The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ARLENE HINTON CIVIL ACTION
VERSUS NO. 17-4357
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
DANIEL HATCHER CIVIL ACTION
VERSUS NO. 17-3179
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
RAY SYLVESTER BROWN CIVIL ACTION
VERSUS NO. 17-3099
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
CHERYL LAKISHA FIELDER CIVIL ACTION
VERSUS NO. 17-3193
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
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AMANDA VICTORIA UPCHURCH CIVIL ACTION
VERSUS NO. 17-3413
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
WILLIAM SHEPHARD FAST CIVIL ACTION
VERSUS NO. 17-3989
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
RICHARD TERRELL MAGEE CIVIL ACTION
VERSUS NO. 17-3549
BP EXPLORATION & SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
ORDER AND REASONS
Before the Court are nearly identical motions submitted in seven
different cases. 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. (“collectively BP”) filed Motions in Limine to
Exclude the General Causation Opinions of Plaintiffs’ Expert, Dr. Jerald Cook
and Motions for Summary Judgment Due to Plaintiff’s Inability to Prove
Medical Causation in each of these cases. In response, each of the Plaintiffs
2
has filed a motion entitled Motion for Admission of Plaintiffs’ Expert Opinions
Because of BP Defendants’ Spoliation of Evidence of Plaintiffs’ Exposure. For
the following reasons, Defendants’ Motions are GRANTED, and Plaintiffs’
Motions are DENIED.
BACKGROUND
These seven cases are 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
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 The above seven cases
were reassigned to Section H.
Plaintiffs Arlene Hinton, Daniel Hatcher, Ray Sylvester Brown, Cheryl
Lakisha Fielder, Amanda Victoria Johnson Upchurch, William Shepard Fast,
and Richard Terrell Magee each filed lawsuits against Defendants based on
their alleged exposure to toxic chemicals following the Deepwater Horizon oil
spill in the Gulf of Mexico. Each plaintiff was allegedly involved in cleanup or
recovery work after the oil spill, and each contends that his or her resulting
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.
3 Id. at 2 n.3.
4 Id. at 7–8.
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exposure to crude oil and dispersants caused a litany of health conditions.
Plaintiffs bring claims for general maritime negligence, negligence per se, and
gross negligence against Defendants.
Now before the Court in each of the above-captioned cases are
Defendants’ Motions in Limine to Exclude the General Causation Opinions
Testimony of Plaintiffs’ Expert and their Motions for Summary Judgment Due
to Plaintiff’s Inability to Prove Medical Causation.5 In each of the Motions in
Limine, Defendants argue that Plaintiffs’ 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 each of the Motions for Summary Judgment, Defendants
argue that assuming their Motions in Limine are granted, each of the Plaintiffs
lack expert testimony on general causation and therefore fail to present a
genuine issue of material fact as to whether his or her injuries were caused by
exposure to oil and dispersants. Also before the Court in each of the above-
captioned cases is Plaintiff’s motion entitled Motion for Admission of Plaintiffs’
Expert Opinions because of BP Defendants’ Spoliation of Evidence of Plaintiffs’
Exposure.6 In each of these motions, Plaintiffs ask the Court to allow Dr.
Cook’s expert testimony in light of Defendants’ failure to preserve evidence of
exposure to toxic chemicals by clean-up workers or perform biomonitoring and
5 Hinton v. BP Expl. & Prod., Inc., No. 17-4357, R. Docs. 50, 51; Hatcher v. BP Expl. & Prod.,
Inc. No., 17-3179, R. Docs. 39, 40; Brown v. BP Expl. & Prod., Inc., No. 17-3099, R. Docs. 59,
60; Fielder v. BP Expl. & Prod., Inc., No. 17-3193, R. Docs. 59, 60; Upchurch v. BP Expl. &
Prod., Inc., No. 17-3413, R. Docs. 60, 61; Fast v. BP Expl. & Prod., Inc., No. 17-3989, R. Docs.
55, 56; Magee v. BP Expl. & Prod., Inc., No. 17-3549, R. Docs. 59, 60.
6 Hinton, No. 17-4357, R. Doc. 54; Hatcher, No. 17-3179, R. Doc. 45; Brown, No. 17-
3099, R. Doc. 61; Fielder, No. 17-3193, R. Doc. 61; Upchurch, No. 17-3413, R. Doc. 62; Fast,
No. 17-4471, R. Doc. 58; Magee, No. 17-3549, R. Doc. 61.
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dermal monitoring of those workers. The Court will consider each motion in
turn.
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.’”7 All types of expert testimony are
subject to this gatekeeping.8 The party offering the expert testimony bears the
burden of proving its reliability and relevance by a preponderance of the
evidence.9
The reliability of expert testimony “is determined by assessing whether
the reasoning or methodology underlying the testimony is scientifically
valid.”10 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
7 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)).
8 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
9 See Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
10 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007).
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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.11 Granted, the
reliability analysis is a flexible one and “not every Daubert factor will be
applicable in every situation.”12 As the gatekeeper of expert testimony, this
Court enjoys broad discretion in determining admissibility.13
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.”14 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”15
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.16 “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.”17 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.”18 “In response to a
11 See Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).
12 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).
13 See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
14 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
16 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
17 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
18 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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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
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.”19 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.”20 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.”21
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.”22 “The
plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation.”23 “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.”24
On the topic of general causation, each Plaintiff has put forth a report
from Dr. Cook dated June 21, 2022, and entitled “Health Effects Among
Deepwater Horizon Oil Spill Response and Cleanup Workers: A Cause and
19 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
20 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)).
21 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
22 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).
23 Davis v. BP Expl. & Prod., Inc., No. 17-4664, 2022 WL 2789027, at *1 (E.D. La. July
15, 2022).
24 Knight, 482 F.3d at 351 (internal quotation marks omitted).
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Effect Analysis.”25 This report is not unique to these cases; 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.”26
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 Dr. Cook’s opinions are unreliable and unhelpful where he fails to identify
the level of exposure to a relevant chemical that can cause the conditions
asserted in the plaintiffs’ complaints.27 Indeed, in their oppositions, Plaintiffs
acknowledge that “about two hundred of BP’s motions to exclude Dr. Cook’s
25 Hinton, No. 17-4357, R. Doc. 50-4; Hatcher, No. 17-3179, R. Doc. 39-4; Brown, No.
17-3099, R. Doc. 59-4 Fielder, No. 17-3193, R. Doc. 59-4; Upchurch, No. 17-3413, R. Doc. 61-
4; Fast, No. 17-4471, R. Doc. 55-4; Magee, No. 17-3549, R. Doc. 59-4. The Court notes that the
plaintiffs in Hinton v. BP, No. 17-4357, and Hatcher v. BP, No. 17-3179, did not produce their
expert reports until after their expert report deadline had passed. However, this Court has
allowed the late disclosure and considers their expert reports for the purpose of these
motions. Accordingly, Defendants’ Motions for Summary Judgment based on the lack of
expert report in those cases are denied as moot. Hinton, No. 17-4357, R. Doc. 44; Hatcher,
No. 17-3179, R. Doc. 37.
26 McIntosh v. BP Expl. & Prod., Inc., No. 13-1020, 2022 WL 2342480, at *1 (E.D. La.
June 29, 2022).
27 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.); 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.); 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.);
Magee v. BP Expl. & Prod., No. 17-4399, R. Doc. 54 (E.D. La. Aug. 8, 2022) (Ashe, J.);
McMillan v. BP Expl. & Prod., No. 17-3396, R. Doc. 61 (E.D. La. Sept. 14, 2022) (Guidry, J.).
8
general causation opinions have been granted.”28 In light of this, they “take a
different tack” and focus their oppositions “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.”29 They argue that it is
not possible to establish a 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.”30 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,
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.).31
28 Hinton, No. 17-4357, R. Doc. 56; Hatcher, No. 17-3179, R. Doc. 47 Brown, No. 17-
3099, R. Doc. 63; Fielder, No. 17-3193, R. Doc. 63; Upchurch, No. 17-3413, R. Doc. 64; Fast,
No. 17-4471, R. Doc. 60; Magee, No. 17-3549, R. Doc. 63.
29 Hinton, No. 17-4357, R. Doc. 56; Hatcher, No. 17-3179, R. Doc. 47 Brown, No. 17-
3099, R. Doc. 63; Fielder, No. 17-3193, R. Doc. 63; Upchurch, No. 17-3413, R. Doc. 64; Fast,
No. 17-4471, R. Doc. 60; Magee, No. 17-3549, R. Doc. 63.
30 Walker v. BP Expl. & Prod. Inc., No. CV 17-3012, 2022 WL 17987118, at *8 (E.D.
La. Dec. 29, 2022) (J. Africk).
31 Id.
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Accordingly, this Court agrees that these new arguments do not alter the
outcome of Defendants’ Motions in Limine. For the same reasons already
articulated by Judges Africk, Ashe, Barbier, Guidry, Morgan, Vance, Vitter,
and Zainey, the Court grants Defendants’ Motions in Limine.
In response to Defendants’ Motions, each of the Plaintiffs has filed a
motion seeking admission of Dr. Cook’s report through a different
mechanism—as a sanction for spoliation. Plaintiffs each argue that
Defendants acted in bad faith when they chose not to record quantitative data
on the exposure of clean-up workers to specific chemicals and that the Court
should allow Plaintiffs to rely on Dr. Cook’s report as a sanction for that
spoliation. As previously explained, however, the lack of quantitative data
regarding the clean-up workers’ exposure to a given chemical at a given level
does not affect Dr. Cook’s ability to opine on whether a specific chemical is
“capable generally of causing certain health issues for the general
population.”32 Thus, his report “still fails to provide evidence of general
causation as is required by the Fifth Circuit for toxic tort cases.”33 “Put simply,
Dr. Cook’s report is flawed in ways unrelated to BP’s decision not to conduct
monitoring.”34 Accordingly, even assuming that Plaintiffs could prove that
Defendants spoliated evidence,35 Dr. Cook’s opinion remains unhelpful,
32 Id.; see Barkley v. BP Expl. & Prod. Inc., No. CV 13-1020, 2022 WL 3715438, at *1
(E.D. La. Aug. 5, 2022) (“[E]ven assuming that BP had an affirmative duty to conduct dermal
testing or biomonitoring after the oil spill, the lack of this information is not what renders
Dr. Cook’s expert report unreliable, unhelpful, and inadmissible.”).
33 Fairley v. BP Expl. & Prod. Inc., No. CV 17-3988, 2022 WL 16731817, at *4 (E.D.
La. Nov. 3, 2022) (J., Ashe).
34 Campbell v. B.P. Expl. & Prod., Inc., No. CV 17-3119, 2022 WL 17251115, at *12
(E.D. La. Nov. 28, 2022) (J., Vance).
35 Other sections of this Court have agreed that Plaintiffs have not shown any element
required to prove spoliation. Id.; Walker, 2022 WL 17987118, at *11; Fairley, 2022 WL
16731817, at *3.
10
unreliable, and inadmissible. Other sections of this Court have reached the
same result.°6 Plaintiffs’ Motions are therefore denied. Because Plaintiffs
cannot prove general causation, the Court also grants Defendants’ Motions for
Summary Judgment.
CONCLUSION
For the foregoing reasons, Defendants’ Motions in Limine and Motions
for Summary Judgment are GRANTED. Plaintiffs’ Motions are DENIED.
IT IS ORDERED that all of Plaintiffs’ claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 16th day of March, 20238.
TRICHE MILAZ
UNITED STATES DISTRICT JUDGE
86 Campbell, 2022 WL 17251118, at *12 (Dr. Cook’s report is flawed in ways unrelated
to BP’s decision not to conduct monitoring.”); Walker, 2022 WL 17987118, at *11 ([T]he flaws
in Cook’s general causation report are unrelated to defendants’ failure to perform dermal
monitoring of oil spill workers.”); Fairley, 2022 WL 16731817, at *3 (Finally, even if there
were evidence of spoliation, the proposed remedy — deeming Cook's opinions relevant — does
not solve the inherent problem in Cook’s report.”).
11