Tickell v. BP America Production Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

REBECCA TICKELL CIVIL ACTION

VERSUS NO. 17-3169

BP EXPLORATION & PRODUCTION, SECTION: D (1)

INC., ET AL.

ORDER & REASONS

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, and BP p.l.c. as well as

Defendants’ Motion for Summary Judgment.2 Halliburton Energy Services, Inc.,

Triton Asset Leasing GmbH, Transocean Holdings, LLC, Transocean, Ltd.,

Transocean Deepwater, Inc., and Transocean Offshore Deepwater Drilling, Inc.

(collectively “Defendants”) have joined in both motions.3 Plaintiff Rebecca Tickell

(“Plaintiff”) opposes both Motions.4 Defendants have filed Replies in support of their

Motions and Plaintiff has filed a Supplemental Memorandum in Opposition to BP’s

Daubert Motion to Exclude the Causation Testimony of Plaintiffs’ [sic] Expert, Dr.

Jerald Cook.5

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

applicable law, the Defendants’ Motions are GRANTED.

1 R. Doc. 40.

2 R. Doc. 41.

3 See R. Doc. 40 n.1; R. Doc. 41 n.1.

4 R. Doc. 42; R. Doc. 43.

5 Defendants’ Replies, R. Doc. 49 and R. Doc. 50. Plaintiff’s Supplemental Memorandum, R. Doc. 54.

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

Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).6

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

excluded from the MSA.7 Plaintiff Rebecca Tickell opted out of the MSA and,

accordingly, is a B3 plaintiff.8

Plaintiff filed this individual action against Defendants on April 11, 2017 to

recover for injuries allegedly sustained as a result of the oil spill.9 For several months

in 2010, Plaintiff worked as an environmental documentary film maker, documenting

the clean-up of the Gulf oil spill throughout locations in Louisiana, Alabama, and

Florida.10 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 coal tar

phototoxicity, respiratory inflammation, rashes, miscarriage, and single umbilical

artery birth defect.11 Specifically, Plaintiff seeks to recover economic damages,

6 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.).

7 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).

8 R. Doc. 1-2 at p. 2.

9 Id.

10 R. Doc. 40-2 at pp. 5–6.

11 See R. Doc. 40-3.

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

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

expenses.12

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

general causation report (“Report”) and testimony of Dr. Jerald Cook13 as well as a

unique specific causation report from Dr. Cook.14 Dr. Cook is a retired Navy physician

with expertise specifically as an occupational and environmental physician.15 Dr.

Cook’s general causation 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.16 Dr. Cook’s specific causation report purports to

establish a connection between Plaintiff’s exposure to weathered crude oil and

Plaintiff’s specific health symptoms.17 Dr. Cook explains that his specific causation

analysis “draws on the general causation analysis” provided in the version of his

general causation report offered here by Plaintiff.18

Defendants filed the instant Motion in limine and Motion for Summary

Judgment on August 22, 2022. In their Motion in limine, Defendants contend that

12 R. Doc. 1 at p. 40.

13 R. Doc. 40-5.

14 R. Doc. 40-4.

15 R. Doc. 40-5 at p. 8.

16 See 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.”).

17 R. Doc. 40-4 at pp. 4–5.

18 Id. at p. 4.

Dr. Cook should be excluded from testifying due to, inter alia, Dr. Cook’s failure to

identify the harmful level of exposure capable of causing Plaintiff’s particular injuries

for each chemical that Plaintiff alleges to have been exposed to. Defendants also

argue that Dr. Cook’s specific causation opinions are likewise unreliable and

inadmissible because Dr. Cook “never identifies precisely which chemicals caused

[Plaintiff’s] problems or the degree of exposure suffered by [Plaintiff].”19 Further,

Defendants contend that the Court need not address Dr. Cook’s specific causation

report if the Court finds that Dr. Cook’s general causation report is inadmissible.

Because Dr. Cook should be excluded from testifying, 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. Plaintiff opposes both Motions, arguing that Dr.

Cook’s general and specific causation opinions satisfy the Daubert standards for

reliability and relevancy and, therefore, that summary judgment is inappropriate.

II. LEGAL STANDARD

A. Motion in Limine

The district court has considerable discretion to admit or exclude expert

testimony under Fed. R. Evid. 702,20 and the burden rests with the party seeking to

present the testimony to show that the requirements of Rule 702 are met.21 Rule 702

19 R. Doc. 40-1 at p. 4.

20 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39 (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).

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

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.22

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.23 “To be admissible under Rule

702, the court must find that the evidence is both relevant and reliable.”24 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.25 The purpose of the reliability requirement is to exclude

expert testimony based merely on subjective belief or unsupported speculation.26

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

22 Fed. R. Evid. 702; Tajonera, 2016 WL 3180776, at *8.

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

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

24 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)).

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

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

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.”27 To prove reliability, the proponent of the expert testimony must

present some objective, independent validation of the expert’s methodology.28 The

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

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

expert in the relevant field.”29

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.”30 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.”31 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.”32 Instead,

27 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).

28 Recif Res., LLC, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536

(5th Cir. 2013)).

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

194 (5th Cir. 2006).

30 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).

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

(citations omitted).

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

omitted).

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

the nonmoving party.33

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.”34 The

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

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.”35 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.36 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.’”37

III. ANALYSIS

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

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

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

35 Id. at 1265.

36 See Celotex, 477 U.S. at 322–23.

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

response.”38 To prove causation, the B3 plaintiffs are required to provide reliable

expert testimony.39 “A plaintiff in such a case cannot expect lay fact-finders to

understand medical causation; expert testimony is thus required to establish

causation.”40

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

evidence in toxic tort cases.”41 First, a court must determine whether general

causation exists.42 “General causation is whether a substance is capable of causing a

particular injury or condition in the general population.”43 Second, if the court finds

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

determine whether there is admissible specific-causation evidence.”44 “[S]pecific

causation is whether a substance caused a particular individual’s injury.”45 If the

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

consider the issue of specific causation.46

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

level of exposure to a chemical” at which physical symptoms manifest.47 As explained

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

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

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

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

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

42 Id.

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

44 Id.

45 Id.

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

admissible general-causation evidence.”).

47 Allen, 102 F.3d at 199.

level of exposure.48 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, dosis sola facit venenum, or “the dose determines the poison.”49 This analysis

is also referred to in the Bradford Hill factors as the dose-response relationship.50

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.”51 Relatedly, the Fifth

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

plaintiff’s burden in a toxic tort case.”52 Plaintiffs must provide reliable expert

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

physical harm.53 Accordingly, failure to properly identify the level of exposure to a

48 R. Doc. 40-5 at p. 32; 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.”).

49 R. Doc. 40-5 at p. 32. Such knowledge dates back to at least the time of Paracelsus, the great

sixteenth-century Swiss philosopher and scientist, who remarked that “[s]olely the dose determines

that a thing is not a poison.” See Joseph Borzelleca, Paracelsus: Herald of Modern Toxicology, 53

Toxicological Scis. 2, 4 (1999).

50 R. Doc. 40-5 at p. 32.

51 R. Doc. 40-8 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.

52 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.”).

53 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).

particular chemical at which harmful effects occur necessarily renders a general

causation opinion unreliable and, thus, inadmissible.54

This Court has previously considered the June 21, 2022 version of Dr. Cook’s

Report offered here by Plaintiff, finding that the Report fails to meet the Daubert

standards for reliability and helpfulness to the trier of fact.55 For the same reasons

set forth in detail in that Order and Reasons, the Court determines that Plaintiff has

failed in his burden of establishing the reliability and relevance of his expert’s report

and finds it appropriate to grant Defendants’ Motion in limine to exclude Dr. Cook’s

Report. Plaintiff accordingly lacks expert testimony on general causation. Further,

the Court need not determine whether Dr. Cook’s specific causation report meets the

Daubert standards for relevance and reliability because Plaintiff has failed to provide

admissible general causation expert testimony.

Without expert testimony, which is required to prove general causation,56

Plaintiff has failed to demonstrate a genuine dispute of material fact regarding his

claims that his 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.”57 Thus, Defendants’ Motion

54 See Dawkins v. BP Expl. & Prod., Inc., No. CV 17-3533, 2022 WL 2315846, at *6 (E.D. La. June 28,

2022) (Vance, J.), reconsideration denied, No. CV 17-3533, 2022 WL 4355818 (E.D. La. Sept. 20, 2022)

(“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.)).

55 See Kaoui v. BP Expl. & Prod., Inc., No. CV 17-3313, R. Doc. 68 (E.D. La. Jan. 12, 2023) (Vitter, J.).

56 See, 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.”).

57 Williams, 2019 WL 6615504, at *11.

for Summary Judgment must be granted as Defendants are entitled to judgment as

a matter of law due to Plaintiff's failure to establish general causation.

IV. CONCLUSION

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

Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook®? is GRANTED.

IT IS FURTHER ORDERED that Defendants’ Motion for Summary

Judgment®? is GRANTED.

IT IS FURTHER ORDERED that Plaintiffs claims against Defendants are

DISMISSED with prejudice.

New Orleans, Louisiana, January 27, 2023.

eds & Vetta

WENDY B./VITTER

United States District Judge

58 R. Doc. 40.

59 R. Doc. 41.