s' death certificates alone show a

death by gunshot wound, at a time and place under
the AUC's exclusive control. ................................................ 16
2. The findings of the Colombian government agency

Acción Social create a plausible inference of AUC
responsibility. …….............................................................. 18
3. The District Court erred by not considering

the totality of the evidence as a whole. …………………... 19
II. The District Court abused its discretion by finding the methodology
of FBI Agent Manuel Ortega to be unreliable...………....…....…….….. 21
A. The District Court erred by failing to consider whether

Ortega may testify as a lay witness under F.R.E. 701,
rather than as an expert. …………………………………… 24
1. Ortega's testimony that the AUC controlled the

urban areas of Urabá, Colombia, when and where
the murders of Does 378 and 840 occurred, was
based on his experience and knowledge. ………….. 25
2. Ortega's testimony that it would have been highly

unlikely for any other illegal armed group to
have committed these murders while the AUC
was in control, was based on his experience and
knowledge. ……………………………………….. 25
3. Ortega's testimony that the use of machine guns,

motorcycles, masks, confiscation of victims'
xiv
identity documents, and disposition of the

victims' corpses were modus operandi of the
AUC, was based on his experience and
knowledge. .………………………. 26
B. Under Kumho Tire, the opinion of an expert with special-

ized knowledge based on experience must be well-reasoned,
consistent with generally accepted principles used by the
expert outside of court, and not merely subjective or
speculative. ……………………………………………….….… 26
1. Law enforcement officers continue to serve as expert

witnesses after Kumho Tire. ……...……………………. 30
a. Law enforcement officers as experts in drug,

gang, and organized crime cases. ……….……….. 31
b. Law enforcement officers as experts on modus

operandi. ………………………………………….. 32
c. Law enforcement officers as experts on ordinary

investigative methods. …………………….…….… 34
C. Probable cause, not guilt beyond a reasonable doubt, is the

standard to charge someone with a crime and put them on
trial. The District Court is requiring a showing akin to clear
and convincing evidence, or guilt beyond a reasonable doubt,
for each murder. ........................................................................... 35
D. Ortega may offer expert testimony about the ultimate issue

in the case; whether, in his opinion, the AUC committed
these murders. …………………..………………..……………… 37
III. The District Court abused its discretion by not considering Colombian
government documents, insofar as the Plaintiffs could introduce them
with witnesses. …………………………………………………………. 38
A. The District Court failed to consider the most important

documentary evidence in each case, including death
certificates, autopsy reports, the findings of a Colombian aid
xv
agency, and a war crimes tribunal, any one of which creates

a plausible inference that the AUC committed the murders. …... 39
1. The documentary evidence in Case Doe 378. …………... 39
2. The documentary evidence in Case Doe 840. …………… 41
3. Additional documents in Case Doe 840

submitted nunc pro tunc. ……………………………….… 42
B. These documents are admissible as business records. .….….…… 43
1. Although the authors of the documents may be

unavailable, the plaintiffs may introduce them
with another qualified witness. ………………..……..…. 45
C. These documents are also admissible as public records. ……..... 45
D. The District Court erred by imposing a requirement

to obtain Apostille stamps on Colombian government
documents, which is not possible for most of them. …...………. 46
CONCLUSION ................................................................................................. 48
xvi
TABLE OF CITATIONS
CASES
Ali v. District of Columbia Gov't., 810 F.Supp.2d 78 (D.D.C. 2011) ….…... 44
AT&T v. Delta Communications Corp.,

590 F.2d 100 (5th Cir.), cert. denied, 444 U.S. 926 (1979) ……….………... 15
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................. 8
Arrington v. Cobb County, 139 F.3d 865 (11th Cir. 1998) ............................ 10
Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ……………………… 23
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)……………….….…. 9
B&G Enters., Ltd. v. United States, 220 F.3d 1318 (11th Cir. 2000) ……… 6
Brook Group Ltd. v. Brown & Williamson Tobacco Corp.,

113 S. Ct. 2578 (1993) ……………………………………………………… 27
Cardona v. Chiquita Brands, 760 F.3d 1185 (11th Cir. 2014) …………….... 3
Carmichael v. Samyang Tire Inc., 131 F.3d 1433 (11th Cir. 1997) ………… 28
Ceco Corp. v. Coleman, 441 A.2d 940 (D.C. 1982) ……………………….. 11
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ………………………….. 8-9, 13
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) ……...................................................... 17, 21-23, 26-31, 34
Edward J. Sweeney & Sons, Inc. v. Texaco,

637 F.2d 105 (3d Cir.1980), cert. denied, 451 U.S. 911 (1981) ………….. 15
First Nat'l Bank v. Cities Service Co., 391 U.S. 253 (1968) ……………... 13, 15
Frye v. United States, 293 F. 1013 (D.C.Cir.1923) ………………………. 22, 26
xvii
Garczynski v. Bradshaw, 573 F.3d 1158 (11th Cir 2009) ................................. 14
Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015) …………………….….. 1
Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771 (7th Cir. 2017) ………… 30
Guinn v. AstraZeneca Pharmaceuticals LLP,

602 F.3d 1245 (11th Cir. 2010) …………………………………….………… 17
Hardrick v. City of Bolingbrook, 522 F.3d 758 (7th Cir. 2008) ………….….. 44
Jones v. UPS Ground Freight, 683 F.3d 1283 (11th Cir 2002) …………….. 44
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ……… 21-23, 26-28, 30, 35
Lacy v. District of Columbia, 424 A.2d 317 (D.C. 1980) ………………….. 12
Lavender v. Kurn, 327 U.S. 645 (1946) …………………….……………… 15
Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001) ………………………….…. 14
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986) ………………………………………………….… 9, 13, 20
Mize v. Jefferson City Board of Education,

693 F.3d 739 (11th Cir. 1996) ………………………………………………. 16
Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003) ............................. 8
Robinson v. District of Columbia, 580 A.2d 1255 (D.C.1990) …………….. 12
Robinson v. Pezzat, 818 F.3d 1 (D.C. Cir 2016) ............................................. 15
Rufo v. Simpson, 103 Cal. Rptr. 2d 492, 86 Cal. App. 4th 573 (2001) …..… 11
St. Charles Foods, Inc. v. America’s Favorite Chicken Co.,

198 F.3d 815 (11th Cir. 1999). ………………………………………………. 6
St. Paul Fire & Marine Insurance Co. v. James G. Davis

Construction Corp., 350 A.2d 751 (D.C. 1976) …………………………….. 13
xviii
Salem v. United States Lines Co., 370 U.S. 31 (1962) ................................... 30
Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000) ………………… 14, 27
Starski v. Kirzhnev, 682 F.3d 51 (1st Cir. 2012) ……………………………. 46
United States v. Ala. Power Co., 730 F.3d 1278 (11th Cir. 2013) ………….. 6-7
United States v. Augustin, 661 F.3d 1105(11th Cir.2011) …………………. 31
United States v. Chiquita Brands, Case #07-cr-055 (D.C.) …………………. 4
United States v. De Jongh, 937 F.2d 1 (1st Cir. 1991) …………………….... 47
United States v. Diebold, Inc., 369 U.S. 654 (1962) ……………………....... 9, 15
United States v. Escalante, 221 F. App'x 946 (11th Cir.2007) ...................... 32-33
United States v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir. 1997) ………..…. 24
United States v. Four Parcels of Real Property,

941 F.2d 1428 (11th Cir.1991) ……………………………………………… 36
United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004) (en banc) ...……... 28, 33
United States v. Gaines, 105 F. App'x 682 (6th Cir. 2004) .............................. 33
United States v. Garcia, 447 F.3d 1327 (11th Cir. 2006) …………………… 33
United States v Ledbetter, 929 F.3d 338 (6th Cir. 2019) ………………….… 32
United States v. Mansoori, 304 F.3d 635 (7th Cir. 2002) ................................ 32
United States v. McGowan, 552 Fed. Appx. 950 (11th Cir. 2014) …………. 46
United States v. Mechanik, 106 S. Ct. 938 (1986) ……………………….…. 36
United States v. Paul, 175 F.3d 906 (11th Cir. 1999) ………………………. 34
xix
United States v. Potts, , 2000 WL 943219 (E.D. La. July 7, 2000) ………… 32
United States v. Ryan, 289 F.3d 1339 (11th Cir. 2002) ……………….…… 20
United States v. Van Wyk, 83 F. Supp. 2d 515 (D. N.J. 2000) …………….. 35
United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999) …………………… 33
United States v. $121,100.00, 999 F.2d 1503 (11th Cir.1993) ….…………. 36
United States v. $36,634.00, 103 F.3d 1048 (1st Cir.1997) …….………….. 36
United States v. $4,255,625.39, 762 F.2d 895 (11th Cir. 1985)………..…… 36
Weakley v. Burnham Corp., 871 A.2d 1167 (D.C. 2005) …………………... 12
Whatley v. CNA Ins. Co., 189 F.3d 1310 (11th Cir. 1999). ………………… 6
White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002) ……………………. 22
STATUTES
28 U.S.C. §1291 ………………………………………………………….… 1, 5
28 U.S.C. §1292 ……………………………………………………………… 3
28 U.S.C. § 1332 ……………………………………………………………... 1
28 U.S.C. § 1350 ……………………………………………………………… 1
FEDERAL RULES OF CIVIL PROCEDURE
F.R.C.P. 12 …………………………………………………………………... 9, 20
F.R.C.P. 25 …………………………………………………………………… 6
F.R.C.P. 54(b) ………………………………………………………………… 1
F.R.C.P. 56(c)(2) ……………………………………………………………. 8, 9
xx
FEDERAL RULES OF EVIDENCE
Fed. R. Evid. 702 .................................................................................... 23-28, 33
Fed. R. Evid. 704 .................................................................................... 33, 37-38
Fed. R. Evid. 803(6) ................................................................................. 43, 44, 46
Fed. R. Evid. 803(8) ........................................................................................ 45
Fed. R. Evid. 902 ............................................................................................. 46
OTHER
Advisory Committee Notes to Fed. R. Evid. 702 ……………….…………… 33
Advisory Committee Notes to Fed. R. Evid. 704 ……………………...…… 23, 28
Advisory Committee Notes to Fed. R. Evid. 803(6) …………………...…… 43
Advisory Committee Notes to Fed. R. Civ. P. 44 ….………………………. 47
Advisory Committee Notes to 2010 Amendment to Fed. R. Evid. 701 …..… 24
Advisory Committee Notes to 2010 Amendment to Fed. R. Evid. 702 …..… 27
Foreign Affairs Manual, U.S. State Dept. ……………………..……………... 47
Restatement (Second) of Torts (Am. Law Inst. 1965)…………….…………. 12
Amstutz, Walter G. & Harges, Bobby M., Evolution of Controversy:

The DaubertDilemma: The Application of Daubert v. Merrell Dow
Pharmaceuticals Inc. to ExpertTestimony of Law Enforcement Officers
in Narcotics-Related Cases, 23 U. Haw. L. Rev.67 (2000) …………………. 30
Faigman, David L., Making the Law Safe for Science: A Proposed
Rule for the Admission of Expert Testimony, 35 Washburn L.J. 401 (1996) .. 23
xxi
Groscup, Jennifer L. & Penrod, Steven D., Battle of the Standards

for Experts in Criminal Cases: Police vs. Psychologists, 33 Seton
Hall L. Rev. 1141 (2003) ............................................................................... 30, 31
Hrabosky, Kimberly M. Kumho Tire v. Carmichael: Stretching Daubert

Beyond Recognition, 8 Geo. Mason L. Rev. 203 (1999). …………………….. 23
Imwinkelried, Edward J., The Next Step After Daubert:

Developing a Similarly Epistemological Approach to Ensuring
Reliability of Non-Scientific Expert Testimony, 15 Cardozo L.
Rev. 2271, 2289 (1999). ……………………………………………….……. 22
Kaye, David H., et al., The New Wigmore, A Treatise on Evidence:

Expert Evidence, 12 (Richard D. Friedman ed., 2004). ............................... 37-38
xxii
JURISDICTIONAL STATEMENT
The District Court has subject matter jurisdiction over common law and
wrongful death claims pursuant to 28 U.S.C. § 1332. The Appellants are citizens
and residents of Colombia. The Appellees are residents of a U.S. state, except for
Defendant Ordman, who has sufficient minimum contacts. The amount in
controversy in each case exceeds $75,000. With regard to the individual
defendants, the Court also has subject matter jurisdiction over claims under the
Torture Victim Protection Act, 28 U.S.C. § 1350.
On September 5, 2019, the District Court granted Summary Judgment to the
Defendant for twelve bellwether cases. Appx. at 19-64.1 On September 6, 2019,
the District Court entered a partial final judgment pursuant to F.R.C.P. 54(b) on all
claims by 12 bellwether plaintiffs, including Doe 378 and Doe 840. Appx. at 65-
67. The Order effectively removed Does 378 and 840 from the litigation.
Gelboim v. Bank of Am. Corp., 574 U.S. 405 (2015) On October 3, 2019, Does
1
The abbreviation "Appx." refers to the Appellants' Appendix. Undersigned
counsel conferred with counsel for Chiquita and Jack Scarola proposing common
documents that could be put into a joint appendix, but never received a reply.
Their position is that I should not file a brief. Local Rule 30-1 "strongly urges"
parties on the same side of an appeal to file a joint appendix. One way to
accomplish this would be to order Mr. Scarola to produce a "Volume 2" to the
same Appendix, starting at exhibit 21, since my last exhibit is number 20, and
should already contain some of the same documents, which are spelled out in the
Local Rule.
1
378 and 840 filed a Notice of Appeal pursuant to 28 U.S.C. §1291. DE 2568. This
was the first Notice of Appeal filed by any party. See IOP 7 to F.R.A.P. 28.
STATEMENT REGARDING ORAL ARGUMENT
Oral argument should help resolve this appeal, which involves the
evidentiary threshold for summary judgment, whether the plaintiffs must prove
causation in negligence by the "more likely than not" and "substantial factor"
standards, and whether circumstantial evidence alone, as explained by an expert
law enforcement officer, can meet the standard.
Counsel for the other Appellants filed their cases in other jurisdictions with
different tort laws and choice of laws rules. They have university professors as
experts, and different kinds of documents supporting their cases. Undersigned
counsel represents about half the plaintiffs in the MDL, but wasn't allowed any
time for argument during the previous appeal, No. 12-14898. That appeal was
argued by the same attorneys who've already filed two motions to prevent us from
filing a brief in this appeal. We would like to have half the Appellants' time.
2
STATEMENT OF THE ISSUES UNDER REVIEW
1. Whether the District Court erred by finding the summary judgment record
insufficient to support a jury verdict in Doe 378 and Doe 840's favor, where
causation is shown through circumstantial evidence alone.
2. Whether the District Court erred by requiring Doe 378 and Doe 840 to prove
the identities of the killers, when all they had to show was that the persons
who caused the injuries were "more likely than not" supported by Chiquita,
or that Chiquita's support was a "substantial factor" in causing the injuries.
3. Whether the District Court erred by finding the methodology of FBI special
agent Manuel Ortega unreliable, where his testimony was based on personal
knowledge and experience with the group that committed the murders.2
STATEMENT OF THE CASE
After making payments totaling 1.7 million dollars to a Colombian terrorist
group, the Autodefensas Unidas de Colombia (United Self-Defense Forces of
Colombia, or "AUC"), the Appellee Chiquita Brands pled guilty to the felony of
engaging in financial transactions with a specially designated terrorist
organization. See Factual Proffer, Appx. at 101-117. Chiquita and several of its
2
Although it isn't directly applicable to the Order on appeal, the 11th Circuit may
still address the District Court's earlier 28 U.S.C. § 1292 certification of the issue
of whether the laws of U.S. states can have extraterritorial application. The § 1292
certification, originally filed as DE 518, is referenced by the District Court at
Appx. 235 at n 6. This Court's prior opinion, Cardona v. Chiquita Brands, 760
F.3d 1185 (11th Cir. 2014), didn't address this question.
3
employees were sued for wrongful death and related claims by the legal heirs of
persons murdered by the AUC units paid by Chiquita, for murders occurring near
their banana farms while they were paid.
Thousands of people were assassinated by the AUC in just a few years in the
small region of Urabá, Colombia. The murders were generally perpetrated by
"death squads" of masked individuals with machine guns, whose identities cannot
be proven with certainty. Chiquita was the main banana producer in the Urabá
region, and its main business partner was Unibán, a Colombian banana producer
owned by the family of AUC commander Raúl Hasbún. This appeal concerns the
standards to be used to determine whether they have made a prima facie showing
of the only issue genuinely in dispute: the causation of each particular murder.
STATEMENT OF FACTS
Course of Proceedings and Disposition of Case
The MDL arises from a criminal prosecution in the U.S. District Court for
the District of Columbia, in U.S. v. Chiquita Brands, Case #07-cr-055 (RCL).
Chiquita pled guilty. Appx. at 101-117. The civil 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. After more than 12 years, there are
more than 7,500 claims filed in five different district courts, about half of which
were filed by undersigned counsel. Six "non-Wolf" bellwether cases were set to go
4
to trial on October 28, 2019, with a second "non-Wolf" trial to follow starting
February 3, 2020. Although the cases of Does 378 and 840 were never set for trial,
both fully complied with Chiquita's discovery requests, including appearing for
depositions in Florida. On July 1, 2019, the District Court ordered the Plaintiffs to
show how the evidence they had proffered to oppose summary judgment would be
admissible at trial. Appx. at 74-78. After reviewing the parties' responses, the
District Court dismissed all twelve bellwether cases on September 5, 2019. Appx.
at 19-64. This is the Order on appeal. On October 3, 2019, Does 378 and 840
filed a Notice of Appeal pursuant to 28 U.S.C. §1291. DE 2568.
Facts of Case Doe 378
The victim in this case worked on banana farms as an independent
contractor, including one owned by Chiquita and appearing in records delivered to
the Colombian Fiscalía (Attorney General's Office) by AUC commander Raul
Hasbun. Appx. at 96-97; 166-167. The AUC had imposed a curfew which
prohibited anyone from leaving their house at night. Id. The victim left home at
night despite his family imploring him not to. Id. On his way home, as he passed
a gas station, two men arrived, called him by name, then shot him in the back when
he didn't answer, and took his ID. Id. Doe 378 was recognized as a war crime
victim by Accion Social, and paid about $6,193. dollars.3 Appx. at 165.
3
Exchange rate of 3,391:1 used.
5
Facts of Case Doe 840
Five armed men arrived at the victim’s home in the middle of the night, and
shot him four blocks away. Appx. at 97-99. He was a professional soldier at home
on leave. About eight family members were home and saw the abduction. Id. The
Plaintiff recognized one of the men who abducted the victim, named him in her
deposition, and stated that he is a known AUC commander in prison for another
murder. Id. Another five members of the Plaintiffs' family were also killed, and
two were raped, by the AUC. Id. The murder occurred in an urban area of
Apartadó, while the AUC controlled the town. The Plaintiff4 was recognized as a
victim by Accion Social and paid $3,702 dollars. Id. Appx. at 153.
STANDARD OF REVIEW
The grant or denial of summary judgment is reviewed de novo. B&G
Enters., Ltd. v. United States, 220 F.3d 1318, 1322 (11th Cir. 2000). Summary
judgment is appropriate if there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law. Whatley v. CNA Ins. Co.,
189 F.3d 1310, 1313 (11th Cir. 1999). The court must view all factual inferences
reasonably drawn from the evidence in the light most favorable to the non-moving
4
Doe 840, who was deposed in Florida, died about a year later. A motion to
substitute her daughter and next of kin, pursuant to F.R.C.P. 25, was filed in
District Court but not decided. DE 2338. Doe 840 had filed an earlier motion, see
DE 2124, but on November 2, 2018, the District Court ordered Doe 840 to refile
the motion with certified translations of its Spanish language exhibits. The term
"Doe 840" as used in this brief generally refers to the substitute plaintiff.
6
party. St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d 815,
819 (11th Cir. 1999); United States v. Ala. Power Co., 730 F.3d 1278, 1280 (11th
Cir. 2013) ("We reverse, however, the district court's wholesale exclusion of the
expert testimony …, vacate the judgment in favor of Alabama Power, and remand
for further proceedings. The Koppe–Sahu model, as utilized here, is sufficiently
reliable to establish a relationship between potential generation of electricity and
expected pollutant emissions at Alabama Power's modified plants.").
SUMMARY OF ARGUMENT
The District Court erred by not determining whether the Plaintiffs had made
a prima facie showing of the causation for each murder, such that it would be
plausible or reasonable to infer that paramilitaries paid by Chiquita committed the
murders. Instead of determining whether the Plaintiffs' inference was plausible,
the District Court weighed competing inferences that another terrorist group, drug
traffickers or common criminals could also have committed the murders. The
Order on appeal is full of assumptions and unstated findings of fact. Both of these
individuals died of gunshot wounds at a time and place under the exclusive control
of a terrorist group that assassinated thousands of people in a few years' time, while
Chiquita was paying them for security.
The District Court also erred in its application of the Daubert standard to
expert Manuel Ortega, the FBI case agent behind the underlying criminal case. His
7
methodology isn't based on science, and doesn't have to be. The standard normally
ued by law enforcement is probable cause, which is similar to the "more likely
than not" civil standard of proof. Ortega spent much of his career working on drug
trafficking cases in Colombia, including others involving the AUC, and is uniquely
qualified. His testimony is based on first-hand knowledge and experience.
Finally, the District Court erred by not considering the methods we proposed
for introducing Colombian government documents at trial. We proffered Carlos
Eusse, a retired employee of Acción Social, to lay the foundation for that agency's
correspondence; in particular, the checks the Plaintiffs received when they were
recognized as war crimes victims. Death certificates - which should be sufficient
by themselves to create an inference, since they show the time, place and cause of
death - appear to be eligible for Apostilles. Autopsy reports may be introduced by
a forensic pathologist, and correspondence with a war crimes tribunal, by ex-
officials familiar with it.
ARGUMENT
I. The District Court erred by finding the summary judgment record
insufficient to sustain a jury verdict in Plaintiffs' favor.
"In ruling on a Rule 56 motion, the district court may not weigh the evidence
or find facts. Instead, the court's role is limited to deciding whether there is
sufficient evidence upon which a reasonable juror could find for the non-moving
party." Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003) In
8
determining whether a party has met its burden, the court reviews the evidence
"through the prism of the substantive evidentiary burden" that would apply at trial,
be it a preponderance of the evidence, clear and convincing evidence, or proof
beyond a reasonable doubt. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-
254 (1986).
A "mere scintilla" of evidence is insufficient. In Celotex Corp. v. Catrett,
477 U.S. 317 (1986), fifteen asbestos manufacturers were sued by a plaintiff who
had no evidence of which one made the asbestos to which he was exposed. 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 hadn't done.
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 artificially low prices in the United States to
drive American companies out of business. As in the Twombly case decided 20
years later,5 the problem was proving the agreement in a conspiracy, where all that
could be shown was that 20 different companies were losing money. The
Matushita Court found it "implausible" they would all do so without another
motive. "It follows from these settled principles that, if the factual context renders
5
The standards for Rules 12 and 56 are the same. While the Twombly case was
considered a significant change in the law at the time, it shouldn't have been, since
the plausibility standard was taken verbatim from Matushita. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 at *14 (2007).
9
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, 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 only witness
testimony was that the AUC controlled the urban areas of Urabá, Colombia at the
time, and that no other group would have been capable of committing the murders.
Circumstantial and modus operandi evidence suggests that these were war crimes
rather than common crimes, and the victims were compensated as war crime
victims. Although the Plaintiffs need not disprove competing inferences at this
10
stage, 369 U.S. at 655, they've done so with statistical evidence, and by
distinguishing the modus operandi of the AUC.
A. The Plaintiffs need only make a prima facie showing of causation,

and prove it by the "more likely than not" standard at trial.
At the summary judgment stage, the plaintiff bears the burden of coming
forward with sufficient evidence to at least create genuine issues of material fact
regarding each of the elements of her prima facie case. Arrington v. Cobb County,
139 F.3d 865, 875 (11th Cir. 1998) At trial, the civil standard is that persons
financially supported by Chiquita "more likely than not" committed the murders, or
that Chiquita's support to the AUC was a "substantial factor" in causing them. It's
like many other cases 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.). The
Plaintiffs need only prove each element of a tort by a preponderance of the
evidence.
1. The Plaintiffs do not have to identify the precise individual

who committed the murder, or prove "but-for" causation.
11
In the District of Columbia, “where a particular statutory or regulatory
standard is enacted to protect persons in the plaintiff's position or to prevent the
type of accident that occurred, and the plaintiff can establish his relationship to the
statute, unexplained violation of that standard renders the defendant negligent as a
matter of law.” Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C. 1982)
Moreover, “[w]here a party violates a statute, and the violation is a proximate
cause of an injury which the statute was designed to prevent, there is a rebuttable
presumption of negligence on the part of the violator.” Robinson v. District of
Columbia, 580 A.2d 1255, 1256 (D.C.1990).6
The District of Columbia has adopted the proximate cause standard set forth
in the Restatement (Second) of Torts, § 431 (1965), which provides that an actor's
negligent conduct is a legal cause of harm to another if it is a substantial factor in
bringing about the harm. Weakley v. Burnham Corp., 871 A.2d 1167, 1173 (D.C.
2005). The leading case on the substantial factor test is Lacy v. District of
Columbia, 424 A.2d 317, 321 (D.C. 1980) (en banc). In Lacy, the court considered
whether the following instruction would mislead a jury:
When the negligent acts or omissions of two or more persons, whether

committed independently or in the course of concerted conduct, contribute
concurrently, and as proximate causes, to the injury of another, each of such
persons is liable. This is true regardless of the relative degree of the
6
Appellants briefed this in their Motion for Partial Summary Judgment for
Negligence Per Se, DE 2229-1, see Exhibit 9 to their Cross Motion to Remand.
Only some of the arguments based on D.C. tort law are repeated here.
12
contribution. It is no defense for one of such persons that some other

person, not joined as a defendant in the action, participated in causing the
injury, even if it should appear to you that the negligence of that other
person was greater, in either its wrongful nature or its effect.
Id. at 322. The court upheld the instruction and found that "each of such persons is
liable. This is true regardless of the relative degree of the contribution." Id.
Even if the AUC's murders were construed as independent, intervening
causes, the Defendant would still be liable "[i]f the danger of an intervening
negligent or criminal act should have been reasonably anticipated and protected
against." St. Paul Fire & Marine Insurance Co. v. James G. Davis Construction
Corp., 350 A.2d 751, 752 (D.C. 1976). The AUC's activities were not only
forseeable, but well known to Chiquita. Appx. at 107-8; 101-114.
2. The plaintiffs' prima facie showing may be based on

circumstantial evidence alone.
The plaintiffs' prima facie showing may be based on circumstantial evidence
alone. In Matsushita and Celotex, there were competing inferences based on
circumstantial evidence alone, "[b]ut antitrust law limits the range of permissible
inferences from ambiguous evidence in a § 1 case." 475 U.S. at 588. The
Matsushita court found the required inference to be "implausible" in light of
competing inferences, id., and that "sufficiently unambiguous" evidence was
needed to support a finding of conspiracy. Id. at 597. Likewise, in First National
Bank of Arizona v. Cities Service Co., 391 U. S. 253 (1968), the issue was whether
13
the defendant's refusal to deal with the plaintiff supported an inference that the
defendant had joined a boycott, while economic factors suggested the defendant
had no motive to do so. 391 U.S. at 278-279. The Court found that in isolation,
the defendant's refusal to deal might well have sufficed to create a triable issue, id.
at 277, but since the defendant lacked any rational motive to join the boycott, the
refusal was insufficient to support a finding of antitrust liability. 391 U. S. at 280.
Here, there is nothing implausible about Doe 378 and 840's claims that their
family members were killed by paramilitaries. The competing inferences proposed
by the District Court - that another terrorist group, drug traffickers, or common
criminals could have committed the murders contradicts the testimony of the FBI
agent responsibible for the the criminal conviction, and who spent much of his
career prosecuting Colombian terrorists and drug traffickers. Appx. at 118-136.
In civil conspiracy cases, "[t]he existence of the conspiracy agreement does not
have to be proven by direct evidence. Instead, it can be inferred from the conduct
of the alleged participants or from circumstantial evidence of the scheme.'" United
States v. LeQuire, 943 F.2d 1554, 1562 (11th Cir. 1991) (quoting United States v.
Ard, 731 F.2d 718, 724 (11th Cir.1984)); see Republic of Panama v. BCCI
Holdings (Luxembourg) S.A., 119 F.3d 935, 950 (11th Cir. 1997). Finally, it is for
the jury to decide the weight to be given to an expert's opinion concerning the
plausibility of an inference. Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001);
14
see Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) (“The 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.”).
B. The District Court abused its discretion by not drawing all

reasonable inferences in Plaintiffs' favor.
At the summary judgment stage, the court must draw all inferences in favor
of the opposing party to the extent supportable by the record. Garczynski v.
Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009). The Supreme Court has held
that a choice of inferences is for the jury, and therefore "[on] 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." United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962); Robinson v. Pezzat, 818 F.3d 1, 8-10 (D.C. Cir. 2016)
(trial court erred by drawing inference against the non-moving party, instead of in
her favor, because question of which inference prevails is for the jury to decide) In
First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 280 (1968), the Supreme
Court suggested that a judge may not grant summary judgment unless he concludes
that no reasonable jury could find that the inference was more plausible.
The court may limit the range of inferences that may be drawn and take the
case from the jury only if the non-movant's interpretation of the indirect evidence
is "unreasonable." Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 115-
15
16 (3d Cir. 1980), cert. denied, 451 U.S. 911 (1981). However, once the threshold
determination of reasonableness has been made, the judge may not choose among
competing inferences, regardless of whether one appears more plausible than the
others. AT&T v. Delta Communications Corp., 590 F.2d 100, 102 (5th Cir.), cert.
denied, 444 U.S. 926 (1979) "The appellate court's function is exhausted when
[the] evidentiary basis [for a jury's inference] becomes apparent, it being
immaterial that the court might draw a contrary inference or feel that another
conclusion is more reasonable." Lavender v. Kurn, 327 U.S. 645, 653 (1946). The
test of the reasonableness of these inferred facts is made "in view of other
undisputed background or contextual facts …" Mize v. Jefferson City Board of
Education, 693 F.3d 739, 743 (11th Cir. 1996).
“A district court abuses its discretion if it applies an incorrect legal standard,
applies the law in an unreasonable or incorrect manner, follows improper
procedures in making a determination, or makes findings of fact that are clearly
erroneous,” Thomas v. Blue Cross & Blue Shield Ass’n, 594 F.3d 814, 821 (11th
Cir. 2010) (internal quotation marks omitted), and also “when it misconstrues its
proper role, ignores or misunderstands the relevant evidence, and bases its decision
upon considerations having little factual support.” Jove Eng’g, Inc. v. IRS, 92 F.3d
1539, 1546 (11th Cir. 1996).
16
1. Doe 378 and 840s' death certificates alone show death by

gunshot wound, at a time and place under the AUC's
exclusive control.
A death certificate showing that a person was shot to death at a place under
the exclusive control of the AUC should be enough, all by itself, to create a
plausible inference that they did it. Ortega's opinion, based on his personal
experience, interviews of plaintiffs, and review of other evidence in this case, was
that "[t]hese murders occurred in urban areas of Apartado and Turbo, and the only
armed groups that operated with impunity in urban areas where [sic] the AUC. It
was also common knowledge that the AUC was responsible for the murders of
Colombian citizens during this time frame, as they controlled the urban areas,
setting curfews, and killing anyone associated with the UP or other left leaning
organizations. It would be highly unlikely for local bandits or groups of common
criminals to operate in an area controlled/protected by the AUC." Appx. at 132.
Ortega's report contains three pages of maps and graphs showing the
geographic scope of the AUC's control. Appx. at 132-134. Ortega's report was
partly based on an appendix of Spanish language materials not filed on the record
(but produced to Chiquita), including a detailed, 80-page report entitled "General
Report: National Center of Historic Memory" (Informe General: Centro Nacional
de Memoria Histórica), full of graphs and statistics published by the Colombian
17
government. Counsel for Chiquita deposed Agent Ortega on January 9, 2019. The
District Court didn’t conduct a Daubert hearing.
Based on his report, the court found that Ortega didn't apply a reliable
methodology in forming his opinion on the likelihood of AUC involvement, but
"simply collected historical war crime statistics for deducing, based on
geographical and tempor[al] overlays, an AUC connection" to the death of the
bellwether victims. Appx. at 59. The District Court cited Guinn v. AstraZeneca
Pharmaceuticals LLP, 602 F.3d 1245 (11th Cir. 2010), where a temporal
proximity between a user’s ingestion of a drug and subsequent development of
diabetes was held an insufficient premise for expert causation opinion. Id.
However, even the most sophisticated mathematical analysis of homicide data 7
would still be a "geographical and temporal overlay." The District Court is
rejecting the argument that, since most of the murders within certain criteria were
committed by the AUC, any particular murder was more likely than not committed
7
The AUC's control of the region could also be shown through the testimony of
paramilitary commanders in the Commision of Justice and Peace, a war crimes
tribunal established as part of the Colombian Fiscalia. For example, the sentence
of Ever Veloza Garcia (Oct. 30, 2013), a key witness in this case, is 558 pages
long. During many months of testimony, he accepted responsibility for more than
3,000 murders, but did not know the details of most of them, or the names of the
victims. The AUC demobilized around 2005. The rank and file members directly
responsible for these events were never prosecuted, and granted amnesty in
exchange for turning in their weapons. On remand, the plaintiffs could prove the
AUC's control of the region by some other method, whether it be statistics,
paramilitary testimony, or an academic study. However, all of them would lead to
a "geographical and temporal overlay" that the District Court rejects.
18
by them. That is actually the plaintiffs burden of proof at trial. For now, they need
only show their inference to be plausible or reasonable.
2. The findings of the Colombian government agency Acción

Social create a plausible inference of AUC responsibility.
Does 378 and 840 have each been paid several thousand dollars by Accion
Social, an agency under the direction of the Office of the President of Colombia,
funded by the United States Agency for International Development (USAID). It's
a plausible inference that Doe 378 and 840 wouldn't have been paid for fraudulent
claims.8 The Plaintiffs' evidence includes the correspondence and findings of this
agency, and the money they received, and can be introduced by a former employee
of Accion Social named Carlos Eusse. See § III infra.
3. The District Court erred by not considering the totality of

the evidence as a whole.
The District Court evaluated each piece of evidence proffered by the
Plaintiffs "standing alone," finding each insufficient to create an inference that the
AUC committed the crime. See Appx. at 67, 80, 83, 84, 85. "[T]he proffered
declarations of various third-party witnesses regarding general AUC activity in the
area of this homicide does not, standing alone…" id. at 67 (regarding another
plaintiff); "[n]or does Plaintiff’s anticipated personal testimony regarding an
8
Correspondence from Accion Social is reliable for the same reason any business
records are: the motives were to keep accurate records and not pay benefits for
fraudulent claims.
19
alleged AUC curfew in effect at time of the killing, standing alone," id. at 80;
"[a]gainst this backdrop of general AUC killing methodologies, Plaintiffs contrast
the time, place and circumstances of the death of their family members, contending
that each death is consistent, in some way, with these patterns, and that the
existence of an AUC connection to each death may therefore be inferred on this
circumstantial evidence alone," id. at 83; "[t]he notion that circumstantial
geographical and temporal evidence may support an inference … is simply far too
speculative, standing alone ..." Appx. at 84; "the proffered circumstantial evidence
regarding the manner of the killings is not, standing alone…" id. at 85.
The Plaintiffs can survive summary judgment based on circumstantial
evidence alone. See § I (A)(2) supra. The totality of the evidence includes not
only this modus operandi evidence, but the undisputed territorial control by the
AUC, and the undisputed findings of a Colombian government agency.
Even if no single piece of evidence has enough weight to put a material fact
into dispute, the circumstances taken as a whole may do so. U.S. v. Ryan, 289
F.3d 1339, 1347 (11th Cir. 2002) ("Based on the totality of the evidence presented,
a jury could have reasonably inferred that Evering was a knowing participant in the
drug conspiracy.") The "totality of the evidence" offered by the non-movants must
make a plausible, but only prima facie showing. Matsushita v. Zenith Radio Corp.,
475 U.S. 574, 585-588 (1986) It is identical to the Twombly and Iqbal standards
20
for Rule 12(b)(6), but instead of allegations, the court evaluates the evidence on the
record.
The key facts for cases Doe 378 and 840 are summarized in Ortega's report.
Appx. at 123-134. First, he found that they occurred in urban areas of Uraba,
Colombia, during a time when the AUC exercised such control that it would be
"highly unlikely" that any other group could have killed them. Id. For case Doe
378; (1) the victim was murdered for ignoring the curfew imposed by the AUC; (2)
other individuals were killed for defying the curfew; (3) the victim's identity card
was stolen; (4) the plaintiff was recognized as a victim by Accion Social; (5) the
victim worked for a farm associated with Banadex, and two of the plaintiff's nieces
still work for Banadex. Appx. at 127-128. For case Doe 840; (1) the victim was a
professional soldier; (2) numerous family members saw the abduction; (3) the
plaintiff recognized one of the kidnappers and said he was a known AUC
commander in prison for another murder; (4) five members of the plaintiff's family
were killed by the AUC, and two were raped; and (5) the Plaintiff was recognized
as a victim by Accion Social. Appx. at 130. Ortega also testified that the use of
motorcycles, machine guns, and masks, arriving at the victims' home in the middle
of the night, taking the victims' identification cards, and leaving the body in a
public place to scare others, were typical modus operandi of the AUC. See § I
(A)(3) supra.
21
II. The District Court abused its discretion by finding the methodology of
FBI Agent Manuel Ortega to be unreliable.
The exclusion of the testimony of Manuel Ortega - the F.B.I. case agent in
the underlying criminal case - was based on a finding that his methodology wasn't
reliable. Appx. at 58-60. Ortega was considered the same as two university
professors offered by other plaintiffs' counsel, who are distinguishable because
they are "scientific" experts under Daubert and Kumho. See Daubert 509 U.S. at
590 n. 8 (“Our discussion is limited to the scientific context because that is the
nature of the expertise offered here.”). Ortega is not.
The distinction between scientific and non-scientific experts turns on where
the expert received his or her expertise in a particular field.9 See Edward J.
Imwinkelried, The Next Step After Daubert: Developing a Similarly
Epistemological Approach to Ensuring Reliability of Non-Scientific Expert
Testimony, 15 Cardozo L. Rev. 2271, 2289 (1999) (“Nonscientific experts are
‘experientially qualified.’ Their experience largely is their expertise.”)10 Kumho
9
The word “scientific” refers to “a grounding in the methods and procedures of
science.” Daubert, 509 U.S. at 590. Specialized knowledge encompasses any
knowledge focused on a particular area of study, profession or experience, and is
broader than “scientific” or “technical” knowledge. See Linda Sandstrom Simard
and William G. Young, Daubert’s Gatekeeper: The Role of the District Judge in
Admitting Expert Testimony, 68 TUL. L. REV. 1457, 1466 (1994).
10
Engineers, for example, may testify on the basis of their training and experience,
not the scientific method, that a product was built to industry standards. White v.
Ford Motor Co., 312 F.3d 998, 1006–1009 (9th Cir. 2002) (engineers are permitted
to testify on the basis of experience in the field following Kumho Tire). See
22
Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999) (“[I]t will at times be useful to
ask even of a witness whose expertise is based purely on experience, say, a
perfume tester able to distinguish among 140 odors at a sniff, whether his
preparation is of a kind that others in the field would recognize as acceptable.”).11
Another way to differentiate between scientific and non-scientific experts is
whether their testimony is testable. See David L. Faigman, Making the Law Safe
for Science: A Proposed Rule for the Admission of Expert Testimony, 35 Washburn
L.J. 401, 407 (1996). Still another is to look at the underlying body of knowledge
supporting the expert’s testimony. See Kimberly M. Hrabosky, Kumho Tire v.
Carmichael: Stretching Daubert Beyond Recognition, 8 Geo. Mason L. Rev. 203,
229 (1999).
Imwinkelried at 2278 (auctioneers, bankers, railroad brakeman, business persons,

carpenters, farmers, security guards, and trapshooters historically viewed as having
expert knowledge based on training and experience).
11
This appears to relate to an earlier test, established by the D.C. Circuit in Frye v.
United States, 293 F. 1013 (D.C. Cir. 1923), which had required the trial judge to
determine whether the scientific evidence at issue had gained sufficient recognition
in the scientific community to justify admitting it as evidence. Id. at 1014. The
"general acceptance test" required judges to distinguish scientific principles that
had attained sufficient recognition from ones that had not. In 1975, Congress
promulgated the Federal Rules of Evidence, including Rule 702, which didn't
mention the general acceptance test. This gap was remedied in Daubert, Kumho,
and Joiner. See Fed. R. Evid. 702, Advisory Committee’s Notes (rule is “broadly
phrased” to expand the admissibility of expert testimony); Beech Aircraft Corp. v.
Rainey, 488 U.S. 153, 169 (1988) (adoption of Rule 702 followed general
approach of relaxing traditional barriers to "opinion" testimony.)
23
A. The District Court erred by failing to consider whether

Ortega may testify as a lay witness under F.R.E. 701, rather
than as an expert.
Federal Rule of Evidence 701 allows opinion testimony that is rationally
based on the witness’s perception, helpful to clearly understanding the witness’s
testimony or to determining a fact in issue, and is not based on scientific, technical,
or other specialized knowledge within the scope of Rule 702. Id. Law
enforcement officers often give opinion testimony under FRE 701. United States
v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992) (officer allowed to express lay
opinion that burn marks on victim’s back “were consistent with marks that would
be left by a stun gun,” an opinion rationally derived from his prior observations);
see Advisory Committee Notes to 2010 Amendment to Rule 701, citing United
States v. Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997).12 The same
witness may provide some testimony as an expert, and other testimony as a lay
witness. See United States v. White, 492 F.3d 380, 403 (6th Cir. 2007)
(commenting that the Rules “distinguish between lay and expert testimony, not
witnesses”); United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st Cir. 2005); cf.
United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006) (reversible error for
12
In Figuera-Lopez, law enforcement agents were allowed to testify that the
defendant was acting suspiciously without being qualified as Rule 702 experts;
however, Rule 702 applied where the agents testified on the basis of experience
that the defendant was using code words to refer to drug quantities and prices.
24
the trial court to fail to instruct the jury about the dual role of the government’s
case agents as both expert witnesses and fact witnesses).
1. Ortega's testimony that the AUC controlled the urban areas

of Urabá, Colombia, when and where the murders of Does
378 and 840 occurred, was based on his experience and
knowledge.
The District Court found that "the geographic areas where Plaintiffs’
decedents resided were brutalized by numerous warring factions..." Appx. at 85.
This was erroneous: the scope of the AUC's control is known and not genuinely in
dispute. Hundreds of thousands of people in the region experienced the AUC's
checkpoints, curfews, patrols, and having neighbors disappear overnight.
Thousands of plaintiffs have personal knowledge of the period of time Urabá was
in dispute among warring guerrilla factions, from the 1980s through about 1995,
and of the AUC's control of the region from about 1995 through about 2006, when
the AUC demobilized. A district court's finding is clearly erroneous when,
"although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed."
Elston v. Talladega County Bd. of Ed., 997 F.2d 1394, 1405 (11th Cir. 1993).
2. Ortega's testimony that it would have been highlyunlikely

for any other illegal armed group to have committed these
murders while the AUC was in control, was based on his
experience and knowledge.
25
The District Court failed to consider Ortega's testimony that the degree of
control exerted by the AUC was such that it would have been highly unlikely for
any other illegal armed group to have committed them. Appx. at 132. He also
testified that the AUC established curfews in areas they controlled. Id. No other
witness contradicted this testimony.
3. Ortega's testimony that the use of machine guns,

motorcycles, masks, confiscation of victims' identity
documents, and disposition of the victims' corpses were
modus operandi of the AUC, was based on his experience
and knowledge.
The District Court erroneously found that "Plaintiffs notably do not adduce
any specific evidence distinguishing AUC methodologies from brutalities
committed by other terror organizations, military operatives, narco-trafficking
criminals, or common criminals operating across Colombia during the time frames
in question." Appx. at 84. Ortega's Report does address this issue. Appx. at 133.
It describes the AUC's use of motorcycles and "long guns", the confiscation of
victims' identification papers in order to prove the murder to their commanders,
and either the disappearance of a corpse, or leaving it in a public place, depending
on the message the commanders wanted to send. Id. The identification card of a
murder victim is highly incriminating, and of no use to a common criminal.
B. Under Kumho Tire, the opinion of an expert with specialized

knowledge based on experience must be well-reasoned, consistent
26
with generally accepted principles used by the expert outside of

court, and not merely subjective or speculative.
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).13 The purpose of the Daubert inquiry
is to scrutinize proposed expert witness testimony to determine whether it has “the
same level of intellectual rigor that characterizes the practice of an expert in the
relevant field” so as to be deemed reliable enough to present to a jury. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999). Rule 702 requires the district court
judge to act as a gatekeeper to ensure that admitted expert testimony is relevant,
reliable, and has a factual basis. Daubert, 509 U.S. at 589.14
13
Daubert sets forth the following non-exhaustive factors for the district court to
consider when assessing an expert’s methodology: (1) whether the theory has been
or is capable of being tested; (2) whether the theory has been subjected to peer
review and publication; (3) the theory’s known or potential rate of error; and (4)
the theory’s level of acceptance within the relevant community. Daubert, 509 U.S.
at 593–94. The fourth Daubert factor, acceptance in the relevant community, was
derived from an earlier test in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
In Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), the District of Columbia
Court of Appeals abandoned the tests in Frye and Dyas v. United States, 376 A.2d
827 (D.C. 1977), adopting Federal Rule of Evidence 702 as the test for
admissibility in all cases, both civil and criminal, that have not yet begun trial.
14
“The 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.” Smith v. Ford Motor Co., 215 F.3d 713, 718
(7th Cir. 2000) However, “[w]hen an expert opinion is not supported by sufficient
evidence to validate it in the eyes of the law, or when indisputable record facts
render the opinion unreasonable, it cannot support a jury verdict.” Brook Group
Ltd. v. Brown & Williamson Tobacco Corp., 113 S. Ct. 2578, 2598 (1993).
27
In Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Supreme Court
held that a trial court's gatekeeping function under Daubert and Rule 702 applies to
all forms of expertise, including specialized knowledge based on experience.15 An
expert's experience-based opinion must be well-reasoned, consistent with the
generally accepted principles used by the expert outside of court, and not merely
subjective or speculative. Id. at 150. The Kumho Tire court found that the specific
factors in Daubert - which evaluate the reliability, falsifiability, and scientific
validity of expert testimony - may be inapplicable in some cases where experience,
and not traditional science, was the principal basis of the expert’s opinion. Id. at
141.16 In Kumho Tire, the expert in question wasn't a scientist, but an engineer.
Judges determine criteria for reliability on a case-by-case basis, relying “on
the nature of the issue, the expert’s particular expertise, and the subject of his
testimony.” 526 U.S. at 150 (“[W]e can neither rule out, nor rule in, for all cases
and for all time the applicability of the factors mentioned in Daubert, nor can we
15
The Advisory Committee Note to the 2000 amendment of Rule 702 states that:
Nothing in this amendment is intended to suggest that experience alone - or
experience in conjunction with other knowledge, skill, training or education
- may not provide a sufficient foundation for expert testimony. To the
contrary, the text of Rule 702 expressly contemplates that an expert may be
qualified on the basis of experience. In certain fields, experience is the
predominant, if not sole, basis for a great deal of reliable expert testimony.
16
In between Daubert and Kumho, this Court decided Carmichael v. Samyang Tire
Inc., 131 F.3d 1433 (11th Cir. 1997), holding that Daubert didn't apply because
expert didn't base his opinion on scientific theories, but on his experience. This
case was superceded by Kumho and doesn't use the right analysis.
28
now do so for subsets of cases categorized by category of expert or by kind of
evidence. Too much depends on the particular circumstances of the particular case
at issue.”) The factors may be considered "where they are reasonable measures of
the reliability of expert testimony." Id. at 152.17
A detailed analysis of this issue is given in United States v. Frazier, 387 F.3d
1244 (11th Cir. 2004) (en banc), where the Court found no abuse of discretion to
exclude the defendant’s expert opinion on “what he expected” to find, admitting
only his testimony on the standard procedures employed, the results of his tests,
and the most common types of evidence found at rape scenes. Id. at 1254; cf.
United States v. Miller, 395 F.3d 452 (D.C. Cir. 2005) (although finding no error,
the D.C. Circuit cautioned that expert should carefully explain that he is testifying
about his knowledge of drug organizations in general, not the particular drug
organization on trial); United States v. Vera, 770 F.3d 1232 (9th Cir. 2014)
(government permitted to introduce expert testimony on issues of gang culture and
structure, but improperly admitted expert testimony on drug jargon and coded
17
A proposed Advisory Committee Note to Rule 702 suggests the following may
also be valuable tests to apply: (1) whether the expert is proposing to testify about
matters growing naturally and directly out of research he conducted independent of
the litigation; has unjustifiably extrapolated from an accepted premise to an
unfounded conclusion; (3) has adequately accounted for obvious alternative
explanations; (4) is being as careful as he would be in his regular professional
work; and (5) whether the field of expertise claimed by the expert is known to
reach reliable results for the type of opinion the expert would give.
See http://www.uscourts.gov/rulestproprevid.pdf
29
language, since terms were encountered for the first time by the expert in that
case). In all of these cases, the proper remedy was a limiting or jury instruction to
avoid unfair prejudice and confusion.
A district court “must provide more than just conclusory statements of
admissibility or inadmissibility to show that it adequately performed its
gatekeeping function.” Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 782
(7th Cir. 2017). Although a “one sentence admissibility determination that did not
even reference Daubert by name” will fail under this standard, as long as a district
court “accurately outline[s] the Daubert framework’ at the outset of its analysis”
and reviews the relevant studies, it will suffice. Id. at 782-783. Here, the District
Court didn't hold a Daubert hearing, and only referenced Daubert in passing in the
Order on appeal, without outlining the Daubert framework. Appx. at 33. Ortega's
methods were found unreliable twenty-one pages later, without referring to the
Daubert case. Appx. at 54-56.
1. Law enforcement officers continue to serve as expert

witnesses after Kumho Tire.
After Daubert, some wondered whether a previously qualified expert, whose
methodology or technique hasn't necessarily been tested or subjected to peer
review, doesn't necessarily have a known or potential rate of error, or generally has
no standards controlling its operation, would now be precluded from testifying as
an expert. See Walter G. Amstutz & Bobby Marzine Harges, Evolution of

30
Controversy: The Daubert Dilemma: The Application of Daubert v. Merrell Dow
Pharmaceuticals Inc. to Expert Testimony of Law Enforcement Officers in
Narcotics-Related Cases, 23 U. Haw. L. Rev. 67 (2000). The answer is clearly
yes, particularly in narcotics, organized crime and gang cases.
Trial courts admit these kinds of expert opinions on the basis that the
characteristics of such enterprises are generally beyond the knowledge of the
average juror.18 See Jennifer L. Groscup & Steven D. Penrod, Battle of the
Standards for Experts in Criminal Cases: Police vs. Psychologists, 33 Seton Hall
L. Rev. 1141, 1150 (2003);19 Elizabeth L. DeCoux, The Admission of Unreliable
Expert Testimony Offered by the Prosecution: What’s Wrong with Daubert and
How to Make It Right, 2007 Utah L. Rev. 131, 132 (“[P]rosecutors fending off
challenges to the reliability of their expert witnesses enjoy a success rate of ninety-
18
This is also a requirement of Fed. R. Evid. 702. The testimony is unnecessary
and properly excludable where "all the primary facts can be accurately and
intelligibly described to the jury, and if they, as [persons] of common
understanding, are as capable of comprehending the primary facts and of drawing
correct conclusions from them as are witnesses possessed of special or peculiar
training, experience or observation in respect of the subject under investigation."
Salem v. United States Lines Co., 370 U.S. 31, 35 (1962). However, if such is the
case, then the court should consider whether the testimony is admissible under
Rule 701.
19
The Groscup study surveyed 1,800 cases involving both civil and criminal
experts, although the results used in the article were from a selection of experts
testifying in criminal cases. Id. "Police officers, who are admitted frequently,
represent the high end of the continuum of admissibility. Police officers were
admitted 85.7% of the time overall. ... Police officers continued to be admitted at a
consistently higher rate than all other experts over time." Id. at 1155.
31
two percent in trial courts and ninety-eight percent in appellate courts.”).
Ortega had a long career in the FBI investigating the AUC, and has
interviewed many top AUC commanders, including some of the witnesses in this
case. He was the FBI case agent in the underlying criminal prosecution of
Chiquita Brands. Chiquita took Ortega's deposition and had a full day to depose
him, but elicited almost nothing to discredit anything in his report.
a. Law enforcement officers as experts in drug, gang

and organized crime cases.
Law enforcement officers continue to testify as experts on organized crime
and gangs. United States v. Augustin, 661 F.3d 1105(11th Cir.2011) (expert
testimony on gang activity properly admitted, lay testimony on gang lexicology
properly limited); United States v Ledbetter, 929 F.3d 338 (6th Cir. 2019)
(recognizing testimony regarding inner-workings of organized crime as proper
subject of expert testimony, and upholding admission of police detective’s expert
opinion testimony on gang culture and customs as rationally based on his
perceptions during time as police officer); United States v. Mansoori, 304 F.3d
635, 653 (7th Cir. 2002) (describing the structure and boundaries of gang territory
and how "drug spot[s]" operate within the territory); United States v. Potts, No.
CRIM.A.00-060, 2000 WL 943219, at *1 (E.D. La. July 7, 2000) (allowing the
testimony of an expert witness concerning the packaging and pricing of cocaine).
32
b. Law enforcement officers as experts on modus

operandi.
The admission rate is also high for modus operandi testimony. Another
study, of 22 post-Kumho challenges to modus operandi witnesses offered by the
government in federal criminal cases, found that only two were even partially
successful. Both were because the witness went too far by offering legal
conclusions regarding the defendant’s guilt, and neither resulted in a reversal. See
D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of
Certainty Being Left on the Dock?, 64 Albany L. Rev. 99, 132 (2000).
In United States v. Escalante, 221 F. App'x 946, 948 (11th Cir. 2007) a DEA
agent was qualified as an expert on the common practices of Mexican drug
trafficking organizations. He testified that they employ load coordinators, who
use prepaid cell phones to communicate with truck drivers and evade law
enforcement, and that members of these organizations do not include outsiders
when they are transporting drugs. Id. at 948. The 11th Circuit held the testimony
admissible and that "ordinary law enforcement techniques are reliable methods and
such testimony may be helpful to a jury's understanding of certain conduct." Id. at
949, citing Fed.R.Evid. 702; U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2006);
United States v. Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006).
In U.S. v. Watson, 171 F.3d 695 (D.C. Cir. 1999) the D.C. Circuit held that
expert testimony regarding the modus operandi of drug dealers, even if elicited
33
through mirroring hypotheticals, doesn't violate Federal Rule of Evidence 704(b).
Id. at 703. The witness had testified that "[m]y experience easily tells me that if
any one individual possesses what's equivalent to 700 bags of crack cocaine [sic] is
in the business of making money selling drugs in the streets of Washington, D.C.
or whatever." Id. In United States v. Gaines, 105 F. App'x 682 (6th Cir. 2004), a
DEA agent testified as an expert on the "tools of the drug trade to establish the
modus operandi of drug traffickers." Id. at 699. These are the three possible
circuits whose law could apply to this case. It should be uncontroversial for a law
enforcement officer to testify about the modus operandi used by the Colombian
terrorist group responsible for these murders. Following Escalante, the Court
should hold that ordinary law enforcement techniques are inherently reliable and
helpful to the trier of fact. 221 F. App'x at 948.
c. Law enforcement officers as experts in ordinary

investigative methods.
Law enforcement officers testify as experts on ordinary investigative
techniques in other contexts as well. A leading case in this circuit, United States v.
Paul, involved handwriting analysis. 175 F.3d 906, 911 (11th Cir. 1999)
(affirming the trial court’s decision to allow a F.B.I. document examiner to testify
that the defendant authored an extortion note).
Many common forensic techniques wouldn't pass a strict application of the
Daubert test. Nevertheless, they are reliable enough. In United States v. Willock,
34
696 F. Supp. 2d 536 (D. Md. 2009), the district court limited a firearm-and-
toolmark examiner’s testimony, excluding testimony that it was a "practical
impossibility" for any other firearm to have fired the cartridges, other than the one
at issue. Id. at 574. See United States v. Glynn, 578 F. Supp. 2d 567, 574–75
(S.D.N.Y. 2008) (permitting firearm-and-toolmark examiner to testify only that a
bullet “more likely than not” came from the suspect’s gun, but not to his degree of
certainty); United States v. Monteiro, 407 F. Supp. 2d 351, 355 (D. Mass 2006)
(allowing firearms expert to testify that a bullet came from a suspect’s gun “to a
reasonable degree of certainty” and prohibiting the witness from framing his
conclusion in terms of ”an exact statistical certainty”). See United States v. Crisp,
324 F.3d 261, 267 (4th Cir. 2003) (referring to a fingerprint expert who “was
unable to reference any study establishing that no two persons share the same
fingerprint; she was able only to testify that no study had ever proven this premise
false”); United States v. Van Wyk, 83 F. Supp. 2d 515, 523 (D. N.J. 2000)
(allowing the testimony of expert on “forensic stylistics” - the identification of an
author via a comparison with language used in a known sample); Michael J. Saks,
Banishing Ipse Dixit: The Impact of Kumho Tire on Forensic Identification
Science, 57 Wash. & Lee L. Rev. 879, 883 (2000) (“Forensic ... examinations are
overwhelmingly subjective affairs.”).
35
Contrast these cases with Ortega's opinions that the use of machine guns,
motorcycles and masks were modus operandi of the AUC, and that the AUC had
total control over the urban areas of Urabá, Colombia during the time period of
these murders. His opinion, that the totality of the circumstances makes it more
likely than not that the AUC was responsible, is based on his experience applying
the probable cause standard.
C. Probable cause, not guilt beyond a reasonable doubt, is the

standard to charge someone with a crime and put them on trial.
The District Court is requiring a showing akin to clear and
convincing evidence, or guilt beyond a reasonable doubt, for each
murder.
The methodology used by Agent Ortega was to look at the totality of the
evidence, and determine whether the murders were "probably" committed by the
AUC. This is the same standard used by law enforcement officers to apply for a
search or arrest warrant, and is equivalent to a finding that the defendant
"probably" committed a crime.
The standard applied at the pretrial phase in criminal cases is whether the
government has established "probable cause." United States v. Mechanik, 106 S.
Ct. 938, 941-42 (1986). The standard is commonly understood to be that a crime
was probably committed, and the accused probably did it.20 The probable cause
20
The standard is easier to meet than this simple rule would suggest. See Illinois
v. Gates, 462 U.S. 213 (1983), which replaced the Aguilar–Spinelli test for
probable cause with the "totality of the circumstances" test. See Aguilar v. Texas,
36
inquiry is a flexible one in which the court must consider the totality of the
circumstances. United States v. $121,100.00, 999 F.2d 1503, 1506 (11th Cir.
1993). The Court considers each circumstance to determine how much weight
should be assessed to it as part of the whole. See United States v. $36,634.00, 103
F.3d 1048, 1054 (1st Cir.1997).21
For Does 378 and 840, the victims' bodies were found riddled with bullets at
times and places coinciding with the AUC's exclusive control. Eyewitnesses
identified and named the abductor in case Doe 840, but couldn't prove he was a
member of the AUC. Witnesses observed machine guns, motorcycles, masks, and
other modus operandi of the AUC, such as stealing the victims' ID cards, and
curfews, patrols and checkpoints. Doe 378 and Doe 840 have death certificates,
autopsy reports, correspondence with prosecutors and a war crimes tribunal, and
were paid thousands of dollars by agency of the Colombian government after the
agency found them to be victims of war crimes. If a police officer came into court
378 U.S. 108 (1964), Spinelli v. United States, 393 U.S. 410 (1969), which have
now been overruled. In this civil case, the "totality of the evidence" test applies.
See § I (B)(5) infra.
21
Aside from the instant situation, in which a civil case follows a criminal one,
civil and criminal laws also overlap in civil asset forfeiture cases. To prevail in a
civil forfeiture case, the government must establish "probable cause for belief that
a substantial connection exists between the property to be forfeited and the
criminal activity defined by the statute." United States v. $4,255,625.39, 762 F.2d
895, 903 (11th Cir. 1985); United States v. Four Parcels of Real Property, 941 F.2d
1428, 1440 (11th Cir.1991) (en banc) (stating that the standard for probable cause
in forfeiture cases is "the same standard used to determine the legality of arrests,
searches, and seizures in criminal law").
37
with an application for a search warrant with all this evidence, would he have made
a showing of probable cause? It is the same as showing that the AUC "more likely
than not" committed the murders.
D. Ortega may offer expert testimony about the ultimate issue in the
case; whether, in his opinion, the AUC was responsible for these
crimes.
Testimony in the form of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier
of fact.
Federal Rule of Evidence 704 (a). Federal courts initially prohibited testimony on
an ultimate issue of fact that the trier of fact had the responsibility of determining.
See David H. Kaye et al., The New Wigmore, A Treatise on Evidence: Expert
Evidence, 12-13 (Richard D. Friedman ed., 2004). Rule 704 of the Federal Rules
of Evidence abolished the ultimate issue rule, finding it "was unduly restrictive,
difficult of application, and generally served only to deprive the trier of fact of
useful information." Fed. R. Evid. 704 advisory committee's note (citations
omitted). See United States v. McSwain, 197 F.3d 472, 482-83 (10th Cir. 1999)
(agent testified that the defendant and his wife were responsible for drug sales,
which the court held was permissible under Rule 704). Therefore, Ortega should
be permitted to testify that, in his opinion, the AUC more likely than not killed
38
Does 378 and 840. The real objection to Ortega is that a jury might assign too
much weight to his opinions, but this is easily remedied.22
III. The District Court abused its discretion by not considering Colombian
government documents, insofar as the Plaintiffs could introduce them
with witnesses.
A. The District Court failed to consider the most important

documentary evidence in each case, including death certificates,
autopsy reports, the findings of a Colombian aid agency, and a
war crimes tribunal, any one of which creates a plausible
inference that the AUC committed the murders.
Doe 378 and Doe 840 submitted the following Colombian government
documents to oppose summary judgment:
1. The documentary evidence in Case Doe 378.
a. A three page letter from the Colombian aid agency

Acción Social, entitled “Resolutionary Response.”
Appx. at 143. The letter states that it is a legal
notification pursuant to Article 29 of the National
Constitution and Article 44 of the Procedural
Administrative Code. The letter further states that Doe
378 was summoned to appear before the Committee for
Administrative Reparations, for a "Technical Evaluation
on the Accreditation of the Quality of Victimhood, Case
Settlement No. 57739." Under "General Considerations,"
the letter states that the program was created by Decree
1290 of 2008, and describes various other Colombian
laws that apply to the program. Appx. at 144. The third
22
This is properly a subject for a motion in limine or jury instruction, not summary
judgment. Rule 403 of the Federal Rules of Evidence provides that "[t]he court
may exclude relevant evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence." Id.
39
page of the letter explains the evidence evaluated in

determining whether to award benefits to Doe 378,
including a book by academic Alejandro Reyes, the
website verdadabierta.com, "journalistic documents" and
"other sources studied" regarding "the expansion of the
'paramilitary project.'" Id. Finally, the letter "recogniz[ed]
and grant[ed] the status of victim of violation of human
rights under the criteria of Decree 1290 of 2008" to the
decedent in Doe 378's case. Id. The letter was translated
by Jaime Alberto Ortiz Mora, who is certified by the
Colombian Ministry of Exterior Relations to translate
from Spanish into English. Id.
b. A letter from the Fiscalia, or prosecutor's office, in

Chigorodó, Antioquia, signed by Eligio Manuel Tuñon
Anaya, Branch Office Attorney Coordinator, regarding
the death of the decedent in Doe 378's case, in
investigation No. 2584. Appx. at 140. It says that
"[s]uch investigation involves HOMICIDE, and the
Deceased is Mr. [redacted], undocumented (No ID
number known). The event occurred on April 9, 1997 at
the Terpel gas station of the municipality of Chigorodó
(Ant.). According to the autopsy, his death was produced
by a 'natural and direct consequence of a traumatic shock
arising from multiple gun shoot wounds made by a
firearm projectiles [sic] (of single load and low velocity),
which are naturally lethal.'" The letter was notarized by
Ramses Escobar Henao, the “sole notary" in Chigorodó,
and translated by Jaime Alberto Ortiz Mora, who is
certified by the Colombian Ministry of Exterior Relations
to translate from Spanish into English. Id.
c. A letter from the Hospital Maria Auxilliadora in the

Municipality of Chigorodó, Antioquia, regarding an
autopsy performed on the decedent. The letter states that
“His death was violent (firearm).” Appx. at 139. The
letter further states that the cause of death was strictly
confidential and that it has no criminal investigation
purpose and cannot be used as legal evidence pursuant to
40
Decree 1633/97 Article 75.23 The letter was notarized by

Estrella Paternina Mendoza, the “sole notary" in
Apartadó, and translated by Jaime Alberto Ortiz Mora,
who is certified by the Colombian Ministry of Exterior
Relations to translate from Spanish into English. Id.
2. The documentary evidence in Case Doe 840.
a. A letter from the Colombian aid agency Acción Social,

captioned: "REF: Individual Reparation by
Administrative Means. Victim: [redacted] Payment
Information. Application No. 16817. Victimizing event:
HOMICIDE." Appx. at 153. It states that pursuant to
Article 5 Decree 1290 of 2008, the General Directorate
of Accion Social has ordered to pay Doe 840 a Value of
11108250 Colombian pesos. Id. (about $3,700. US
dollars). The letter was translated by Jaime Alberto Ortiz
Mora, who is certified by the Colombian Ministry of
Exterior Relations to translate from Spanish into English.
Id.
b. A death certificate for the victim in the case of Doe 840.

Appx. at 151. The death certificate shows that the victim
died on a public road in Barrio La Paz in Apartadó,
Antioquia on May 2, 2001. Under "Possible Manner of
Death," the box for "violent" is checked. It lists the
victim's domicile address as "Brigada # VII. Id. (7th
Brigade - the victim was a soldier on leave) It's signed
by Jairo A. Lozada V., who's identified as a coroner for
the Unidad Local Apartado - Med. Legal, which is the
local unit of the forensic medicine agency in Apartadó,
Antioquia, Colombia. It bears the caption of DANE, the
National Administrative Department of Statistics, and of
the Colombian Ministry of Health. The letter was
translated by Jaime Alberto Ortiz Mora, who is certified
by the Colombian Ministry of Exterior Relations to
translate from Spanish into English. Id.
23
Counsel could not locate Decree 1633/97 and doesn’t know what this means.
41
3. Additional documents in Case Doe 840 submitted nunc pro

tunc.
Subsequent to briefing the deadline, but before the District Court ruled on
Chiquita's Summary Judgment Motion, Doe 840 submitted additional documents,
filed as Sealed Exhibit 3 to a nunc pro tunc "Status Report." DE 2540-4. These
late documents included:
a. A seven-page autopsy report of the victim, performed on

May 2, 2001 by Jairo Lozada Vidarte, Médico Forense
Apartadó (Apartadó Forensic Doctor). Appx at 204-210.
The report is in Spanish, is not translated, and wasn't
considered by the District Court. Nevertheless, the
diagram of the body shows nine bullet wounds in the
victim's head and chest. Appx. at 210. Each page bears
the notary stamp of Guillermo Ceren Villorina, the
Notario Unico (Sole Notary) of Turbó, stamped July 31,
2019. It has not been possible to locate Dr. Lozada,
eighteen years later, partly because of the circumstances
of the war.
b. A letter from Stefania Restrepo Lara, Asistente de Fiscal

III (Assistant of Prosecutor III) from the Fiscalía
(Attorney General's Office) in Medellín, Colombia, dated
July 22, 2019. Appx. at 211. The letter, in Spanish,
states that the victim is registered in the Sisteme de
Información de Justicia y Paz (System of Information of
Justice and Peace) and assigned number 369050. The
letter states that paramilitary commander Raul Hasbun
confessed to this murder on June 15, 2017. [counsel is
unsure whether this is a final decision, or if there is a
published final decision]. There is also an unsigned form
listing information about case 369050 at Appx. 212.
These documents bear the notary stamp of Guillermo
Ceren Villorina, the Notario Unico (Sole Notary) of
Turbó, stamped July 31, 2019.
42
These documents illustrate the types of evidence which are generally
available to plaintiffs in the MDL.24 Counsel tried to obtain Apostille stamps for
the various types of documents relied on, using the online document submission
form of the Colombian Ministerio de Relaciones Exteriores, also known as the
Cancillería (Ministry of Foreign Relations, or Chancellery). See Wolf Decl., Appx
at 241-243. The results, received by email in Spanish, are at Appx. 214-216. It
appears that birth and death certificates are eligible for Apostilles, and admissible
without further authentication, but that no other documents are. Nevertheless,
these other documents should all be admissible through other qualified witnesses.
B. These documents are admissible as business records.
Business records may be admitted so long as a qualified witness testifies that
they were made in the regular course of a business activity and that it was the
regular practice of the business to make such a record. FRE 803(6). The
admission of business records is based on the "systematic checking, the regularity
24
The Appendix also contains an untranslated copy of a decision of a Colombian
military court regarding General Rito del Rio Alejo, who commanded the 17th
Brigade of the Colombian army in Urabá, and is in a military prison for his
activities related to the AUC. Appx. at 217-225. Also in the Appendix is an
unsigned copy of the declaration of a Confidential Witness, who will testify from
personal knowledge about the murder of a dozen Chiquita employees, who were
taken from a bus by the FARC. The witness will testify that Chiquita's farm,
where the victims worked, was being used as a supply base by the AUC. Chiquita
declined to depose him in Colombia, and he could not obtain a visa to testify in the
US. Appx. at 197-201. He produced his visa application and denial to Chiquita in
discovery.
43
and continuity which produce habits of precision, by actual experience of business
in relying on them, or by duty to make an accurate record as part of a continuing
job or occupation." Notes to Advisory Committee to Rule 803(6). The Rule,
Advisory Committee Notes, and case law all show that "another qualified witness"
could testify that they were made in the regular course of a business activity, and
that it was the regular practice of the business to make such a record.
The Plaintiffs offered expert witness Carlos Eusse, a former employee of
Accion Social, to explain the standards used to grant or deny benefits to an
applicant. Mr. Eusse wasn't paid and didn't write a report, and Chiquita didn't take
his deposition through a Hague Convention Request, as Plaintiffs had to do for
other Colombian witnesses. The District Court only mentioned Eusse once, in a
footnote. Appx. at 41 n 16. Although Eusse wasn't the author of the
correspondence in the bellwether cases, his work at Accion Social is sufficient for
him to testify that the letters and checks appear genuine, and to have been made in
the course of Accion Social's regular business practices, and reflect that it was the
regular practice of Accion Social to make them. Plaintiffs could introduce the
autopsy reports with a forensic pathologist, and correspondence from various
offices using retired employees of those offices, comparable to Eusse. At this
stage, the Plaintiffs need only make a prima facie showing of evidence that "could"
be reduced to an admissible form at trial.
44
1. Although the authors of the documents may be impossible

to locate after 20 years, plaintiffs may introduce them with
another qualified witness.
The District Court may consider hearsay on a motion for summary judgment
if the statement can be reduced to admissible evidence at trial. Jones v. UPS
Ground Freight, 683 F.3d 1283, 1293 (11th Cir 2002); Ali v. District of Columbia
Gov't., 810 F.Supp.2d 78, 83 (D.D.C. 2011) (nonmovant is not required to produce
evidence in form that would be admissible at trial, as long as evidence is capable of
being converted into admissible evidence); see Hardrick v. City of Bolingbrook,
522 F.3d 758, 761 (7th Cir. 2008) ("Evidence submitted on summary judgment
need not be admissible in form ..., but it must be admissible in content").
Rule 803(6)(D) permits "another qualified witness" - aside from the author
of the document - to introduce it long as he is sufficiently knowledgable. Equity
Lifestyle Properties, Inc. v. Florida Mowing and Landscape Services, Inc., 556
F.3d 1232 (11th Cir. 2009) (district court properly admitted invoices into evidence
where the invoices were trustworthy and kept in the regular course of business; the
witness who introduced them was not their author, but was a manager who could
testify about how the invoices were made according to his notes); United States v.
Dixon, 123 F.3d 192 (5th Cir. 1997) (in prosecution of cocaine conspiracy, district
court didn't abuse its discretion in admitting pager rental records of a business;
although business owner testified that he didn't personally create the records or
45
know whether they were true or accurate, he relied on the accuracy of them in the
ordinary course of business). Additionally, the plaintiffs themselves can testify
that they cashed the checks and were paid.
C. These documents are also admissible as public records.
Rule 803(8) provides another exception to the hearsay rule for a record or
statement of a public office if it sets out the office’s activities; a matter observed
while under a legal duty to report, factual findings from a legally authorized
investigation; and the opponent does not show that the source of information nor
or other circumstances indicate a lack of trustworthiness. Id. The findings of
Acción Social in the three page letter sent to Doe 378 meet all these criteria. See §
III (A) supra, Appx. at 143. The District Court made a clearly erroneous finding
by overlooking this document. Appx. at 52. This document gives notice of the
findings of an administrative agency established by law, and should be a sufficient
basis to create an inference of AUC responsibility.
D. The District Court erred by imposing a requirement to obtain

Apostille stamps on Colombian government documents, which
isn't possible for most of them.
A foreign public document is self-authenticating if (1) it “purports to be
signed or attested by a person who is authorized by a foreign country’s law to do
so,” and (2) it is accompanied by a “final certification” – either by certain officials
enumerated in the rule or pursuant to treaty – of the genuineness of the signature
46
and official position of the signer or attester. Fed. R. Evid. 902(3). There is also a
“savings clause” in Rule 902(3)(A) which permits a document to be treated as
“presumptively authentic” without final certification if two conditions are met: (1)
“all parties have been given a “reasonable opportunity to investigate the
document’s authenticity and accuracy,” and (2) “good cause” exists to excuse the
missing final certification.25 United States v. McGowan, 552 Fed. Appx. 950, 954
(11th Cir. 2014). The “good cause” requirement is satisfied only if the proponent
of the evidence can demonstrate it was “unable to satisfy” the rule’s requirements
for authentication “despite [] reasonable efforts.” Starski v. Kirzhnev, 682 F.3d 51,
54 (1st Cir. 2012) (citing United States v. De Jongh, 937 F.2d 1, 4 (1st Cir. 1991)
(quoting Fed. R. Civ. P. 44 advisory committee note).
According to the Foreign Affairs Manual, U.S. consular officers abroad may
only authenticate foreign documents for use in U.S. courts in countries that are not
parties to the Hague Apostille Convention. See 7 FAM 871 b. (1)(b).26 Colombia
is a party to the Hague Apostille Convention, but of all the documents obtained by
the Plaintiffs, only the death certificates are signed by individuals registered by the
25
In addition, Federal Rule of Evidence 902(12), allows self-authentication of
“Certified Foreign Records of a Regularly Conducted Activity,” if the record meets
the requirements of Rule 803(6)(A)-(C), and contains a certification “signed in a
manner that, if falsely made, would subject the maker to a criminal penalty in the
country where the certification is signed.” The proponent must also meet the notice
requirements of Rule 902(11).
26
Online at https://fam.state.gov/fam/07fam/07fam0870.html.
47
Ministry of Exterior Relations for Apostilles. Counsel submitted a declaration
about his efforts to obtain Apostilles, and conclusion that for the aforementioned
documents, Apostilles are only available for birth and death certificates. Appx. at
241-243. Good cause exists to invoke the savings clause, since no other method
for obtaining a "final certification" exists.
CONCLUSION
For the foregoing reasons, the Court should VACATE the Order and
Judgment as it pertains to Does 378 and 840, with an instruction to REMAND the
case to the U.S. District Court for the District of Columbia.
Respectfully submitted,
Paul Wolf
________________________
Paul Wolf, DC Bar #480285
Attorney for Does 378 and 840
P.O. Box 21840
Washington, D.C. 20009
(202) 431-6986
paulwolf@yahoo.com
March 4, 2020
48
Certificate of Compliance
with Type-Volume Limitation
I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 12,608 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 11th Cir. R. 32-4, and
2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it has
been prepared using Microsoft Word in Times New Roman, 14-point font.
/s/ Paul Wolf

_________________
Paul Wolf
Certificate of Service
I hereby certify that on this 4th day of March, 2020, I served copies of this
brief by U.S. Priority Mail counsel for all parties as detailed below. Counsel for
Defendant Ordman has not appeared in the appeal, and when the District Court
granted my motion to compel the identities and contact information for
"Individuals A-J," the preceding defense counsel, Covington & Burling, responded
by accepting service instead of disclosing his address, which I do not know.
Defendants Steven Kreps and Joel Raymer were dismissed from the case.
/s/ Paul Wolf

_________________
Paul Wolf
Two copies to:
Michael Cioffi, Esq.

Blank Rome, LLP
201 E 5th St #1700
Cincinnati, OH 45202
Counsel for Appellee Chiquita Brands, International, Inc.
and Appellee John Ordman
49
Two copies to
Ardith Bronson, Esq.

DLA Piper, LLP
200 South Biscayne Boulevard
Suite 2500
Miami, FL 33131-5341
Counsel for Appellees Cyrus Friedheim & Robert Kistinger
One copy to
Elissa Joy Preheim, Esq.

Arnold & Porter, LLP
601 Massachusetts Ave, NW
Washington, DC 20001-3743
Counsel for Appellee Robert Olson
50

Chiquita Daubert Appeal - Appellants&#39; Opening Brief

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Case: 19-13926 Date Filed: 03/04/2020 Page: 1 of 73

Case No. 19-13926-C

UNITED STATES COURT OF APPEALS

Does 1 Through 976, et al. v.

On Appeal from the United States District Court

APPELLANTS DOE 378 AND DOE 840

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

cases as personal representatives of the estates of the deceased. They represent

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

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 Daubert Appeal - Appellants' Opening Brief

Chiquita Daubert Appeal - Appellants' Opening Brief