Milsap v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DENNIS MILSAP CIVIL ACTION

VERSUS No. 17-4451

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; and Transocean Offshore Deepwater Drilling, Inc. (collectively, “defendants”).

Defendants have also filed a motion2 for summary judgment, contending that if the

Court grants defendants’ motion in limine, then summary judgment will also be

warranted because plaintiff, Dennis Milsap (“Milsap”), will lack necessary expert

testimony.

Milsap opposes3 both motions, and has filed a motion4 to continue all

scheduling deadlines until his counsel has completed discovery on the issue of

causation and to continue indefinitely the submission date for defendants’ motion for

summary judgment and motion in limine. The defendants oppose Milsap’s motion to

1 R. Doc. No. 46 (motion); R. Doc. No. 62 (reply).

2 R. Doc. No. 47 (motion); R. Doc. No. 61 (reply).

3 R. Doc. No. 49 (opposition to motion for summary judgment); R. Doc. No. 50

(opposition to motion in limine).

4 R. Doc. No. 64.

continue.5 For the following reasons, the Court grants the defendants’ motion in

limine and motion for summary judgment and the Court denies Milsap’s motion to

continue.

I. BACKGROUND

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

spill in the Gulf of Mexico.6 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 *9 (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.”7

Milsap was employed in the Deepwater Horizon (“DWH”) oil spill response.

According to his filings, he worked as a member of the onshore clean-up crew.8 He

5 R. Doc. No. 65.

6 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.).

7 Id. at 53 (noting that “proving causation will be a key hurdle for the B3 plaintiffs.”).

8 R. Doc. No. 46-1.

claims to have worked for “10-12 hours per day for 5-7 days per week” from May 2010

to December 2011 on the beaches and islands of Mississippi.9 Plaintiff alleges that

exposure to crude oil and chemical dispersants caused him to develop a multitude of

adverse medical conditions, including pharyngitis, sore throat, bronchitis, nasal

congestion, chronic sinusitis, difficulty swallowing, hoarseness, nosebleeds, chronic

rhinitis, facial pain or sinus pain, nasal discharge, throat irritation, abdominal pain,

loss of appetite, chronic heartburn, abdominal cramps, diarrhea, nausea, vomiting,

weakness, thrombocytopenia, pleuritic chest pain, shortness of breath, blurred vision,

eye irritation and burning, rash, skin crusting, dryness/flaking, itching, peeling,

scaling, difficulty walking, headaches, dizziness, depression, and anxiety.10

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

problems, Milsap provides a medical causation analysis completed by Cook.11 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.12

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

health complaint can be 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,

9 Id. at 5.

10 R. Doc. No. 47-5.

11 R. Doc. No. 47-6.

12 Id. at 5.

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

associated with potential exposures.”13

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

qualifications, which are not challenged.14 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.”15

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.”16

Finally, Cook applies the Bradford Hill factors to the selected studies to “to determine

if a cause-and-effect relationship exists or not.”17 The Bradford Hill factors, which

environmental toxicologists employ for causation analysis, 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

13 Id. at 14.

14 R. Doc. No. 43-1, at 3.

15 R. Doc. No. 47-6, at 17.

16 Id. at 19.

17 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).

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

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

exists or not.”18

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.19 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, following 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.20

18 R. Doc. No. 47-6, at 24.

19 Id. at 32.

20 “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 . . . . 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

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.”21

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.

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).

21 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.

“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.

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. Defendants’ 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 to the extent that the opinion fails: (1) to identify a harmful

dose of exposure to any particular chemical22; (2) to verify Milsap’s diagnosis23; and

(3) to follow accepted methodology for evaluating scientific literature.24

This Court will begin by addressing the defendants’ first argument for finding

Cook’s opinion to be unreliable—namely, that the opinion does not identify a harmful

level of exposure to an identified chemical and therefore cannot prove general

causation. The Court agrees with this argument. The Cook report in the present case

suffers from 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 Milsap was exposed.

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

22 R. Doc. No. 46-1, at 7–11.

23 Id. at 11–12.

24 Id. at 12–16.

have subsequently concluded that “Cook’s failure to identify the level of exposure to

a relevant chemical that can cause the conditions asserted in plaintiff's complaint

renders his opinion unreliable, unhelpful, and incapable of establishing general

causation.” Grant v. BP Expl. & Prod. Inc., No. 17-4334, 2022 WL 2467682, at *7

(E.D. La. July 6, 2022) (Vance, J.); see also, Reed v. BP Expl. & Prod., Inc., No. 17-

3603, 2022 WL 3099925, at *3 (E.D. La. Aug. 4, 2022) (Milazzo, J.); Favorite v. BP

Expl. & Prod., Inc., No. 17-3192, 2022 WL 2789029, at *3 (E.D. La. July 15, 2022)

(Zainey, J.); Barkley v. BP Expl. & Prod. Inc., No. 13-995, 2022 WL 2342474, at *4

(E.D. La. June 29, 2022) (Barbier, J); Harrison v. BP Expl. & Prod., No. 17-4346, 2022

WL 2390733, at *6 (E.D. La. July 1, 2022) (Morgan, J.); Street v. BP Expl. & Prod.

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

Milsap 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 Milsap submits “would have created a quantitative exposure and

dose database for these workers”25—is evidence that “BP consciously, or in the most

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

doses of spill workers.”26 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

25 R. Doc. No. 50, at 4.

26 Id. at 9.

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 Peairs v. BP Expl. & Prod., Inc.,

No. 17-3596, 2022 WL 2817852, at *10 n.53 (E.D. La. July 19, 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.” Peairs, 2022 WL 2817852, at *10 n.53; see

also Harrison, 2022 WL 2390733, at *7.

The defendants also argue that Cook’s failure to verify Milsap’s diagnosis27

further renders his opinion unreliable. Per the American Medical Association’s Guide

to the Evaluation of Disease and Injury Causation (“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.28

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 defendants lodged 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 failure to perform step one of the AMA Guide’s is

concerning because “[e]xposure becomes relevant only when the presence of disease or

27 Cook’s report does not mention Milsap—or any B3 plaintiff—specifically.

28 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. 46-6), at 578.

illness is established.”29 Cook’s failure to establish Milsap’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,” and the Court’s ruling on defendants’ Daubert motion

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

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

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

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

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

353. As this Court has noted previously, “[w]hile this shortcoming is not dispositive

in the Court’s analysis, it is a factor that weighs against admitting Cook’s opinions.”

Finally, as the defendants argue in their motion in limine and as other sections

of this Court have agreed, Cook’s reliance on the “ever vs. never” binary exposure

model in his report raises concerns about the reliability of his methodology. See

Grant, 2022 WL 2467682, at *10–11. Cook’s report states that “GuLF STUDY

researchers . . . noted that it would be difficult to obtain accurate and comprehensive

exposure information on participants” in the study as “many of the assessments

would have been made months after the workers were exposed.”30 Cook also notes

that NIOSH investigators researching the Deepwater Horizon spill “disregarded the

29 Id. (emphasis added).

30 R. Doc. No. 47-6, at 57.

self-reports of [some] workers, determining that the workers’ self-reported exposures

had not been likely.”31 Accordingly, as the data Cook relied upon for his “ever vs.

never” exposure model itself is of suspect reliability, his analysis suffers from the

same lack of reliability.

Collectively, concerns for the reliability of Cook’s report based on his failure to

identify a harmful level of exposure, to verify Milsap’s diagnoses, and to use

acceptable methodology in evaluating the scientific literature referenced in his report

render his opinion unreliable.

B. Defendants’ 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 Milsap’s sole

expert on general causation.32 With Cook’s opinion on general causation now

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

result, Milsap 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.

31 Id. at 42.

32 Milsap’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 3.

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

deficiency as to general causation evidence. See, e.g., Peairs, 2022 WL 2817852,

at *12.

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

3099925, at *3; Favorite, 2022 WL 2789029, at *3; Grant, 2022 WL 2467682, at *12;

Barkley, 2022 WL 2342474, at *6; Harrison, 2022 WL 2390733, at *7; Street, 2022

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

C. Milsap’s Motion to Continue

Milsap seeks to continue all scheduling deadlines until his counsel has

completed discovery on the issue of causation, and to continue indefinitely the

submission date for defendants’ motion for summary judgment and motion in

limine.33

Milsap first argues that the Court should continue all scheduling deadlines to

“allow factual discovery aimed at individual plaintiff issues to be put on hold while

discovery proceeds on what has become the defining legal issue—general causation .

. . .”34 Next, Milsap asserts that the Court should continue the submission deadlines

for the defendants’ motion for summary judgment and motion in limine to “allow time

for the discovery disputes to be resolved, and discovery relating to BP and

biomonitoring to be completed”35 in Torres-Lugo v. BP Exploration & Production, Inc.,

No. 20-210 (E.D. La. June 3, 2022), a case pending before another section of this

Court.

At issue in Torres-Lugo is a motion for sanctions filed by another B3 plaintiff

against the same defendants in the present case, alleging that David Dutton, BP’s

33 R. Doc. No. 64-1, at 1.

34 Id. at 4.

35 Id.

30(b)(6) witness, “failed to properly respond to questions and seek information

necessary to be a corporate representative witness”36 as to the issue of BP’s dermal

monitoring and biomonitoring of cleanup workers.

However, the issue of BP’s alleged failure to collect biomonitoring data does not

address the dispositive question at hand—whether Cook’s report is sufficient to

establish general causation. Whether the Torres-Lugo court decides that sanctions

are warranted and whether these potential sanctions would result in more discovery

pertaining to BP’s collection of biomonitoring data is irrelevant. Sanctions and more

discovery on BP’s internal decision-making regarding collecting data have no effect

on the data actually available to Cook to prove general causation and therefore are

not outcome determinative of BP’s motions currently before the Court.

Moreover, as noted above, Cook’s general causation analysis was not limited to

data from BP or derived from the Deepwater Horizon spill; Cook had other data

available to him to support his analysis. For example, the Unified Area Command

“engaged in extensive and coordinated data collection and environmental monitoring

efforts . . . .” Belo Cases, 2020 WL 6689212, at *4. Cook could have sought to support

his general causation analysis with data collected as part of these efforts, as well as

by “relying on the universe of relevant epidemiology and toxicology literature

studying the spill or by relying on the work of Dr. Jones.” Harrison, 2022 WL 2390733,

at *7. Additionally, as noted by another section of the Court, Cook could also have

buttressed his analysis with epidemiological studies of the health effects on

36 Id. at 6.

responders from prior oil spills, not just from data on the Deepwater Horizon spill.

Grant v. BP Exploration & Production, Inc., No. 17-4334 (E.D. La. July 6, 2022) (ECF

No. 63) (Vance, J.).

The dispute at issue in the Torres-Lugo case has no effect on the data available

to Cook, and therefore has no effect on the Court’s analysis regarding the defendant’s

pending motions before the Court. As another section of this Court has noted, the

issue of BP’s failure to collect biomonitoring data is “irrelevant” because “the point of

an expert on general causation is to explain whether the exposure to a particular

chemical is capable generally of causing a certain health issue in the general

population. It is not dependent on data from the particular incident at issue.” Burns

v. BP Expl. & Prod., No. 17-3117, 2022 WL 2952993, at n. 5 (E.D. La. July 25, 2022)

(Ashe, J.).

Considering the above, the Court finds that continuing all scheduling

deadlines and submission deadlines would not ameliorate the lack of general

causation evidence to support Milsap’s claims. Accordingly, Milsap’s motion to

continue is denied.

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 and Milsap’s claims are DISMISSED WITH PREJUDICE;

IT IS FURTHER ORDERED that Milsap’s motion to continue is DENIED.

New Orleans, Louisiana, August 15, 2022.

“ah M. AFRICK

UNITED STATES DISTRICT JUDGE

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