Murphy v. BP Exploration & Production Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LORINZO MURPHY CIVIL ACTION

VERSUS No. 13-1031

BP EXPLORATION & PRODUCTION SECTION I

INC., ET AL.

ORDER & REASONS

Before the Court is a motion1 in limine to exclude the opinions of plaintiff ’s

medical causation expert, Dr. Jerald Cook (“Cook”), filed by defendants, BP

Exploration & Production, Inc., BP America Production Company, and BP p.l.c.

(collectively, “BP”). BP has also filed a motion2 for summary judgment, contending

that if the Court grants BP’s motion in limine, then summary judgment will also be

warranted because plaintiff, Lorinzo Murphy (“Murphy”), will lack necessary expert

testimony. Murphy opposes3 both motions. For the following reasons, the Court

grants BP’s motion in limine and BP’s motion for summary judgment.4

1 R. Doc. No. 27 (motion in limine); R. Doc. No. 43 (reply memorandum).

2 R. Doc. No. 28.

3 R. Doc. No. 38 (opposition to motion in limine); R. Doc. No. 46 (sur-reply

memorandum with respect to motion in limine); R. Doc. No. 37 (opposition to motion

for summary judgment).

4 This opinion is nearly identical to this Court’s opinion resolving a similar motion in

limine and a motion for summary judgment in Novelozo v. BP Exploration &

Production, Inc., et al., Civil Action No. 13-1033. The plaintiff in Novelozo also

retained Cook to serve as an expert witness, and the motions in both cases were

submitted contemporaneously. In each case, the parties’ arguments identified the

same issues, and Cook’s opinions suffered from the same infirmities.

I. BACKGROUND

The instant action is a “B3” case arising out of the 2010 Deepwater Horizon oil

spill in the Gulf of Mexico.5 B3 cases involve “claims for personal injury and wrongful

death due to exposure to oil and/or other chemicals used during the oil spill response

(e.g., dispersant).” See In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of

Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1,

2021) (Barbier, J.). During the course of the MDL proceedings, Judge Barbier

approved the Deepwater Horizon Medical Benefits Class Action Settlement

Agreement, which included a Back-End Litigation Option (“BELO”) permitting

certain class members to sue BP for later-manifested physical conditions. Id. at *2.

The B3 plaintiffs, by contrast, either opted out of the class action settlement

agreement or were excluded from its class definition. Id. at *10 n.3. In any event,

“B3 plaintiffs must prove that the legal cause of the claimed injury or illness is

exposure to oil or other chemicals used during the response.”6

Murphy alleges that from June through August of 2010 he did oil clean-up

work on beaches in Florida following the Deepwater Horizon oil spill.7 According to

Murphy, he was exposed to both oil and dispersants.8 Murphy also alleges that, as a

result of this exposure, he suffers from, among other things, respiratory problems,

5 R. Doc. No. 9 (“Severing 780 Cases in the B3 Pleading Bundle and Re-allotting Them

Among the District Judges of the Eastern District of Louisiana”) (Barbier, J.).

6 R. Doc. No. 9, at 53 (“Case Management Order for the B3 Bundle”) (Barbier, J.); see

id. at 54 (noting that “proving causation will be a key hurdle for the B3 plaintiffs.”).

7 R. Doc. No. 1, at 8.

8 Id. at 5.

vision problems, headaches, and sinus problems.9 Murphy filed the instant civil

action, seeking a bench trial with respect to his claims of negligence under general

maritime law.10

Murphy relies on Cook, a retired Navy physician with a master’s degree in

environmental toxicology, to provide a medical causation analysis supporting

Murphy’s claim that his exposure to oil and dispersants caused his health problems.11

Cook is board certified in occupational medicine, public health, and general

preventive medicine. Cook is also a fellow of the American College of Occupational

and Environmental Medicine.12

Cook reviewed Murphy’s medical records, employment records, claim

documents, other records, and two additional expert reports.13 With respect to the

chemicals that Murphy encountered during his clean-up work, Cook “primarily relied

on the exposure assessment conducted by Rachael Jones, Ph.D., CIH.”14 Based on

Jones’ exposure report, Cook noted that “Murphy was exposed to volatile organic

compounds, polycyclic aromatic hydrocarbons, elevated fine particulate matter

(PM2.5), crude oil or oily water, sand, and indirectly exposed to dispersants.”15

9 Id. at 7.

10 R. Doc. No. 1, at 10–15; R. Doc. No. 24 (scheduling order), at 3 (noting, after a

conference with counsel, that the matter is set for trial “before the District Judge

without a jury.”) (emphasis in original).

11 R. Doc. No. 27-3, at 1–2.

12 Id.

13 Id. at 4.

14 Id. at 7. Dr. Rachael Jones (“Jones”) produced a report: Exposures of Mr. Lorinzo

Murphy.

15 R. Doc. No. 27-3, at 8–9.

On November 29, 2021, Cook conducted a phone interview with Murphy.16 As

part of this interview, Murphy described his oil clean-up work and the health

symptoms he has experienced.17 Cook did not perform a physical examination,

medical assessment, or discuss a treatment plan.18

Cook’s report is organized into several sections. The first outlines his

qualifications, which BP does not challenge.19 The next sections identify materials

that Cook reviewed to formulate his opinion. Next, Cook’s report describes the

methodology he used in connection with his general causation analysis related to the

following diseases: chronic rhinosinusitis, respiratory illness, and dry eye and

conjunctivitis. Cook then details a specific causation analysis with respect to Murphy

and those diseases.20

In the context of his general causation analysis, Cook performed a “literature

review of peer-reviewed studies,” where his sources were “selected based on the

quality of the study and study design.”21 According to Cook, “the hierarchy of clinical

evidence shows that systematic reviews and metanalyses are the most reliable in

predicting clinical outcomes because they are designed to include the most relevant

collection of available studies.”22

16 Id. at 4.

17 Id. at 4–6.

18 Id.

19 R. Doc. No. 27-1, at 8.

20 See, e.g., R. Doc. No. 27-3, at 1.

21 Id. at 14.

22 Id. at 14–15.

In connection with his literature review, Cook consulted the Bradford Hill

factors, which environmental toxicologists employ for causation analysis.23 The

Bradford Hill factors include: (1) temporal relationship; (2) strength of the

association; (3) dose-response relationship; (4) replication of the findings; (5)

biological plausibility; (6) consideration of alternative explanations; (7) cessation of

exposure; (8) specificity of the association; and (9) consistency with other

knowledge.24 Cook explains that “[d]rawing causal inferences after finding an

association and considering these factors requires judgment and analysis to

determine if a cause-and-effect relationship exists or not.”25

In terms of general causation, Cook’s report concluded that “exposure to

volatile organic compounds, polycyclic aromatic hydrocarbons, elevated fine

particulate matter (PM2.5), and crude oil or oily water can result in chronic

rhinosinusitis, respiratory illness, and dry eye and chronic conjunctivitis[.]”26

Ultimately, Cook opined that “[i]t is within a reasonable degree of medical certainty

that” Murphy’s exposures while performing oil spill clean-up work “are a significant,

23 Id. “Sir Bradford Hill was a world-renowned epidemiologist who articulated a nine-

factor set of guidelines in his seminal methodological article on causality inferences.”

Jones v. Novartis Pharm. Corp., 234 F. Supp. 3d 1244, 1267 (N.D. Ala. 2017) (internal

citations and quotations omitted).

24 R. Doc. No. 27-3, at 16.

25 Id. at 15.

26 Id. at 34.

contributing cause” of “his chronic symptoms of frontal headaches, eye irritation,

blurred vision, cough, and shortness of breath.”27

II. STANDARDS OF LAW

A. Motion in Limine

As an initial matter, the Fifth Circuit has “noted that the importance of the

trial court’s gatekeeper role is significantly diminished in bench trials, as in this

instance, because, there being no jury, there is no risk of tainting the trial by exposing

a jury to unreliable evidence.” Whitehouse Hotel Ltd. P’ship v. C.I.R., 615 F.3d 321,

330 (5th Cir. 2010) (citing Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)). Courts

have taken this point into consideration when denying Daubert motions filed before

bench trials. See, e.g., Trevelyn Enters., L.L.C. v. SeaBrook Marine, L.L.C., No. 18-

11375, 2021 WL 65689, at *2 (E.D. La. Jan. 7, 2021) (Lemmon, J.). But, “[a]lthough

the ‘gate-keeper’ role may be diminished, the Court is still required to perform its

gate-keeping function.” United States v. E.R.R. LLC, No. 19-2340, 2020 WL 2769881,

at *3 (E.D. La. May 28, 2020) (Fallon, J.) (citing Metavante Corp. v. Emigrant Sav.

Bank, 619 F.3d 748 (7th Cir. 2010)).

Federal Rule of Evidence 702 governs the admissibility of expert witness

testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 588 (1993);

United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:

27 Id. Cook’s conclusion does not specifically link Murphy’s symptoms to the illnesses

that Cook considered, i.e. chronic rhinosinusitis, respiratory illness, and dry eye and

conjunctivitis.

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

“To qualify as an expert, ‘the witness must have such knowledge or experience in [his]

field or calling as to make it appear that his opinion or inference will probably aid the

trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir.

2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)).

Daubert “provides the analytical framework for determining whether expert

testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,

243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to

the Daubert framework, which requires a trial court to make a preliminary

assessment to “determine whether the expert testimony is both reliable and

relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir.

2004); see Kumho Tire, 526 U.S. at 147.

A number of nonexclusive factors may be considered with respect to the

reliability inquiry, including: (1) whether the technique has been tested, (2) whether

the technique has been subjected to peer review and publication, (3) the technique’s

potential error rate, (4) the existence and maintenance of standards controlling the

technique’s operation, and (5) whether the technique is generally accepted in the

relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry

must remain flexible, however, as “not every Daubert factor will be applicable in every

situation; and a court has discretion to consider other factors it deems relevant.” Guy

v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex.

Children’s Hosp. Select Plan, 167 F. App’x 377, 381 (5th Cir. 2006) (“[A] trial judge

has ‘considerable leeway’ in determining ‘how to test an expert’s reliability.’” (quoting

Kumho Tire, 526 U.S. at 152)). “Both the determination of reliability itself and the

factors taken into account are left to the discretion of the district court consistent

with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301

(5th Cir. 2000).

As for determining relevancy, the proposed testimony must be relevant “not

simply in the way all testimony must be relevant [under Rules 401 and 402], but also

in the sense that the expert’s proposed opinion would assist the trier of fact to

understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d

581, 584 (5th Cir. 2003). “There is no more certain test for determining when experts

may be used than the common sense inquiry whether the untrained layman would be

qualified to determine intelligently and to the best degree the particular issue

without enlightenment from those having a specialized understanding of the subject

involved in the dispute.” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003)

(quoting Fed. R. Evid. 702, Advisory Committee Note).

“[W]hen expert testimony is challenged under Rule 702 and Daubert, the

burden of proof rests with the party seeking to present the testimony.” Kennedy v.

Magnolia Marine Transp. Co., 189 F. Supp. 3d 610, 615 (E.D. La. 2016) (Africk, J.).

The Court applies a preponderance of the evidence standard when performing its

gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. And the

Court is not bound by the rules of evidence—except those rules concerning

privileges—when doing so. See id.

B. Summary Judgment

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment

always bears the initial responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce

evidence negating the existence of a material fact; it need only point out the absence

of evidence supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co.,

780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory

allegations should suffice to require a trial when there is no evidence to support them

even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine issue of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

“Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . the material may be

presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore

Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

The party responding to the motion for summary judgment may not rest upon the

pleadings but must identify specific facts that establish a genuine issue. See

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255.

III. LAW & ANALYSIS

A. BP’s Motion in Limine

B3 plaintiffs have the burden of proving that “the legal cause of the claimed

injury or illness is exposure to oil or other chemicals used during the response.” In re

Oil Spill by Oil Rig “Deepwater Horizon”, 2021 WL 6053613, at *11; accord Perkins

v. BP Expl. & Prod., Inc., No. 17-4476, 2022 WL 972276, at *2 (E.D. La. Mar. 31, 2022)

(Milazzo, J.).

“Courts use ‘a two-step process in examining the admissibility of causation

evidence in toxic tort cases. First, the district court must determine whether there is

general causation. Second, if it concludes that there is admissible general-causation

evidence, the district court must determine whether there is admissible specific-

causation evidence.’” Seaman v. Seacor Marine, LLC, 326 F. App’x 721, 722 (5th Cir.

2009) (quoting Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)

(emphases added in Seaman)). “General causation is whether a substance is capable

of causing a particular injury or condition in the general population, while specific

causation is whether a substance caused a particular individual’s injury.” Id.

(quoting Knight, 482 F.3d at 351).

With respect to general causation, “[s]cientific knowledge of the harmful level

of exposure to a chemical, plus knowledge that the plaintiff was exposed to such

quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort

case.” Id. (quoting Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)). “A

plaintiff in such a case cannot expect lay fact-finders to understand medical

causation; expert testimony is thus required to establish causation.” Id.

1. Cook’s General Causation Analysis

(a) Cook fails to verify Murphy’s illnesses:

BP first objects that Cook failed to perform a necessary threshold task in his

analysis: establishing or verifying Murphy’s diagnoses.28 BP references the American

Medical Association’s Guide to the Evaluation of Disease and Injury Causation (“AMA

Guide”), which Cook maintains in his office as a “ready reference.”29 According to the

AMA Guide:

The first step is to establish or verify the diagnosis (i.e., determine what

is wrong with the patient, or what does the patient have?). This step is

accomplished by careful review of the available medical records and/or

examination of the patient. […] Exposure becomes relevant only when

the presence of disease or illness is established.30

BP also emphasizes31 that Cook’s report notes the importance of a person’s diagnosis:

“There are multiple reasons why [Murphy] may be experiencing symptoms […] A

well-explained diagnosis may provide clues as to the etiology of his health

problems.”32 When questioned in his deposition, Cook agreed that a symptom, as

opposed to a “condition and/or disease,” are different things, and that “multiple

diseases might produce similar symptoms.”33

Cook’s report states that Murphy’s “clinical records available for review do not

clearly identify causes of his chronic symptoms.”34 Although Cook interviewed

Murphy, Cook did not conduct a physical examination or medical assessment.35 In

28 R. Doc. No. 27-1, at 8.

29 R. Doc. No. 50-1 (Cook deposition), at 64.

30 R. Doc. No. 27-1, at 8 (quoting Melhorn, M.D., et al., AMA Guide to the Evaluation

of Disease and Injury Causation, (2d ed.) (attached to defendants’ motion as R. Doc.

No. 27-5) at 578 (emphasis added)).

31 Id. at 9.

32 R. Doc. No. 27-3, at 33.

33 R. Doc. No. 50-1, at 67.

34 R. Doc. No. 27-3, at 33.

35 Id. at 4.

his deposition, Cook agreed that his ability to verify Murphy’s diagnoses was

“compromised” and not “well-established.”36 Further, Cook testified that he was

“unable to perform step 1 [of the AMA Guide] to [his] satisfaction,” and that he had

to rely on “the very limited information,” available.37 In response to BP’s argument,

Murphy concedes that “[f]or the most part, [his] symptoms of chronic frontal

headaches, eye irritation, blurred vision, cough and shortness of breath do not have

a clinical diagnosis in the medical records.”38

Expert testimony “must be reliable at each and every step or else it is

inadmissible.” Knight, 482 F.3d at 355. The Court’s review of the relevant section of

the AMA Guide—which BP included in the record—demonstrates that the AMA’s

framework is a published technique with explicit standards controlling its operation.

Burleson, 393 F.3d at 584 (discussing the nonexclusive factors for the reliability

inquiry). But Cook’s inability to perform step one of the AMA Guide’s framework “to

[his] satisfaction” is concerning because “[e]xposure becomes relevant only when the

presence of disease or illness is established.”39 Cook’s failure to establish Murphy’s

potential diseases reveals that Cook has not “reliably applied the principles and

methods to the facts of this case.” Fed. R. Evid. 702(d).

This deficiency is particularly concerning because “the fundamental question

underlying [Cook’s] testimony,” as well as the Court’s ruling on BP’s Daubert motion,

36 R. Doc. No. 50-1, at 66.

37 Id. at 67.

38 R. Doc. No. 38, at 7.

39 27-5, at 3 (emphasis added).

is “whether the chemicals that [Murphy was] exposed to and the type of exposures

[Murphy] experienced cause [Murphy’s illnesses].” Knight, 482 F.3d at 352. Without

verifying Murphy’s diagnoses, Cook has not sufficiently explained how any particular

study can provide “a reliable basis for the opinion that the types of chemicals [Murphy

was] exposed to could cause [his] particular injury in the general population.” Id. at

353. This lack of verification weighs against admitting Cook’s opinions.

(b) Cook does not follow a sequential process for his analysis:

With respect to general causation, the Fifth Circuit has explained that “the

most useful and conclusive type of evidence […] is epidemiological studies.” Allen, 102

F.3d at 197. “When, as here, a review of epidemiological studies forms the basis of

an expert opinion, the essential first step requires the expert to identify an

association noted in the literature between exposure to the toxic agent and a

particular disease or adverse effect.” In re Deepwater Horizon BELO Cases, No. 19-

963, 2020 WL 6689212, at *10 (N.D. Fla.) (Rodgers, J.) (citing the Federal Judicial

Center’s Reference Manual on Scientific Evidence, at 566 (3d ed. 2011) (hereinafter,

Federal Reference Manual)).40

“The second step requires a determination by the expert of whether the

identified association ‘reflects a true cause-effect relationship’ between exposure to

40 Judge Rodgers’ opinion addressed a group of BELO plaintiffs who were selected for

a bellwether process that began with resolving the issue of general causation. 2020

WL 6689212, at *1. Judge Rodgers concluded that the expert’s opinion in that case

fell “woefully short,” of the Daubert standard, id. at *12, and the Eleventh Circuit

affirmed, describing Judge Rodgers’ analysis as “well-reasoned.” In re Deepwater

Horizon BELO Cases, No. 20-14544, 2022 WL 104243 (11th Cir. 2022) (per curiam).

the substance at issue and the disease.” Id. (quoting Federal Reference Manual at

597). “To make this determination, scientists consider other criteria indicative of

causation, such as the widely recognized Bradford Hill factors.” Id. The Federal

Reference Manual emphasizes that “these guidelines [for evaluating causation] are

employed only after a study finds an association to determine whether the association

reflects a true causal relationship.” Federal Reference Manual, at 598-99 (emphasis

in original).

According to BP, “[t]hat is not how [Cook] went about his general causation

analysis.”41 BP argues that “Cook testified that he reviews epidemiology during his

Bradford Hill analysis rather than beforehand.”42 Indeed, BP’s concern is well-

founded because, at his deposition, Cook testified that “[he] did not specify a

sequential process.”43 Cook conceded that he did not document a positive association

in his report before proceeding to a causation analysis.44 Further, Cook stated that

he “did not follow a -- a cookbook or recipe,” and that he did not think that he

“described [his] method well enough for any peer to review it.”45

“[T]he party seeking to have the district court admit expert testimony must

demonstrate that the expert’s findings and conclusions are based on the scientific

method, and, therefore, are reliable.” Moore v. Ashland Chemical, Inc., 151 F.3d 269,

276 (5th Cir. 1998). “This requires some objective, independent validation of the

41 R. Doc. No. 27-1, at 11.

42 Id. (emphasis in original).

43 R. Doc. No. 50-1, at 22.

44 Id. at 22–23.

45 R. Doc. No. 27-6, at 8–9.

expert’s methodology.” Id. “The expert’s assurances that he has utilized generally

accepted scientific methodology is insufficient.” Id.

Cook’s failure to follow a methodology that has “objective, independent

validation,” is concerning to the Court. Id. Murphy attempts to justify Cook’s

methodology by arguing that “the existence of epidemiology that supports an

association is what is important, not the order that the analysis is done.”46 But even

Cook’s report notes that “[d]rawing causal inferences after finding an association and

considering [the Bradford Hill] factors requires judgment and analysis to determine

if a cause-and-effect relationship exists or not.”47 Cook’s deposition testimony reveals

that Cook did not identify the required association in the epistemological literature

before proceeding to the Bradford Hill analysis. In light of that testimony, Murphy

has failed to demonstrate that Cook’s methodology is “generally accepted in the

relevant scientific community.” Burleson, 393 F.3d at 584. This deficiency weighs

against admitting Cook’s opinions.

(c) Cook fails to establish the relevancy of studies that he consulted:

Next, BP protests that Cook’s report relies on studies unrelated to the

Deepwater Horizon spill and that Cook fails to explain why those other studies are

relevant here.48 Specifically, BP notes that Cook’s report “cites studies from the 2003

Tasman Spirit tanker spill in Pakistan, from the 1996 Sea Empress tanker spill in

46 R. Doc. No. 38, at 9.

47 R. Doc. No. 27-3, at 15 (emphasis added).

48 R. Doc. No. 27-1, at 12.

the United Kingdom, and from the 2002 Prestige tanker spill off the coast of Spain.”49

BP maintains that in referencing these other incidents, Cook does not “explain how

the products spilled in those places compared to the weathered oil from the

Deepwater Horizon spill, or how the workers’ exposures were similar or different.”50

“[N]othing in either Daubert or the Federal Rules of Evidence requires a

district court to admit opinion evidence that is connected to existing data only by the

ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). “A

court may conclude that there is simply too great an analytical gap between the data

and the opinion proffered.” Id.

With respect to Judge Rodgers’ exclusion of medical causation evidence offered

by Dr. Patricia Williams, the Eleventh Circuit noted with approval Judge Rodgers’

“well-reasoned” observations that Williams referenced studies of oil spills that

“occurred close to shore and involved fresh crude oil, whereas the Deepwater Horizon

spill occurred approximately 125 miles offshore of Florida, and exposed cleanup

workers on Florida beaches to weathered oil.” 2022 WL 104243, at *2. Essentially,

there was “no evidence” that the conditions present in the cases before Judge Rodgers

“were somehow comparable to the conditions present in the[ ] studies [cited by Dr.

Williams].” Id. at *3.

Cook’s report suffers from this very same flaw. Cook mentions the reported

findings concerning the Tasman Spirit, the Sea Empress, and the Prestige oil spills.51

49 Id. at 12–13.

50 Id. at 13.

51 R. Doc. No. 27-3, at 25, 26, 39.

But Cook fails to adequately explain any similarity between those studies and the

Deepwater Horizon spill,52 even though Cook acknowledges that “weathered crude

oil differs from the specific chemicals of fresh crude oil.”53 In short, Cook’s opinions

are connected to these studies merely by his ipse dixit, and “there is simply too great

an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at

146.54

(d) Cook fails to identify a harmful dose:

BP also contends that Cook’s general causation opinions should be excluded

because they fail to identify a harmful dose of exposure to any chemical.55 The Court

agrees.

As previously stated, a causation expert must identify “the harmful level of a

52 Id.

53 Id. at 20.

54 In his opposition memorandum, Murphy stresses that Cook also relied “on the

results [sic] peer reviewed scientific studies coming from the GuLF STUDY[.]” See

R. Doc. No. 38, at 10. Cook’s generalized summary of the GuLF Study is unreliable

because Cook merely restates the study’s hypothesis without any evaluation of the

study’s findings. R. Doc. No. 27-3, at 17 (“The researchers set out with the hypothesis

that exposure to constituents of oil, dispersants, and oil-dispersant mixtures, as well

as to spill-related stress by workers engaged in clean-up of the Deepwater Horizon

oil spill, are associated with adverse health effects, particularly those associated with

respiratory, neurological, hematologic, and psychological or mental health.”

(emphasis added)). Cook appears to conclude that the GuLF Study and another study

by Alexander “consistently demonstrate a cause-and-effect relationship between

exposure to these oil products and subsequent adverse health effects.” Id. But Cook

does not specify the particular “adverse health effects” that the studies found.

Similarly, Cook includes this discussion in the portion of his report dedicated to

“strength of the association.” But Cook performs no actual analysis regarding the

strength of the association, such as with a statistical confidence interval—one of the

tools that Cook mentions to measure such strength. On balance, Cook’s conclusion

lacks supporting reasoning.

55 R. Doc. No. 27-1, at 14.

exposure to a chemical.” Allen, 102 F.3d at 198-199. The Fifth Circuit states that

this detail is one of the “minimal facts necessary to sustain the plaintiff’s burden in a

toxic tort case.” Id. at 199. See also McGill v. BP Expl. & Prod., Inc., 830 F. App’x

430, 433 (5th Cir. 2020) (affirming the exclusion of an expert’s opinions when “[n]one

[of the studies on which the expert relied] provide conclusive findings on what

exposure level of Corexit is hazardous to humans.”).

BP has repeatedly emphasized Cook’s failure to specify a harmful dose of any

chemical to which Murphy was allegedly exposed.56 Murphy asserts that BP’s

argument is “wrong,” and points to a portion of a report, authored by Jones, upon

which Cook relied.57 However, the referenced portion of Jones’ report in no way

establishes a harmful level of a chemical. Specifically, Jones’ report lists that Murphy

was exposed to volatile organic compounds, polycyclic aromatic hydrocarbons,

particulate matter, crude oil, oily water, sand, and dispersants.58 While Jones’ report

does provide statistical approximations of the amounts of these various substances to

which Murphy was exposed, Jones in no way quantifies the level at which these

substances are unsafe or harmful to humans.59

56 R. Doc. No. 27, at 1 (“Cook’s general causation opinions fail to identify the harmful

level of exposure to weathered oil needed to cause the plaintiff’s alleged conditions.”);

R. Doc. No. 27-1, at 14–15; R. Doc. No. 43, at 2 (“Murphy’s opposition never addresses

[Cook’s] failure to identify a harmful level of toxic exposure capable of causing

Murphy’s injuries. […] Cook does not mention a causal dose of a toxicant anywhere

in his report.”).

57 R. Doc. No. 38, at 4.

58 R. Doc. No. 38-1, at 23–24.

59 Id. “Yet, Dr. Prellop makes no connection between Ferox and bladder cancer

specifically. And, she provides no clue regarding what would be a harmful level of

In that section of his report related to the third Bradford Hill factor, “dose

response relationship,” Cook notes that “[t]here is a toxicology maxim that the dose

determines the poison.”60 Even though Cook cites to a study of “BP Gulf Oil Spill

Disaster response workers,” and Cook mentions the risk of exposure to fine

particulate matter and volatile compounds, he provides no analysis or discussion of

the level of these chemicals that would “determine[ ] the poison,” even though this

section of his report is dedicated to the issue of a dose response relationship.61 Cook’s

deposition testimony likewise confirms that he was unable “to identify the dose of

these toxic chemicals that were necessary to cause any of the health effects,”

discussed in Cook’s report.62 This failure weighs heavily in favor of exclusion.

(e) Murphy presents other evidence outside Cook’s report:

Murphy attempts to buttress Cook’s opinions by referencing several other

items of evidence, including materials that Murphy acquired after Cook produced his

report, such as a “general causation report” authored by Jones,63 and Exhibits 3 and

Ferox exposure.” Seaman, 326 F. App’x at 722 (citations omitted) (emphasis in

original).

60 R. Doc. No. 27-3, at 17.

61 Cf. id. at 9 (noting that “aromatic compounds have known toxicity” yet failing to

state the known level of toxicity).

62 R. Doc. No. 50-1, at 45–46.

63 R. Doc. No. 38, at 10. Although Murphy characterizes this document as a “general

causation report,” it is instead a report detailing occupational exposures among

workers that participated in the Deepwater Horizon oil spill clean-up activities. See

R. Doc. No. 38-3, at 1. Specifically, in the pages that Murphy references, the report

details the nature and extent of workers’ exposures to certain types of chemicals in

prior oil spill incidents. Id. at 17–24. While Jones—who has a PhD degree, but is not

a medical doctor—summarizes the findings of a number of studies, she does not

provide a general causation opinion. Id.

4 to Murphy’s sur-reply memorandum.64 But as Murphy concedes in his sur-reply

memorandum, Cook does not rely on these documents to support his causal opinion,

and Murphy states that he does not seek to amend or supplement his expert reports.65

The Court cannot review these items of evidence and form its own expert opinion that

was not offered by a party. Seaman, 326 F. App’x at 722 (“A plaintiff in such a case

cannot expect lay fact-finders to understand medical causation; expert testimony is

thus required to establish causation.”).

Overall, an “expert must ‘employ[ ] in the courtroom the same level of

intellectual rigor that characterizes the practice of an expert in the relevant field.’”

Wells v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010) (quoting Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Such rigor is not evident on this

record. After reviewing Cook’s expert report, his deposition testimony, and the

authorities provided by the parties, the Court determines, based on the various

shortcomings identified above, that Murphy has failed to meet his burden to prove by

a preponderance of the evidence that Cook’s report is reliable with respect to his

general causation analysis. On the contrary, Cook’s opinions are not the product of

reliable principles and methods, and Cook has not reliably applied his principles and

64 R. Doc. Nos. 46-3 & 46-4. Exhibit 3 is a document consisting of 25 pages, and

Murphy maintains that it “shows BP’s knowledge of the analytes found in crude oil

and the associated health effects, as the Court will see when it reviews Exhibit 3.”

See R. Doc. No. 46, at 4. But Murphy does not specify the “health effects,” he claims

are associated with the analytes found in crude oil, and he does not direct the Court’s

attention to any specific page of the exhibit. United States v. Del Carpio Frescas, 932

F.3d 324, 331 (5th Cir. 2019) (“Judges are not like pigs, hunting for truffles buried in

the record.”) (quotation marks and citation omitted).

65 R. Doc. No. 46, at 3.

methods to the facts of this case. Fed. R. Evid. 702(c), (d).66

B. BP’ Motion for Summary Judgment

Having determined that Cook’s opinions should be excluded, the Court now

turns to BP’s motion for summary judgment. After reviewing the parties’ arguments,

the Court concludes that summary judgment must be granted.

BP specifies that “Murphy’s only expert offering an opinion regarding medical

causation is [Cook.]”67 Further, BP argues that without Cook’s opinions, all of

Murphy’s claims will lack necessary expert support to meet his burden of proof with

respect to causation.68

Murphy does not dispute that Cook is his only expert for medical causation.69

Murphy’s opposition to BP’s motion for summary judgment rests entirely on his

opposition to BP’s motion in limine.70 Murphy advances no other arguments in

66 Because Murphy has not demonstrated that Cook’s opinions are admissible, the

Court need not reach the issue of specific causation. “Evidence concerning specific

causation in toxic tort cases is admissible only as a follow-up to admissible general-

causation evidence. […] if [the court] concludes that there is admissible general-

causation evidence, the district court must determine whether there is admissible

specific-causation evidence.” Johnson v. Arkema, Inc., 685 F.3d 452, 468 (5th Cir.

2012) (quoting Knight, 482 F.3d at 351).

67 R. Doc. No. 28-3, at 1.

68 R. Doc. No. 28-1, at 4–6.

69 R. Doc. No. 37-1, at 1; see also E.D. La. Local Civil Rule 56.2 (“All material facts in

the moving party’s statement will be deemed admitted, for purposes of the motion,

unless controverted in the opponent’s statement.”).

70 R. Doc. No. 37, at 1 (“Defendants’ motion [for summary judgment] is premised on

the Court granting [the] motion to exclude [Murphy’s] causation expert, [Cook].

[Murphy has] opposed that motion [in limine] and if [Murphy] prevails, this motion

for summary judgment must fail in that regard.”).

opposition to summary judgment, nor does he point to any other evidence in the

record to oppose summary judgment.”!

Because Murphy lacks expert testimony with respect to the issue of general

causation, Murphy has failed to present a genuine issue of material fact with respect

to his claims that his injuries were caused by exposure to oil and dispersants. BP is

therefore entitled to summary judgment. McGill, 2020 WL 6038677, at *3 (affirming

summary judgment against a Deepwater Horizon plaintiff in a BELO case after

plaintiff's medical causation expert was excluded for failing to satisfy Fed. R. Civ. P.

702 and Daubert); Johnson v. BP Exploration & Prod., Inc., No. 19-10090, 2020 WL

6742799, at *2 (E.D. La. Nov. 17, 2020) (Barbier, J.) (granting summary judgment

against a plaintiffin a BELO civil action where the plaintiff lacked an expert opinion).

IV. CONCLUSION

For all the foregoing reasons,

IT IS ORDERED that BP’s motion in limine to exclude the causation

testimony of Dr. Jerald Cook is GRANTED.

IT IS FURTHER ORDERED that BP’s motion for summary judgment is

GRANTED. Murphy’s claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, May 9, 2022.

UNITED STATES DISTRICT JUDGE

71 Id.

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