Heathington v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

THOMAS HEATHINGTON CIVIL ACTION

VERSUS NO: 17-4353

BP EXPLORATION & SECTION: “J”(2)

PRODUCTION INC, ET AL.

ORDER & REASONS

Before the Court are two motions filed by Defendants, BP Exploration &

Production Inc., BP America Production Company, and BP p.l.c. (collectively “BP”):1

a Daubert Motion to Exclude the General Causation Opinions of Plaintiff’s Expert, Dr.

Jerald Cook (Rec. Doc. 63) and a Motion for Summary Judgment (Rec. Doc. 64).

Plaintiff, Thomas Heathington, opposes both (Rec. Docs. 72 & 71, respectively), and

BP filed replies to each (Rec. Docs. 76 & 77, respectively). Additionally, Plaintiff has

filed a Motion for Extension of Deadlines (Rec. Doc. 69) which Defendants oppose

(Rec. Doc. 78), and Plaintiff has filed a reply (Rec. Doc. 81). Having considered the

motions and legal memoranda, the record, and the applicable law, the Court finds

that Defendants’ motions should be granted, and Plaintiff’s motion should be denied.

1 Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and

Transocean Offshore Deepwater Drilling, Inc. join in the Daubert Motion and Motion for Summary

Judgment.

FACTS AND PROCEDURAL BACKGROUND

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

(“DWH”) oil spill in the Gulf of Mexico. 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). These cases were originally part of a multidistrict litigation

(“MDL”) pending in this Court. During the course of the MDL proceedings, this Court

approved the Deepwater Horizon Medical Benefits Class Action Settlement

Agreement. Id. at *2. The B3 plaintiffs either opted out of the class action settlement

agreement or were excluded from its class definition. Id. at *10 n.3.

Plaintiff, Thomas Heathington, was employed in the DWH oil spill response as

a beach cleanup worker, picking up oil and oil-covered debris from sand and coastal

areas on the beaches of Pascagoula and Petit Bois, Mississippi for approximately nine

months. (Rec. Doc. 63-1, at 2). This work, Heathington alleges, exposed him to crude

oil and chemical dispersants which caused Plaintiff to develop a multitude of adverse

medical conditions, including rash, skin irritation, bronchitis, cough, shortness of

breath, sinus problems, sore throat, and headaches. (Id.).

In the case management order for the B3 bundle of cases, this Court noted that,

to prevail, “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.” 2021 WL

6053613, at *11. The Court further observed that the issue of causation “will likely

be the make-or-break issue of many B3 cases,” which “will require an individualized

inquiry.” Id. Here, Heathington relies on Dr. Jerald Cook to provide expert testimony

as to general causation. (Rec. Doc. 63-3). Dr. Cook is a retired Navy physician with a

master’s degree in environmental toxicology and a fellow of the American College of

Occupational and Environmental Medicine. (Id. at 5). He is board certified in

occupational medicine, public health, and general preventative medicine. (Id.). Dr.

Cook’s report is an omnibus, non-case specific, general causation expert report that

has been used by many B3 plaintiffs. (Rec. Doc. 63-1, at 3). It mentions no plaintiff

by name, including Heathington, and it does not address any specific plaintiff’s work

on the spill response or the nature, duration, or type of exposure any plaintiff had to

any particular toxin. See generally (Rec. Doc. 63-3). Further, in the report, Dr. Cook

evaluates four categories of injuries or disease to see whether they could be caused

by exposure to crude oil or dispersants. (Id.). Dr. Cook concluded that three of the

categories of injury – respiratory, dermal, and ocular – can result from exposure to

such. (Id.).

Now, BP has filed the instant Daubert Motion to Exclude the General

Causation Opinions of Dr. Cook and Motion for Summary Judgment premised on the

Court’s granting of BP’s Motion to Exclude. In response, Plaintiff has filed a Motion

for Extension of Deadlines asking the Court to continue all scheduling deadlines and

to refrain from ruling on dispositive motions pending the completion of general

causation discovery. The Court will address each motion in turn.

DAUBERT MOTION

I. LEGAL STANDARD

Federal Rule of Evidence 702 provides that a witness who is qualified as an

expert may testify if: (1) the expert’s “specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact in issue”; (2) the expert’s testimony

“is based on sufficient facts or data”; (3) the expert’s testimony “is the product of

reliable principles and methods”; and (4) the principles and methods employed by the

expert have been reliably applied to the facts of the case. Fed. R. Evid. 702. The

United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), provides the analytical framework for determining whether

expert testimony is admissible under Rule 702. Both scientific and nonscientific

expert testimony are subject to the Daubert framework, which requires trial courts

to make a preliminary assessment of “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 also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). When expert

testimony is challenged under Daubert, the party offering the expert’s testimony

bears the burden of proving its reliability and relevance by a preponderance of the

evidence. Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).

The reliability of expert testimony “is determined by assessing whether the

reasoning or methodology underlying the testimony is scientifically valid.” Knight v.

Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). A number of nonexclusive

factors may be relevant to the reliability analysis, including: (1) whether the

technique at issue has been tested; (2) whether the technique has been subjected to

peer review and publication; (3) the 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 also 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.”).

II. DISCUSSION

To begin, BP points out that four other Sections of this Court, and this Court

itself, have excluded Dr. Cook’s expert report in similar B3 cases. 2 (Rec. Doc. 63-1,

at 7); (Rec. Doc. 76, at 1–2). BP argues that in this case, the Court should exclude Dr.

Cook’s opinions for the same reasons. (Id.). Judge Africk identified four primary bases

for which Dr. Cook’s general causation opinions were unreliable, and Judge Ashe

found that just one of these four reasons was substantial on its own to permit

exclusion, Dr. Cook’s failure to identify a harmful dose of exposure necessary to cause

the plaintiff’s specific medical condition.3 Specifically, Judge Ashe found that Dr.

2 Dr. Cook’s latest report, used in Judge Ashe’s cases and the ones presented to this Court, is allegedly

“substantially improved,” but BP contests this argument and finds the report is still unreliable and

inadmissible for the same reasons found in Judge Africk’s Order & Reasons.

3 See Novelozo v. BP Expl. & Prod., No. 13-1033, 2022 WL 1460103 (E.D. La. May 9, 2022) (Africk, J.);

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

Johns v. BP Expl. & Prod. Inc., No. 17-3304, 2022 WL 1811088 (E.D. La. June 2, 2022) (Ashe, J.);

Cook had failed to identify a “particular chemical” or the “level of exposure to any

such chemical as would be necessary to cause the specific symptoms . . . that is to say,

the dose necessary to cause the reported reaction.” Johns, 2022 WL 1811088, at *5.

Here, the Court begins with the issue both Judge Africk and Ashe determined merited

exclusion of Dr. Cook’s expert testimony: whether his report identifies a particular

chemical or the level of exposure to any such chemical as would be necessary to cause

Heathington’s specific adverse health conditions.

“’Scientific 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.” Allen v. Pa. Eng’g

Corp., 102 F.3d 194, 199 (5th Cir. 1996) (citing Wright v. Willamette Industries, Inc.,

91 F.3d 1105, 1107 (8th Cir. 1996)) (emphasis added). In a subsequent toxic tort case,

the Fifth Circuit, applying the above standard, held that an expert’s testimony “[d]id

not establish general causation” because the expert “provide[d] no clue regarding

what would be a harmful level of [chemical] exposure.” Seaman v. Seacor Marine, 326

F. App'x 721, 726 (5th Cir. 2009). Therefore, B3 Plaintiffs in these toxic tort cases

“must prove, at a minimum, that exposure to a certain level of a certain substance for

a certain period of time can cause a particular condition in the general population.”

Williams v. BP Expl. & Prod., No. 18-9753, 2019 WL 6615504, at *8 (E.D. La. Dec. 5,

2019) (citing Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007)).

Johnson v. BP Expl. & Prod. Inc., No. 17-3308, 2022 WL 1811090 (E.D. La. June 2, 2022) (Ashe, J.);

Macon v. BP Expl. & Prod. Inc., No. 17-3548, 2022 WL 1811135 (E.D. La. June 2, 2022) (Ashe, J.);

Murray v. BP Expl. & Prod. Inc., No. 17-3582, 2022 WL 1811138 (E.D. La. June 2, 2022) (Ashe, J.);

Street v. BP Expl. & Prod. Inc., No. 17-3619, 2022 WL 1811144 (E.D. La. June 2, 2022) (Ashe, J.).

Further, in a BELO case,4 the Fifth Circuit upheld the exclusion of a plaintiff’s

expert because he “was unable to answer questions regarding how much time [the

plaintiff] spent scooping up oil, how, where, or in what quantity Corexit was used,

how exposure levels would change once substances were diluted in seawater, or how

[the plaintiff’s] protective equipment would affect exposure.” McGill v. BP Expl. &

Prod., Inc., 830 F. App’x 430, 433 (5th Cir. 2020). However, the court went on to

reason that the general causation expert need not determine the precise level of

exposure, but he must, at least, analyze the plaintiff’s probable exposure level. Id.

(citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999), and Clark v.

Kellogg Brown & Root, L.L.C., 414 F. App'x 623 (5th Cir. 2011) in which the experts

engaged in analysis of the plaintiff’s workspace to determine a probable exposure

level). Accordingly, here, to be reliable and, thus admissible, Dr. Cook’s report must,

at a minimum, analyze Heathington’s probable level of exposure.

BP argues that Dr. Cook’s failure to identify the harmful level of exposure for

any chemical or any medical condition is the most fundamental deficiency. (Rec. Doc.

63-1, at 17). Because the law requires an expert to identify the harmful level of

exposure for each chemical and each condition, BP contends that this failure is

especially problematic because Dr. Cook is investigating multiple allegedly toxic

chemicals, and Heathington is alleging multiple adverse health conditions. (Id. at 10).

4 “[B]oth BELO plaintiffs and 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 . . . [n]otably, experience has

shown that causation is a critical element—if not the critical element—in BELO cases, and therefore

will likely be the make-or-break issue for many B3 cases as well. Additionally, the issue of causation

in these toxic tort cases will require an individualized inquiry.” 2021 WL 6053613, at *11.

Judge Ashe, in his recent opinions, emphasized that Dr. Cook’s report failed to

include even a single mention of a specific chemical. See, e.g., Johns, 2022 WL

1811088, at *5. Instead, Judge Ashe found that Dr. Cook’s report “refers generally to

oil, dispersants, and volatile organic compounds,” and he “never identifies any

particular chemical to which [the plaintiff] was exposed, much less the level of

exposure to any such chemical as would be necessary to cause the specific symptoms

of which [the plaintiff] complains – that is to say, the dose necessary to cause the

reported reaction.” Id. Because Plaintiff used the same report by Dr. Cook here, Dr.

Cook’s report fails to identify a single specific chemical.

Heathington admits that “Judge Ashe’s conclusion is factually correct in that

Dr. Cook did not rely on quantitative exposure data in reaching his general causation

opinions.” (Rec. Doc. 72, at 2). In an attempt to articulate better than past plaintiffs

why Dr. Cook does not identify quantitative exposure data in his report, Heathington

contends that Dr. Cook and the scientific community use measurement/ effect criteria

like the “exposure-response,” “ever/never exposed,” and “job exposure matrix” because

BP avoided or prevented the recording of exposure and dose data. (Id. at 11).

Heathington argues that Dr. Cook’s failure to identify a particular chemical or the

level of exposure to any such chemical as would be necessary to cause the specific

symptoms is not a bar to finding that his methodology is proper and reliable under

Daubert. (Id. at 14). However, while this argument may work in response to BP’s

contention that Dr. Cook did not follow the proper methodology, it does not prevail in

response to BP’s assertion that Dr. Cook does not identify the harmful level of

exposure for any chemical or any medical condition. As the Fifth Circuit has held,

identification of the harmful level of exposure to a chemical is one of the “minimal

facts necessary to sustain the plaintiff’s burden in a toxic tort case.” Allen, 102 F.3d

at 199.

Heathington argues that the reason neither he nor any other plaintiff can

present this specific quantitative data is due to BP’s failure to act during the spill to

preserve evidence of the workers’ actual total exposure to specific chemicals in the

weathered oil. (Rec. Doc. 72-17, at 1). In reply, BP asserts that Heathington’s

argument misses the mark because the general causation analysis “permits the

expert to consult the universe of epidemiological and toxicological literature that has

studied the constituents at issue,” and “[i]t does not depend upon environmental

sampling data taken as part of the incident.” (Rec. Doc. 76, at 4). “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.” Knight, 482 F.3d at 35. Therefore, the fundamental

question in this general causation inquiry is whether the chemicals, weathered oil,

and dispersants to which Heathington alleges he was exposed can cause the

conditions he alleges. Notably, this inquiry does not depend upon environmental

sampling data taken as part of the incident. As Judge Vance stated, “Dr. Cook was

not prevented from consulting the relevant scientific and medical literature on the

harmful effects of oil to determine whether a relevant chemical has the capacity to

cause the harm alleged by plaintiff in the general population. He was not limited to

data from the Deepwater Horizon oil spill, and in fact did rely on studies from

previous oil spills.” Dawkins v. BP Expl. & Prod., Inc., No. CV 17-3533, 2022 WL

2315846, at *10 (E.D. La. June 28, 2022).

Here, Dr. Cook’s report fails to identify a single chemical and, instead, refers

generally to oil, dispersants, and volatile organic compounds. Moreover, even if Dr.

Cook’s report were to identify a specific chemical present in the crude oil, weathered

crude oil, or dispersants, his report fails to establish a harmful level of any chemical

to the general population. Thus, Dr. Cook’s report fails to satisfy Fifth Circuit’s

minimal fact required: scientific knowledge of the harmful level of exposure to a

chemical. As Dr. Cook even points out himself, “[t]here is a toxicology maxim that the

dose determines the poison.” (Rec. Doc. 63-3, at 27). Yet, Dr. Cook fails to identify the

dose of any such chemical that would result in the adverse health effects contained

in his report, and his report is therefore unreliable and inadmissible.

MOTION FOR SUMMARY JUDGMENT

I. LEGAL STANDARD

Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a

dispute as to any material fact exists, a court considers “all of the evidence in the

record but refrains from making credibility determinations or weighing the evidence.”

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th

Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but

a party cannot defeat summary judgment with conclusory allegations or

unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be

satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”

Delta, 530 F.3d at 399.

If the dispositive issue is one on which the nonmoving party will bear the

burden of proof at trial, the moving party may satisfy its burden by merely pointing

out that the evidence in the record is insufficient with respect to an essential element

of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then shifts

to the nonmoving party, who must, by submitting or referring to evidence, set out

specific facts showing that a genuine issue exists. See id. at 324. The nonmovant may

not rest upon the pleadings but must identify specific facts that establish a genuine

issue for trial. See id. at 325; Little, 37 F.3d at 1075.

II. DISCUSSION

As in the cases decided by this Court and Judges Africk, Ashe, Vance, and

Morgan, because Dr. Cook’s general causation opinions are excluded, Defendants are

entitled to summary judgment dismissing Heathington’s claims. Heathington has no

other medical expert for general causation, and expert testimony is required.

Therefore, Heathington has failed to create a genuine issue of material fact with

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

MOTION FOR EXTENSION OF DEADLINES

Here, even if this Court were to grant Plaintiff his requested relief, it would be

fruitless, as other sections of this Court have already found. See Harrison v. BP Expl.

& Prod., 2022 WL 2438502, at *7 (E.D. La. June 30, 2022) (Morgan, J.) (“[A]ssuming

arguendo Plaintiff’s allegation that Defendants prevented studies of oil cleanup

workers by not collecting data related to the Deepwater Horizon oil spill is true, Cook

could have attempted to support an opinion as to the dose necessary to cause

Plaintiff’s symptoms by relying on the universe of relevant epidemiology and

toxicology literature studying the spill or by relying on the work of Dr. Heathington.

He did neither.”); Peairs v. BP Expl. & Prod. Inc., No. 17-03596, R. Doc. 65 at p. 2

(E.D. La. July 19, 2022) (Vance, J.) (“the issues involved in the sanctions motion are

not outcome determinative of defendants’ motion in limine on the issue of

admissibility of Dr. Cook’s report, or on the merits of defendants’ summary judgment

motion.”). Moreover, as Judge Vance reasoned, “even if the Court were to consider the

‘ever/never’ exposure model data, that would not cure the lack of ‘fit’ between Dr.

Cook’s general causation report and the facts of plaintiff’s case.” Peairs, No. 17-03596,

R. Doc. 65 at p. 4.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion to Exclude the

Causation Opinion of Plaintiff’s Expert, Dr. Jerald Cook (Rec. Doc. 63) is

GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary

Judgment (Rec. Doc. 64) is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs Motion for Extension of

Deadlines (Rec. Doc. 69) is DENIED.

IT IS FURTHER ORDERED that all claims of Plaintiff, Thomas

Heathington, against Defendants, BP Exploration & Production Inc.; BP America

Production Company; BP p.l.c; Halliburton Energy Services, Inc.; Transocean

Deepwater, Inc.; Transocean Holdings, LLC; and Transocean Offshore Deepwater

Drilling, Inc., are DISMISSED with prejudice.

New Orleans, Louisiana, this 28th day of July, 2022.

ly KT /

CARL J. shyt ERY

UNITED STAVES DISTRICT JUDGE

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