Moorere v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

HOLLY MOORERE CIVIL ACTION

VERSUS NO. 17-4461

BP EXPLORATION & PRODUCTION, SECTION D (4)

INC., ET AL.

ORDER

Before the Court is BP’s Daubert Motion to Exclude the Causation Testimony

of Plaintiff’s Expert, Dr. Jerald Cook1 filed by Defendants BP Exploration &

Production Inc., BP America Production Company, BP p.l.c., Halliburton Energy

Services, Inc., Transocean Holdings, LLC, Transocean Deepwater, Inc., and

Transocean Offshore Deepwater Drilling, Inc. (collectively “Defendants”) as well as

Defendants’ Motion for Summary Judgment.2 Plaintiff Holly Moorere (“Plaintiff”)

opposes both Motions.3 Defendants have filed Replies in support of their Motions.4

After careful consideration of the parties’ memoranda, the record, and the

applicable law, the Motions are GRANTED.

I. FACTUAL & PROCEDURAL BACKGROUND

This case arises from the Deepwater Horizon oil spill in the Gulf of Mexico in

2010 and the subsequent cleanup efforts of the Gulf Coast. On January 11, 2013,

United States District Judge Carl J. Barbier, who presided over the multidistrict

litigation arising out of the Deepwater Horizon incident, approved the Deepwater

1 R. Doc. 51.

2 R. Doc. 52.

3 R. Doc. 59; R. Doc. 60.

4 R. Doc. 65; R. Doc. 66.

Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).5

However, certain individuals, referred to as “B3” plaintiffs, either opted out of or were

excluded from the MSA.6 Plaintiff Holly Moorere opted out of the MSA and,

accordingly, is a B3 plaintiff.7

Plaintiff filed this individual action against Defendants on May 1, 2017 to

recover for injuries allegedly sustained as a result of the oil spill.8 For approximately

four months in 2010, Plaintiff worked as a beach cleanup worker, tasked with

cleaning up oil and oil-covered debris from the beaches and coastal areas in Gulf

Shores, Alabama.9 Plaintiff alleges that Defendants’ negligence and recklessness in

both causing the Gulf oil spill and subsequently failing to properly design and

implement a clean-up response caused her to suffer myriad injuries including

shortness of breath, headaches, coughing, burning eyes, bronchitis, hair falling out,

and sinus problems.10 Specifically, Plaintiff seeks to recover economic damages,

personal injury damages—including damages for past and future medical expenses

and for pain and suffering—punitive damages, and attorneys’ fees, costs, and

expenses.11

To help support her claims that exposure to the chemicals present in the oil

spilled by Defendants caused her particular health symptoms, Plaintiff offers the

5 See Brown v. BP Expl. & Prod. Inc., Civ. A. No. 18-9927, 2019 WL 2995869, at *1 (E.D. La. July 9,

2019) (citation omitted) (Africk, J.).

6 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 *2 (E.D. La. Apr. 1, 2021).

7 R. Doc. 1 at ¶ 5.

8 Id.

9 R. Doc. 51-1 at p. 2; R. Doc. 51-2 at p. 5.

10 R. Doc. 1 at pp. 4–5; R. Doc. 1-1 at pp. 5, 8.

11 R. Doc. 1 at pp. 5–6.

report (“Report”) and testimony of Dr. Jerald Cook.12 Dr. Cook is a retired Navy

physician with expertise specifically as an occupational and environmental

physician.13 Dr. Cook’s Report is not tailored directly to Plaintiff’s claims; rather, Dr.

Cook’s generic causation report has been utilized by numerous B3 plaintiffs,

including many plaintiffs currently before this Court as well as in other cases before

other sections of this court.14 Accordingly, Dr. Cook’s Report pertains only to general

causation and not to specific causation.15

Dr. Cook’s Report from March 14, 2022—the second version of his Report and

the one at issue in this case—contains five chapters.16 Chapter 1 details Dr. Cooks

expert credentials, which Defendants do not challenge.17 Chapter 2 describes the

Deepwater Horizon oil spill.18 Chapter 3 outlines the particular methodologies

employed by Dr. Cook in reaching his opinions.19 Specifically, Dr. Cook describes how

he relied upon the so-called Bradford Hill factors in conducting his general causation

analysis.20 After evidence demonstrating an association between a particular

chemical and a disease has been established, the Bradford Hill criteria are used to

determine whether a causal relationship exists.21 One factor in particular, the dose-

12 R. Doc. 51-5.

13 Id. at p. 5.

14 R. Doc. 51-1 at p. 3; Johns v. BP Expl. & Prod. Inc., No. CV 17-3304, 2022 WL 1811088, at *2 (E.D.

La. June 2, 2022) (Ashe, J.) (“Cook issued an omnibus, non-case specific general causation expert

report that has been used by many B3 plaintiffs.”).

15 R. Doc. 60 at p. 3 (“[P]laintiffs had Dr. Cook prepare a report with his general causation

opinions[.]”).

16 R. Doc. 51-5.

17 Id. at p. 5; R. Doc. 51-1 at p. 6.

18 R. Doc. 51-5 at p. 7.

19 Id. at p. 14.

20 Id. at pp. 24–29.

21 Id. at p. 24. The Bradford Hill criteria include: “(1) Temporal relationship, (2) Strength of the

association, (3) Dose-response relationship, (4) Replication of the findings, (5) Biological plausibility,

response relationship, underlies the main basis of Defendants’ argument regarding

the unreliability of the Report.22

Next, Chapter 4 discusses a number of studies examining both the Deepwater

Horizon oil spill as well as other historic oil spills from around the world.23 This

section purports to demonstrate a relationship between exposure to oil and a variety

of diseases and health effects. The Report includes a number of Tables with data

taken from several oil spill studies demonstrating a higher prevalence of certain

health conditions among those spill responders who were exposed to oil as compared

to persons not exposed.24 Finally, Chapter 5 presents Dr. Cook’s opinions on general

causation for several different categories of health conditions: (1) respiratory

conditions; (2) dermal conditions; (3) ocular conditions; and (4) cancer.25

Defendant filed the instant Motions on June 13, 2022.26 In their Daubert

Motion in Limine, Defendants contend that Dr. Cook’s report should be excluded as

it is both unreliable and unhelpful to the trier of fact.27 Defendants primarily point

to the opinions of other sections of this court which have excluded this very same

Report on grounds of unreliability to suggest that this Court should likewise exclude

the Report.28 Further, Defendants contend that Dr. Cook’s specific methodology is

(6) Consideration of alternative explanations, (7) Cessation of exposure, (8) Specificity of the

association, and (9) Consistency with other knowledge.” Id. at p. 25 (citing Reference Manual on

Scientific Evidence, Third Edition (National Research Council, 2011)).

22 R. Doc. 51-1 at pp. 7–11.

23 R. Doc. 51-5 at p. 32.

24 Id. at pp. 46–60.

25 Id. at p. 70.

26 R. Doc. 51; R. Doc. 52.

27 R. Doc. 51-1 at p. 6.

28 Id. at pp. 7–8; R. Doc. 63 at pp. 2–3.

unreliable and that Dr. Cook failed to establish the harmful level of exposure to the

chemicals Plaintiff allegedly was exposed to at which harmful health effects occur.29

Next, because Dr. Cook should be excluded to testify, Defendants argue, the Court

should grant their Motion for Summary Judgment as Plaintiff is unable to establish

general causation through expert testimony, a necessary requirement under

controlling Circuit precedent.30

Plaintiff disputes Defendants’ characterization of Dr. Cook’s Report. Plaintiff

argues that Dr. Cook utilized a proper methodology in conducting his general

causation analysis and that he thoroughly explained his methods.31 Further, Plaintiff

argues that the Report does provide adequate harmful exposure level data for each

health condition exhibited by Plaintiff and that to the extent that Dr. Cook is unable

to provide more specific exposure-level data, it is the fault of Defendants for

improperly restricting access to scientific research teams to gather such data.32

Finally, Plaintiff contends that expert testimony is not necessary for a transient

symptom case. In support of that argument, Plaintiff points to orders from other

sections of this court in which the court found that “expert testimony on general

causation combined with specific evidence of the nature of the class member’s

exposure is sufficient to permit the jury to conclude that the E.A. release was more

likely than not the cause of the class representative’s transient symptoms.”33

29 R. Doc. 51-1 at pp. 7–16.

30 R. Doc. 52-1 at p. 2.

31 R. Doc. 60 at pp. 19–20.

32 Id. at pp. 4–14.

33 Id. at p. 16 n.15 (quoting Guidry v. Dow Chem. Co. No. 19-12233, 2021 WL 4460505, at *3 (E.D.

La. Sept. 29, 2021)).

Further, in her opposition to Defendants’ Motion for Summary Judgment, Plaintiff

points to orders from other sections of this court which concluded that expert

testimony may not be required to establish symptoms within the common knowledge

of lay people.34

The Court addresses each argument and each Motion in turn.

II. LEGAL STANDARD

A. Motion in Limine

The district court has considerable discretion to admit or exclude expert

testimony under Fed. R. Evid. 702,35 and the burden rests with the party seeking to

present the testimony to show that the requirements of Rule 702 are met.36 Rule 702

provides that an expert witness “qualified . . . by knowledge, skill, experience,

training or education may testify in the form of an opinion” when all of the following

requirements are met:

(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.37

34 R. Doc. 59 at pp. 4–6.

35 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39, 118 S.Ct. 512 (1997); Seatrax, Inc. v. Sonbeck

Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000); Tajonera v. Black Elk Energy Offshore Operations, LLC,

Civ. A. No. 13-0366 c/w 13-0550, 13-5137, 13-2496, 13-5508, 13-6413, 14-374, 14-1714, 2016 WL

3180776, at *8 (E.D. La. June 7, 2016) (Brown, J.) (citing authority).

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

37 Fed. R. Evid. 702; Tajonera, Civ. A. No. 13-0366, 2016 WL 3180776, at *8.

Rule 702 codifies the Supreme Court’s opinion in Daubert v. Merrell Dow

Pharmaceuticals, Inc., which charges district courts to act as “gatekeepers” when

determining the admissibility of expert testimony.38 “To be admissible under Rule

702, the court must find that the evidence is both relevant and reliable.”39 According

to the Fifth Circuit, reliability is determined by assessing whether the reasoning or

methodology underlying the testimony is scientifically valid, while relevance depends

on whether the reasoning or methodology underlying the testimony can be properly

applied to the facts at issue.40 The purpose of the reliability requirement is to exclude

expert testimony based merely on subjective belief or unsupported speculation.41

To satisfy the reliability prong of the Daubert/Rule 702 analysis, a “party

seeking to introduce expert testimony must show (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods reliably to the

facts of the case.”42 To prove reliability, the proponent of the expert testimony must

present some objective, independent validation of the expert’s methodology.43 The

objective of this Court’s gatekeeper role is to ensure that an expert “employs in the

38 United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993)).

39 United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d

389, 423 (5th Cir. 2010)).

40 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).

41 Tajonera, 2016 WL 3180776, at *8 (citing Daubert, 509 U.S. at 590).

42 Recif Res., LLC v. Juniper Cap. Advisors, L.P., Civ. A. No. H-19-2953, 2020 WL 5623982, at *2 (S.D.

Tex. Sept. 18, 2020) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)) (internal quotation

marks omitted).

43 Recif Resources, LLC, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531,

536 (5th Cir. 2013)).

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.”44

B. Summary Judgment

Summary judgment is appropriate under Federal Rule of Civil Procedure 56

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”45 When assessing whether a

genuine dispute regarding any material fact exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or

weighing the evidence.”46 While all reasonable inferences must be drawn in favor of

the nonmoving party, a party cannot defeat summary judgment with conclusory

allegations, unsubstantiated assertions or “only a scintilla of evidence.”47 Instead,

summary judgment is appropriate if a reasonable jury could not return a verdict for

the nonmoving party.48

If the dispositive issue is one on which the moving party will bear the burden

of proof at trial, the moving party “must come forward with evidence which would

entitle it to a directed verdict if the evidence went uncontroverted at trial.”49 The

non-moving party can then defeat summary judgment by either submitting evidence

44 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hodges v. Mack Trucks Inc., 474 F.3d 188,

194 (5th Cir. 2006).

45 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986).

46 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)

(citations omitted).

47 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

48 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson, 477 U.S. at 248).

49 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).

sufficient to demonstrate the existence of a genuine dispute of material fact, or by

“showing that the moving party’s evidence is so sheer that it may not persuade the

reasonable fact-finder to return a verdict in favor of the moving party.”50 If, however,

the nonmoving party will bear the burden of proof at trial on the dispositive issue,

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.51 The burden then shifts to the nonmoving party who must go beyond

the pleadings and, “by her own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’”52

III. ANALYSIS

A. Motion in Limine

The Court recognizes that it does not write on a blank slate when addressing

the admissibility of Dr. Cook’s expert report dated March 14, 2022. Every section of

this court—eight in total—to have considered the identical issue presented in the

instant Motion has uniformly held that Dr. Cook’s report fails to satisfy the Daubert

standards for reliability.53 While the Court finds the thoughtful opinions and

50 Id. at 1265.

51 See Celotex, 477 U.S. at 322–23.

52 Id. at 324 (quoting Fed. R. Civ. P. 56(e)).

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

2022) (Africk, J.); Johns, 2022 WL 1811088 (Ashe, J.); Heathington v. BP Expl. & Prod. Inc., No. CV

17-4353, 2022 WL 2986490 (E.D. La. July 28, 2022) (Barbier, J.); Baggett v. BP Expl. & Prod. Inc., No.

CV 17-3030, 2022 WL 4242521 (E.D. La. Sept. 13, 2022) (Guidry, J.); Reed v. BP Expl. & Prod., Inc.,

No. CV 17-3603, 2022 WL 3099925 (E.D. La. Aug. 4, 2022) (Milazzo, J.); Harrison v. BP Expl. & Prod.

Inc., No. CV 17-4346, 2022 WL 2390733 (E.D. La. July 1, 2022) (Morgan, J.); Dawkins v. BP Expl. &

Prod., Inc., No. CV 17-3533, 2022 WL 2315846 (E.D. La. June 28, 2022) (Vance, J.); Davis v. BP Expl.

& Prod., Inc., No. CV 17-4664, 2022 WL 2789027 (E.D. La. July 15, 2022) (Zainey, J.).

analyses of the other Sections to be persuasive, the Court nevertheless conducts an

independent inquiry here.

Defendants argue that Dr. Cook’s Report should be excluded for five principal

reasons: (1) Dr. Cook’s failure to verify Plaintiff’s alleged medical conditions; (2) Dr.

Cook’s failure to follow the proper causation-analysis methodology; (3) Dr. Cook’s

failure to adequately evaluate the relevant scientific epidemiological literature; (4)

Dr. Cook’s failure to identify the harmful level exposure for each and every chemical

that Plaintiff alleges to have been exposed to; and (5) Dr. Cook’s failure to make his

opinions helpful to the trier of fact in this case due to the lack of overlap between Dr.

Cook’s opinions and Plaintiff’s allegations.54

Plaintiff’s response is twofold: (1) that expert testimony on specific causation

is not required where, as here, the physical symptoms complained of are temporary

and within a layperson’s common knowledge; and (2) that Dr. Cook’s Daubert

methodology is sufficient to establish general causation.55 Regarding this latter

contention, Plaintiff argues that Dr. Cook has thoroughly analyzed the relevant

scientific epidemiological literature such as the Coast Guard Cohort and the GuLF

STUDY and that Dr. Cook does address the requisite harmful exposure level data.56

Additionally, Plaintiff chides Defendants for allegedly obstructing the ability of

researchers to conduct a proper analysis of the oil spill by allegedly preventing the

54 R. Doc. 51-1 at pp. 7, 11–16.

55 R. Doc. 60 at pp. 14, 19.

56 Id. at pp. 9–10, 19–20.

recording of certain dermal and biological monitoring data.57 Finally, Plaintiff

disagrees with Defendants’ argument that there is not sufficient overlap between the

health effects addressed in Dr. Cook’s report and the health effects alleged by

Plaintiff.58

The burden of proof is on the B3 plaintiffs to prove that “the legal cause of the

claimed injury or illness is exposure to oil or other chemicals used during the

response.”59 To prove causation, the B3 plaintiffs are required to provide reliable

expert testimony.60 “A plaintiff in such a case cannot expect lay fact-finders to

understand medical causation; expert testimony is thus required to establish

causation.”61

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

evidence in toxic tort cases.”62 First, a court must determine whether general

causation exists.63 “General causation is whether a substance is capable of causing a

particular injury or condition in the general population.”64 Second, if the court finds

that there is admissible general-causation evidence, “the district court must

determine whether there is admissible specific-causation evidence.’”65 “[S]pecific

57 Id. at pp. 4–9. The Court notes that this allegation was the subject of a discovery dispute leading

to the imposition of sanctions against Defendants. See Torres-Lugo v. BP Expl. & Prod., Inc., No. 20-

210, R. Doc. 136 (E.D. La. July 18, 2022).

58 R. Doc. 60 at p. 20.

59 In re Oil Spill, 2021 WL 6053613, at *11.

60 See, e.g., Seaman v. Seacor Marine, LLC, 326 Fed. Appx. 721, 723 (5th Cir. 2009).

61 Id. (citing Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).

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

63 Id.

64 Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)).

65 Id.

causation is whether a substance caused a particular individual’s injury.”66 If the

court finds that there is no admissible general causation evidence, it need not

consider the issue of specific causation.67

To establish general causation, a causation expert must identify “the harmful

level of exposure to a chemical” at which physical symptoms manifest.68 As explained

by Dr. Cook, nearly every chemical on Earth may be toxic or even fatal at a certain

level of exposure.69 Thus, causation experts determine not only whether a chemical

is capable of causing certain health effects, but at what level of exposure do those

health affects appear. Experts, such as Dr. Cook, refer to this inquiry with the

maxim, “the dose determines the poison.”70 This analysis is also referred to in the

Bradford Hill factors as the dose-response relationship.71

In recognition of the importance of this step of the causation analysis, the

American Medical Association’s Guide to the Evaluation of Disease and Injury

Causation states that determining “whether the estimated dose was sufficient to

explain observed clinical effects known to be associated with the agent in question”

is the “most critical phase of the hazard evaluation process.”72 Relatedly, the Fifth

Circuit states that this detail is one of the “minimal facts necessary to sustain the

66 Id.

67 Id. (“Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to

admissible general-causation evidence.”).

68 Allen, 102 F.3d at 199.

69 R. Doc. 51-5 at p. 27; see also English v. BP Expl. & Prod. Inc., No. CV 13-1033, R. Doc. 48-6

(Deposition of Dr. Jerald Cook) at 150:14–16 (E.D. La. September 26, 2022) (Vitter, J.) (“Like I said,

something not very harmful, such as water, can become harmful at a high enough dose.”).

70 R. Doc. 51-5 at p. 27.

71 Id.

72 R. Doc. 51-7 at pp. 6–7. Dr. Cook testified that he regularly consults the AMA Guide. See English,

R. Doc. 48-6 (Deposition of Dr. Jerald Cook) at 59:22–60:1.

plaintiff’s burden in a toxic tort case.”73 Plaintiffs must provide reliable expert

testimony establishing the requisite level of exposure necessary to cause each alleged

physical harm.74 Accordingly, failure to properly identify the level of exposure to a

particular chemical at which harmful effects occur necessarily renders a general

causation opinion to be unreliable and, thus, inadmissible.75

The Court concurs with the other sections of the court that have addressed this

issue and found Dr. Cook’s failure to address the level of harmful dosage of each

relevant chemical to be ultimately fatal to his report. At no point in his report does

Dr. Cook adequately identify what level of exposure to the chemicals present in the

oil is capable of producing the harmful health effects alleged by Plaintiff. Indeed, as

numerous Sections of this Court have pointed out, Dr. Cook does not even specify the

exact chemicals that Plaintiff was allegedly exposed to, let alone provide evidence

regarding the level of exposure at which Plaintiff’s symptoms might manifest.76

Dr. Cook attempts to establish a sufficient dose-response relationship

demonstrating the level of exposure to oil required to cause the complained-of

73 Allen, 102 F.3d at 199; accord McGill v. BP Expl. & Prod., Inc., 830 Fed. Appx. 430, 433 (5th Cir.

2020) (affirming exclusion of expert’s opinions where “none [of the studies on which the expert relied]

provide conclusive findings on what exposure level of Corexit is hazardous to humans.”).

74 Allen, 102 F.3d at 195; see also McGill, 830 Fed. Appx. at 433 n.1 (excluding expert testimony

where the studies relied upon by expert “did not address what level of exposure would be unsafe for

humans or what specific illnesses that exposure may cause.”) (emphasis added).

75 See Dawkins, 2022 WL 2315846, at *6 (“Accordingly, if the Court finds that plaintiff cannot ‘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,’ then the Court’s inquiry into general

causation is complete.” (quoting Williams v. BP Expl. & Prod., Inc., No. 18-9753, 2019 WL 6615504,

at *8 (E.D. La. Dec. 5, 2019) (Morgan, J.)).

76 See, e.g., Dawkins, 2022 WL 2315846, at *7 (“[Dr. Cook] fails to even specify what constituent

chemicals within ‘crude oil’ and ‘weathered oil’ he is purportedly analyzing for a dose-response

relationship.”); Johns, 2022 WL 1811088, at *2 (“Yet, Cook’s report does not include any opinion about

a link between any specific chemical compound and any particular disease.”).

symptoms at several points in his report. In Chapter 4, Dr. Cook provides multiple

Tables purporting to establish a relationship between exposure to oil and ill health.77

The data from the Tables themselves is taken from prior studies evaluating the

effects of oil exposure on responders to the Deepwater Horizon Gulf oil spill.78 The

Tables indicate a statistically significant relationship between oil exposure and the

onset of various health problems, including respiratory, neurological, dermal,

gastrointestinal, and genitourinary ailments.79 However, some of these Tables—and

the underlying studies—fail to demonstrate the level of exposure to the chemicals in

the oil at which these symptoms manifested. Rather, these studies instead concerned

themselves only with the binary question of whether or not the workers were exposed

to oil at all.80 This type of study is referred to as an “ever/never” study because the

participants are divided into two groups: those that were exposed to oil and those who

were not.81 Taking those studies at face value, the Court emphasizes that studies

indicating that health problems may arise from exposure to oil do not answer the

essential question of what level of exposure is necessary to cause the particular

symptoms.82 As such, the Court finds that these portions of Dr. Cook’s Report fail to

satisfy Fifth Circuit standards for reliability of expert reports.

77 R. Doc. 51-5 at pp. 46–60.

78 Id. at pp. 44–45. These studies specifically examined Coast Guard service members who were

responders in the Deepwater Horizon spill. See id.

79 See, e.g., id. at p. 46 (Table 4-1).

80 See, e.g., id. at p. 47 (Table 4-2) (comparing health conditions between responders with and without

oil exposure).

81 Id.; see also id. at p. 46 (“They compared of responders versus non-responders, and “ever” oil exposure

with “never” oil exposure among the responders.”).

82 See Dawkins, 2022 WL 2315846, at *8 (“These studies, both of which are ‘silent on the level of

exposure . . . that would be significant,’ do not assist Dr. Cook in meeting [Plaintiff]’s minimal burden

Other Tables in Dr. Cook’s Report, however, do provide greater detail on the

relationship between the level of exposure to oil and the prevalence of health effects.

For instance, Table 4-1 reports the prevalence ratio (“PR”) of certain health effects of

those who were exposed to oil and further breaks the data down into whether the

person had a low, medium, or high exposure.83 Briefly, the Report reflects that the

PR is the ratio comparing the prevalence of symptoms in those who were exposed to

the oil versus those who were not.84 Thus, a higher PR indicates a greater prevalence

of a particular health effect in an oil-exposed person as compared to a non-exposed

person. Importantly, as Dr. Cook specifically notes, “prevalence ratios do show

associations, but not causation, because they do not account for when a disease began,

so it does not meet the temporal relationship criterion of causation.”85

Despite ostensibly indicating an association between a higher level of exposure

to oil and a greater prevalence of ill health effects, what the data still fails to show is

the level of exposure at which each of the complained of health problems manifest.

That there is some positive association between prevalence of health effects and the

level of exposure does not answer the antecedent—and necessary—question of what

particular dose is sufficient to cause the particular health effect. None of these

studies show what level of exposure to oil and dispersants is required for health

conditions, such as those complained of by Plaintiff, to appear. Accordingly, they too

of establishing by ‘[s]cientific knowledge . . . the harmful level of exposure to a chemical.’” (quoting

Seaman, 326 Fed. Appx. at 727)).

83 R. Doc. 51-5 at p. 46.

84 Id. at pp. 56–57.

85 Id. at p. 57 (emphasis added).

are insufficient to satisfy Plaintiff’s burden to demonstrate a harmful level of

exposure.

Dr. Cook’s general causation opinions of specific health conditions found in

Chapter 5 of his Report suffer for many of the above reasons. As carefully explained

by another section of this court, many of the studies relied upon by Dr. Cook are

“silent on the level of exposure . . . that would be significant” to demonstrate a proper

dose-response relationship.86 In fact, many of the studies utilize the same

“ever/never” dichotomy which, for the reasons explained above, does not satisfy

Plaintiff’s burden to adequately establish a harmful level of exposure.87

The Court recognizes that mathematically precise figures detailing the exact

level of exposure at which physical conditions manifest may often be difficult or

impossible to ascertain.88 As Dr. Cook notes, “[t]he quantified dose is usually

unknown in epidemiology studies and can be very challenging to accurately measure

or estimate.”89 Nevertheless, for the above-discussed reasons, the Court finds that

Dr. Cook’s Report fails to adequately demonstrate the harmful dosage of the

particular chemicals found in the type of weathered oil and dispersants encountered

by Plaintiff.

86 See Dawkins, 2022 WL 2315846, at *8.

87 See, e.g., R. Doc. 51-5 at p. 74.

88 See Harrison, 2022 WL 2390733, at *6 (“While Courts ‘do not require a mathematically precise table

equating levels of exposure with levels of harm . . . there must be evidence from which a reasonable

person could conclude that a defendant’s emission has probably caused a particular plaintiff the kind

of harm of which he or she complains before there can be a recovery.’” (quoting Wright v. Willamette

Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996)).

89 R. Doc. 51-5 at p. 28.

Plaintiff contends that Dr. Cook’s difficulty in utilizing harmful exposure level

data stems from Defendants’ intentional obstruction of researchers from collecting

data on oil cleanup workers.90 Without addressing the veracity of these allegations,

Plaintiff’s argument misses the mark because a general causation analysis does not

depend upon particular sampling taken from the incident in question. Rather, a

general causation expert is allowed to consult the entire universe of relevant

epidemiological studies to support their opinion.91 Dr. Cook, after all, “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.”92 Accordingly, the

Court does not find that Dr. Cook is excused from providing the requisite dose-

response relationship data on account of Defendants’ alleged misdeeds.

Because the Court finds that Dr. Cook’s Report fails to demonstrate the

“minimal facts necessary to sustain the plaintiff’s burden in a toxic tort case,”93 i.e.,

the harmful exposure level, the Court does not find it necessary to address

Defendant’s other arguments as to why the Report should be excluded.94 Accordingly,

90 R. Doc. 60 at pp. 4–9.

91 Indeed, Dr. Cook himself utilized studies from different oil spills. R. Doc. 51-5 at pp. 33–35; see also

Heathington, 2022 WL 2986490, at *4 (“Notably, this inquiry does not depend upon environmental

sampling data taken as part of the incident.”).

92 Dawkins, 2022 WL 2315846, at *8.

93 Allen, 102 F.3d at 199.

94 R. Doc. 51-1 at pp. 7, 11–16. Although some sections have addressed multiple rationales for excluding

Dr. Cook’s Report, see, e.g., Novelozo, 2022 WL 1460103, others have relied solely upon Dr. Cook’s

failure to provide harmful exposure level data as grounds for exclusion, see, e.g., Johns, 2022 WL

1811088.

the Court finds that Dr. Cook should be excluded from testifying as an expert on

general causation in this matter.

B. Motion for Summary Judgment

Dr. Cook’s Report is Plaintiff’s sole expert opinion on general causation.95

Because the Court finds it appropriate to exclude the Report for failure to comport

with the Daubert standards for reliability, Plaintiff accordingly lacks expert

testimony on general causation. Without expert testimony, which is required to prove

general causation,96 Plaintiff has failed to demonstrate a genuine dispute of material

fact as to her claims that her injuries were caused by exposure to oil. “When a

plaintiff has no expert testimony to prove his medical diagnosis or causation at trial,

the plaintiff’s suit may be dismissed at the summary judgment stage.”97 Thus,

Defendants’ Motion for Summary Judgment must be granted as Defendants are

entitled to judgment as a matter of law due to Plaintiff’s failure to establish causation.

Plaintiff’s further argument that both of Defendants’ Motions should be denied

because expert testimony is not necessary in a transient symptom case, such as here,

and Plaintiff’s lay testimony can establish her injuries conflates two separate issues,

general causation and specific causation. In support of this argument, Plaintiff cites

to orders from other sections of this court which have concluded that “temporary

physical irritant symptoms and mental anguish symptoms to be ‘within the common

95 Plaintiff’s other retained expert, Dr. Rachel Jones, does not address the issue of general causation

nor does she cure any of the problems contained within Dr. Cook’s Report.

96 Plaintiff does not dispute that expert testimony is required to establish general causation. See R.

Doc. 60 at p. 3; see also, e.g., Perkins v. BP Expl. & Prod., No. 17-4476, 2022 WL 972276, at *2 (E.D.

La. Mar. 31, 2022) (Milazzo, J.) (“In a toxic tort suit such as this one, the plaintiff must present

admissible expert testimony to establish general causation as well as specific causation.”).

97 Williams, 2019 WL 6615504, at *11.

knowledge of lay people’ and for which expert testimony was not necessary to

establish causation.”98 The order relied on by Plaintiff very clearly states, “[b]ecause

BP, for purposes of this motion, does not contest Plaintiff’s general causation report

from Jerald Cook, M.D., (Rec. Doc. 28-2, at 3), the Court will only evaluate specific

causation.”99 Indeed, the final sentence of the Order concludes, “[t]herefore, Plaintiff

does not require an expert on specific causation for these particular medical

conditions.”100 The issue before this Court centers on the sufficiency of Plaintiff’s

general causation expert; thus, Plaintiff’s arguments on the necessity of expert

testimony to establish specific causation are dismissed as irrelevant and without

merit.

IV. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Daubert Motion to Exclude the

Causation Testimony of Plaintiff’s Expert, Dr. Jerald Cook101 is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary

Judgment102 is GRANTED.

98 R. Doc. 60 at p. 18 (quoting Stephens v. BP (Civ. Action No. 17-4294), Turner v. BP (Civ. Action No.

17-4210); Wallace v. BP (Civil Action No. 13-1039)).

99 Stephens v. BP (Civ. Action No. 17-4294), R. Doc. 61 at n.2.

100 Id.

101 R. Doc. 51.

102 R. Doc. 52.

IT IS FURTHER ORDERED that Plaintiffs claims against Defendants are

DISMISSED with prejudice.

New Orleans, Louisiana, September 27, 2022.

WENDY igen

United States District Judge