Turner v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GREGORY SCOTT TURNER CIVIL ACTION

VERSUS No. 17-3225

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; BP p.l.c.;

Halliburton Energy Services, Inc.; Transocean Deepwater, Inc; Transocean Holdings,

LLC; Transocean Offshore Deepwater Drilling, Inc.; Transocean, Ltd.; and Triton

Asset Leasing GmbH (collectively, “defendants”). 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, Gregory Scott Turner

(“Turner”), will lack necessary expert testimony. Turner opposes3 both motions. For

the following reasons, the Court grants the motion in limine and the motion for

summary judgment.

1 R. Doc. No. 43.

2 R. Doc. No. 44.

3 R. Doc. No. 45 (opposition to motion for summary judgment); R. Doc. No. 46

(opposition to motion in limine).

I. BACKGROUND

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

spill in the Gulf of Mexico.4 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).” 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.). In 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 the defendants 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. To prevail on their claims, the

“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.”5

Turner alleges that from June through November 2010 he was exposed to both

oil and dispersants6 as a resident of Mississippi and as a clean-up worker in multiple

locations along the coast of Alabama and Mississippi following the Deepwater

Horizon oil spill.7 According to Turner, as a result of this exposure, he suffers from,

among other things, respiratory problems, vision problems, myalgia, fatigue,

4 R. Doc. No. 6 (“Severing 780 Cases in the B3 Pleading Bundle and Re-allotting Them

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

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

6 R. Doc. No. 44-2, at 5

7 Id. at 4–5.

dizziness, and headaches.8 Turner filed the instant civil action, seeking a jury trial

with respect to his claims, which include negligence under general maritime law;

gross negligence under general maritime law; negligence per se under general

maritime law, state and federal law; claims under Louisiana nuisance law;

negligence, gross negligence and/or failure to warn under state law; breach of

contract; and battery.9

To support his claim that exposure to oil and dispersants caused his health

problems, Turner provides a medical causation analysis completed by Cook.10 Cook

is a retired Navy physician, a fellow of the American College of Occupational and

Environmental Medicine, and is board certified in occupational medicine, public

health, and general preventative medicine.11

Cook’s report utilized a “general causation approach to determine if a reported

health complaint can be from the result of exposures sustained in performing cleanup

work” and to assess “the likelihood that occupational exposures that occurred during

work in oil spill cleanup caused disease, contributed to the development of disease,

affected the severity of disease, or exacerbated pre-existing disease that workers have

associated with potential exposures.”12

8 Id. at 7; R. Doc. No. 1-2, at 3, 7.

9 R. Doc. No. 1, at 19–33.

10 R. Doc. No. 43-4.

11 Id. at 5.

12 Id. at 14.

Cook’s report is organized into five chapters. The first chapter outlines Cook’s

qualifications, which are not challenged.13 The second chapter provides background

on the Deepwater Horizon oil spill.

The third chapter describes Cook’s methodology. The first step, as described in

Cook’s report, is to “review and analyze the available scientific literature to determine

the strength of an association between environmental exposure and a health effect.”14

Cook states that, as part of this literature review, he selected the studies included in

his general causation analysis “based on the quality of the study and study design.”15

Finally, Cook applies the Bradford Hill factors, which environmental toxicologists

employ for causation analysis, to the selected studies to “to determine if a cause-and-

effect relationship exists or not.”16 The Bradford Hill factors include: (1) temporal

relationship; (2) strength of the association; (3) dose-response relationship; (4)

replication of findings; (5) biological plausibility; (6) consideration of alternative

explanations; (7) cessation of exposure; (8) specificity of the association; and (9)

consistency with other knowledge. Grant v. BP Expl. & Prod., Inc., No. 17-4334, 2022

WL 2467682, at *4 (E.D. La. July 6, 2022) (Vance, J.) (citing Fed. Judicial Ctr.,

Reference Manual on Scientific Evidence 600 (3d ed. 2011)). Cook explains that

“[d]rawing causal inferences after finding an association and considering these

13 R. Doc. No. 43-1, at 2.

14 R. Doc. No. 43-4, at 17.

15 Id. at 19.

16 Id. at 24. “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).

factors requires judgment and analysis to determine if a cause-and-effect relationship

exists or not.”17

The fourth chapter of Cook’s report recounts the history of oil spills and related

clean-up efforts and analyzes prior studies on the health effects associated with

exposure to oil.18 These studies include the National Institute for Occupational Safety

and Health’s (“NIOSH”) 2011 final health hazard evaluation (“HHE”) report on the

Deepwater Horizon oil spill, the Deepwater Horizon oil spill Coast Guard cohort

study, and the Gulf Long-Term Follow-Up study (“GuLF Study”). Cook, through a

close analysis of the above studies, concludes that there is a relationship between oil

exposure among clean-up workers and a number of dermal, ocular, neurological, and

respiratory conditions.19

17 R. Doc. No. 43-4, at 24.

18 Id. at 32.

19 “During the response and cleanup activities, workers complained of various acute

medical symptoms, including nasal congestion, cough, shortness of breath,

headaches, nausea, dizziness, dermal irritation or rash, itchy and sore eyes, as well

as heat-related conditions.” Id. at 36 (discussing the results of the NIOSH HHE

report); “Neurological symptoms were also noted to have a significant relationship in

oil-exposed responders, including headaches, lightheadedness, difficulty

concentrating, numbness/tingling sensation, blurred vision, and memory loss or

confusion (Krishnamurthy et al., 2019). The cohort was also determined to have

demonstrated a significant association between oil-exposed responders and

hypertension, as well as chest pain, mitral valve disorders, sudden heartbeat

changes, and palpitations . . . .” Id. at 44 (describing the “longitudinal data that shows

a significant relationship between oil-exposed responders and respiratory symptoms”

from the ongoing Coast Guard cohort study); Symptoms, such as coughing, wheezing,

burning in nose, throat, lungs, and eyes “had a positive association with both direct

work with dispersants and indirect work with dispersants . . . .” Id. at 59 (discussing

the results of the GuLF Study).

Finally, the fifth chapter contains Cook’s opinions on general causation for four

categories of medical conditions: (1) respiratory conditions; (2) dermal conditions; (3)

ocular conditions; and (4) cancers. Ultimately, Cook concludes that a “[g]eneral

causation analysis indicates that these acute and chronic [respiratory, dermal,

ocular] conditions can occur in individuals exposed to crude oil, including weathered

crude oil, during oil spill response and cleanup work.”20

II. STANDARDS OF LAW

A. Motion in Limine

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:

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

20 Id. at 87, 92, 99. With respect to cancers, Cook notes that “[m]ost of the studies that

have been done . . . show increased prevalence in acute symptoms . . . .” However, he

also notes that, because of the differing latency periods for various cancers, “[a]t this

time there are no epidemiology studies that show exposures to crude oil, weathered

crude oil, or dispersants cause cancer.” Id. at 99–102.

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.

If the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must then articulate specific facts showing a genuine issue and point to

supporting, competent evidence that may be presented in a form admissible at trial.

See Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R.

Civ. P. 56(c)(1)(A), (c)(2). These facts must create more than “some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. If the nonmovant fails

to meet their burden of showing a genuine issue for trial that could support a

judgment in favor of the nonmovant, summary judgment must be granted. See Little,

37 F.3d at 1075–76.

III. LAW & ANALYSIS

A. 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.).

When determining the admissibility of causation evidence in toxic tort cases,

“[c]ourts use ‘a two-step process . . . . 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.” Seaman, 326 F. App’x at 723 (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.

Defendants assert that Cook’s general causation opinion should be excluded

because it is unreliable. Specifically, defendants argue, among other things,21 that

Cook’s report failed to identify a harmful dose of exposure to any particular chemical.

The Cook report in the present case suffers from the one of the same flaws

which the Court identified in an earlier version of Cook’s report excluded in Murphy

v. BP Expl. & Prod. Inc., No. 13-1031, 2022 WL 1460093 (E.D. La. May 9, 2022), and

Novelozo v. BP Expl. & Prod. Inc., No. 13-1033, 2022 WL 1460103 (E.D. La. May 9,

2022), insofar as Cook fails to identify a particular chemical and corresponding dose

to which Turner was exposed.22

As this Court noted in Novelozo, “[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 [as to general

causation] in a toxic tort case.” 2022 WL 1460103, at *5 (quoting Seaman v. Seacor

Marine, LLC, 326 F. App’x 721, 722 (5th Cir. 2009)). Several sections of this Court

have subsequently concluded that Cook’s testimony must be excluded due to this

failure to include harmful level of exposure in his report. See, e.g., Harrison v. BP

21 R. Doc. No. 43-1, at 6–11. The defendants also contend that Cook’s report is

unreliable and, therefore, inadmissible because Cook failed to verify Turner’s

diagnoses and to follow accepted methodology for evaluating epidemiological studies.

Id. at 11–19. Because this Court finds that Cook’s report should be excluded for its

failure to identify a particular chemical and dose of exposure, it need not address

these alternative grounds for exclusion.

22 Cook’s deposition testimony lends further support to the defendants’ argument that

Cook is unable to provide an exposure level for a particular chemical that would cause

Turner’s ailments. When asked “If the legal test for general causation is that a review

of scientific and medical literature demonstrates that exposure to a harmful level of

a substance can cause a particular disease, have you given us that opinion,” Cook

responded, “I did not quantify that, no.” R. Doc. No. 43-5, at 146:16–22.

Expl. & Prod., No. 17-4346, 2022 WL 2390733, at *6 (E.D. La. July 1, 2022)

(Morgan, J.); McIntosh v. BP Expl. & Prod., No. 13-1020, 2022 WL 2342480, at *4

(E.D. La. June 29, 2022) (Barbier, J.); Coleman v. BP Expl. & Prod., No. 17-4158,

2022 WL 2314400, at *7 (E.D. La. June 28, 2022) (Vance, J.); Street v. BP Expl. &

Prod. Inc., No. 17-3619, 2022 WL 1811144, at *6 (E.D. La. June 2, 2022) (Ashe, J.).

Turner addresses this lack of dose-response data in Cook’s report by asserting

that the defendants’ failure to conduct dermal and biomonitoring of clean-up

workers—which, Turner submits “would have created a quantitative exposure and

dose database for these workers”23—is evidence that “BP consciously, or in the most

favorable light negligently, avoided recording data which would show the exposure

doses of spill workers.”24 Yet, as noted by other courts, the Deepwater Horizon oil spill

Unified Area Command, which was composed of several federal and state agencies,

“engaged in extensive and coordinated data collection and environmental monitoring

efforts, in what has been characterized as ‘the largest environmental investigation of

an oil spill ever undertaken.’” In re Deepwater Horizon Belo Cases, 2020 WL 6689212,

at *4 (N.D. Fla. Nov. 4, 2020), aff’d sub nom. In re Deepwater Horizon BELO Cases,

2022 WL 104243 (11th Cir. Jan. 11, 2022); accord Grant v. BP Expl. & Prod., Inc.,

No. 17-4334, 2022 WL 2467682, at *10 n.58 (E.D. La. July 6, 2022) (Vance, J.). The

availability of this data “cast[s] doubt on the assertion that there is a lack of

monitoring data associated with the spill.” Grant, 2022 WL 2467682, at *10 n.58; see

23 R. Doc. No. 46, at 6.

24 Id. at 11.

also Harrison, 2022 WL 2390733, at *7.

B. Motion for Summary Judgment

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

to defendants’ motion for summary judgment. The issue of general causation is a

necessary element of plaintiff’s claims against defendants. Cook is Turner’s sole

expert on general causation.25 With Cook’s opinion on general causation now

excluded, Turner lacks expert testimony with respect to general causation. As a

result, Turner 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.

Accordingly, defendants are entitled to summary judgment. See, e.g., Harrison, 2022

WL 2390733, at *7; McIntosh, 2022 WL 2342480, at *6; Coleman, 2022 WL 2314400,

at *12; Street, 2022 WL 1811144, at *7; Novelozo, 2022 WL 1460103, at *10.

25 Turner’s opposition to the defendants’ motion in limine also notes that Dr. Rachel

Jones “prepare[d] a general exposure assessment based on the available exposure

data and upon the published exposure assessment literature, most of which deals

specifically with exposure assessment of BP Oil Spill response workers.” Id. at 4.

However, Dr. Jones’ report does not offer an opinion on general causation.

Additionally, Dr. Jones is not a medical doctor and therefore is not qualified to opine

on Turner’s medical diagnoses. Accordingly, Dr. Jones’ report does not cure plaintiff’s

deficiency as to general causation evidence. See, e.g., Coleman, 2022 WL 2314400,

at *12.

IV. CONCLUSION

For the reasons stated herein,

IT IS ORDERED that the motion in limine to exclude the causation testimony

of Dr. Jerald Cook is GRANTED.

IT IS FURTHER ORDERED that the motion for summary judgment is

GRANTED. Turner’s claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, July 27, 2022.

Lille □

UNITED SFATES DISTRICT JUDGE

15