The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONNA BROWN CIVIL ACTION
VERSUS NO. 17-4141
BP EXPLORATION & PRODUCTION, SECTION: H
INC. ET AL.
ORDER AND REASONS
Before the Court is a Motion in Limine to Exclude the General Causation
Opinions of Plaintiff’s Expert, Dr. Jerald Cook (Doc. 53) and a Motion for
Summary Judgment Due to Plaintiff’s Inability to Prove Medical Causation
(Doc. 52), both filed by Defendants BP Exploration & Production, Inc.; BP
America Production Company; BP p.l.c.; Transocean Holdings, LLC;
Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.;
and Halliburton Energy Services, Inc. For the following reasons, these Motions
are GRANTED.
BACKGROUND
This case is one among the “B3 bundle” of cases arising out of the
Deepwater Horizon oil spill.1 This bundle comprises “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).”2 These cases were originally part of a
1 See In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
2 Id.
multidistrict litigation (“MDL”) pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but
the B3 plaintiffs either opted out of this agreement or were excluded from its
class definition.3 Subsequently, Judge Barbier severed the B3 cases from the
MDL to be reallocated among the judges of this Court.4 This case was
reassigned to Section H.
Plaintiff Donna Brown alleges continuous exposure to oil and
dispersants while working as a cleanup worker following the Deepwater
Horizon oil spill. Plaintiff claims to suffer from a host of medical conditions
because of the exposure, including respiratory, gastrointestinal, cardiovascular
and neurological issues. Plaintiff asserts claims under the general maritime
law of negligence, negligence per se, and gross negligence with respect to the
spill and its cleanup.
Now before the Court are Defendants’ Motion in Limine to Exclude the
General Causation Opinions Testimony of Plaintiff’s Expert and their Motion
for Summary Judgment Due to Plaintiff’s Inability to Prove Medical
Causation. In the Motion in Limine, Defendants argue that Plaintiff’s expert
on medical causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit’s
requirements for an admissible general causation opinion in toxic tort cases
and should therefore be excluded as unreliable. In the Motion for Summary
Judgment, Defendants argue that assuming their Motion in Limine is granted,
Plaintiff lacks expert testimony on general causation and therefore fails to
present a genuine issue of material fact as to whether her injuries were caused
by exposure to oil and dispersants. Plaintiff opposes.
3 Id. at 2 n.3.
4 Id. at 7–8.
LEGAL STANDARDS
I. Daubert Motion
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. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S.
Supreme Court held that Rule 702 “requires the district court to act as a
gatekeeper to ensure that ‘any and all scientific testimony or evidence
admitted is not only relevant, but reliable.’”5 All types of expert testimony are
subject to this gatekeeping.6 The party offering the expert testimony bears the
burden of proving its reliability and relevance by a preponderance of the
evidence.7
The reliability of expert testimony “is determined by assessing whether
the reasoning or methodology underlying the testimony is scientifically valid.”8
The Court may consider several nonexclusive factors in determining reliability,
including: (1) whether the technique has been tested, (2) whether the technique
has been subject 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
5 Metrejean v. REC Marine Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La.
Sept. 21, 2009) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)).
6 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
7 See Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
8 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007).
the relevant scientific community.9 Granted, the reliability analysis is a
flexible one and “not every Daubert factor will be applicable in every
situation.”10 As the gatekeeper of expert testimony, this Court enjoys broad
discretion in determining admissibility.11
II. Motion for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”12 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”13
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in her favor.14 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.”15 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.”16 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
9 See Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).
10 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).
11 See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
12 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
15 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
16 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
sustain a finding in favor of the non-movant on all issues as to which the non-
movant would bear the burden of proof at trial.”17 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.”18 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”19
LAW AND ANALYSIS
“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.”20 “The
plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation.”21 “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.”22 On this topic, Dr. Cook produced a report dated June 21,
2022 and entitled “Health Effects Among Deepwater Horizon Oil Spill
Response and Cleanup Workers: A Cause and Effect Analysis.”23 This report is
not unique to this case; another judge of this Court has described it as “an
omnibus, non-case specific general causation expert report that has been used
by many B3 plaintiffs.”24
17 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
18 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
19 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
20 In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010,
MDL NO. 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1, 2021).
21 Davis v. BP Expl. & Prod., Inc., No. 17-4664, 2022 WL 2789027, at *1 (E.D. La. July 15,
2022).
22 Knight, 482 F.3d at 351 (internal quotation marks omitted).
23 See Doc. 53-4.
24 McIntosh v. BP Expl. & Prod., Inc., No. 13-1020, 2022 WL 2342480, at *1 (E.D. La. June
29, 2022).
Nine sections of the Eastern District of Louisiana, including this one,
have excluded Dr. Cook’s June report or its earlier versions, holding generally
that Cook’s opinions were unreliable and unhelpful where he failed to identify
the level of exposure to a relevant chemical that can cause the conditions
asserted in the plaintiff’s complaint.25 Indeed, Plaintiff acknowledges that
“about two hundred of BP’s motions to exclude Dr. Cook’s general causation
opinions have been granted.”26 In light of this, she attempts to “take a different
tack” and focus “on the scientific robustness of Dr. Cook’s reliance literature
and the fact that there are no alternative studies on which he could properly
rely to support his opinions.”27 She argues that it is not possible to establish
her quantitative exposure to a given chemical at a given level based on the data
that was collected after the oil spill and that Dr. Cook’s opinion relies on the
best literature available. These new arguments, however, “neither cure[] nor
explain[] the deficiencies of Cook’s report.”28 Judge Africk has explained that:
“[T]he fundamental question in [the] general causation inquiry is
whether the chemicals, weathered oil, and dispersants to which
[plaintiff] alleges he was exposed can cause the conditions he
alleges.” Bass v. BP Expl. & Prod., No. 17-3037, 2022 WL 2986276,
25 See, e.g., Johns v. BP Expl. & Prod. Inc., No. 17-3304, 2022 WL 1811088 (E.D. La. June 2,
2022) (Ashe, J.); Coleman v. BP Expl. & Prod., Inc., No. 17-4158, 2022 WL 2314400 (E.D. La.
June 28, 2022) (Vance, J.); McIntosh, 2022 WL 2342480 (Barbier, J.); Harrison v. BP Expl. &
Prod. Inc., No. 17-4346, 2022 WL 2390733 (E.D. La. July 1, 2022) (Morgan, J.); Davis, 2022
WL 2789027 (Zainey, J.); Turner v. BP Expl. & Prod. Inc., No. CV 17-3225, 2022 WL 2967441
(E.D. La. July 27, 2022) (Africk, J.); Reed v. BP Expl. & Prod., Inc., No. CV 17-3603, 2022 WL
3099925 (E.D. La. Aug. 4, 2022) (Milazzo, J.); Moore v. BP Expl. & Prod., Inc., No. CV 17-
4456, 2022 WL 3594631, at *10 (E.D. La. Aug. 23, 2022) (Vance, J.); Cantillo v. BP Expl. &
Prod., No. 17-3226, R. Doc. 35 (E.D. La. Aug. 5, 2022) (Barbier, J.); Seay v. BP Expl. & Prod.,
No. 17-4244, R. Doc. 53 (E.D. La. Aug. 5, 2022) (Barbier, J.); Yarbrough v. BP Expl. & Prod.,
No. 17-4292, R. Doc. 53 (E.D. La. Aug. 5, 2022) (Barbier, J.); Baggett v. BP Expl. & Prod., No.
17-3030, 2022 WL 4242521 (E.D. La. Sept. 13, 2022) (Guidry, J.); Hill v. BP Expl. & Prod.,
No. 17-3252, 2022 WL 4534747 (E.D. La. Sept. 28, 2022) (Vitter, J.).
26 Doc. 56.
27 Id.
28 Walker v. BP Expl. & Prod. Inc., No. CV 17-3012, 2022 WL 17987118, at *8 (E.D. La. Dec.
29, 2022).
at *4 (E.D. La. July 28, 2022) (Morgan, J.). Cook’s report fails “to
identify the level of exposure to a relevant chemical that can cause
the conditions asserted in plaintiff's complaint” and therefore
cannot show general causation. Grant, 2022 WL 2467682, at *7.
The alleged impossibility of “establish[ing] a BP Oil Spill
responder’s quantitative exposure to a given chemical at a given
level” does not affect Cook’s ability to “consult 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.” Dawkins
v. BP Expl. & Prod., No. 17-3533, 2022 WL 2315846, at *10 (E.D.
La. June 28, 2022) (Vance, J.).29
Accordingly, for the same reasons already articulated by Judges Africk, Ashe,
Barbier, Guidry, Morgan, Vance, Vitter, and Zainey, the Court grants
Defendants’ Motion in Limine. Because Plaintiff cannot prove general
causation, the Court also grants Defendants’ Motion for Summary Judgment.
CONCLUSION
For the foregoing reasons, Defendants’ Motion in Limine and Motion for
Summary Judgment are GRANTED.
IT IS ORDERED that all of Plaintiffs claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 2nd day of February, 20238.
g TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
29 Id,