The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAH MUNEER AKBAR BROWN CIVIL ACTION
VERSUS NO. 17-3641
BP EXPLORATION & PROD., INC., ET AL. SECTION A(2)
ORDER
The captioned case is a B3 lawsuit that was allotted to this section from Judge
Barbier’s MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the
Gulf of Mexico in 2010. The B3 pleading bundle includes personal injury claims due to
oil or chemical exposure during the disaster response. See In re Oil Spill by Oil Rig
“Deepwater Horizon” in Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL
6055613, at *1 (E.D. La. Apr. 1, 2021). B3 plaintiffs either opted out of the Medical
Settlement or were not members of the settlement class. Id. at *2 (discussing the
Medical Benefits Class Action Settlement Agreement in MDL 2179).
The plaintiff in the captioned B3 lawsuit was employed in the Deepwater Horizon
oil spill response effort and claims that exposure to crude oil and chemical dispersants
(the former being released by the oil spill itself and the latter being used in the cleanup
process) caused various personal injuries, some temporary and some long-term.
From the inception of the severed B3 cases, it has been understood that to
prevail “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.” In re Oil Spill by Oil Rig
“Deepwater Horizon,” 2021 WL 6055613, at *11. Because causation had proved to be
the critical element in the BELO cases, it was predicted to be the “make-or-break” issue
for many B3 cases as well. Id. (comparing and contrasting BELO cases and B3 cases).
A B3 plaintiff must prove that the legal cause of the claimed injury or illness is exposure
to oil or other chemicals used during the oil spill response. Id. The issue of causation
will require an individualized inquiry. Id.
The plaintiff’s burden with respect to causation in a toxic tort case involves proof
of both general causation and specific causation. See Knight v. Kirby Inland Marine,
Inc., 482 F.3d 347, 351 (5th Cir. 2007). General causation is whether a substance is
capable of causing a particular injury or condition in the general population. Id. at 351.
Specific causation is whether a substance caused a particular individual’s injury, i.e., the
plaintiff’s injury. Id. (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714
(Tex. 1997)). If the plaintiff’s case fails at the first-step of producing admissible evidence
as to general causation, then the issue of specific causation is rendered moot. See id.
(citing Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th Cir. 2004)).
In each of the hundreds of B3 cases that were reassigned from MDL 2179 to the
judges of this district, the plaintiff attempted to prove both general and specific
causation by relying on expert medical doctor, Jerald Cook, M.D. Dr. Cook’s expert
report, of which there have been several versions, has been described by another judge
as “an omnibus, non-case specific general causation expert report that has been used
by many B3 plaintiffs.” Backstrom v. BP Explor. & Prod., Inc., No. 17-3029, 2022 WL
2342390, at *1 (E.D. La. June 29, 2022) (Barbier, J.). Unfortunately, no version of Dr.
Cook’s report has been accepted in this district.
The motion in limine in the captioned case pertains to the plaintiff’s use of Dr.
Cook’s report, and the testimony that would derive from it at trial, as evidence of both
general and specific causation. Movants seek to exclude Dr. Cook’s opinions on various
grounds including the principles espoused in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). Again, Dr. Cook’s report has been rejected under Daubert by
the judges of this district. If Dr. Cook’s opinions are excluded from trial, then Defendants
argue that their motion for summary judgment must be granted because the plaintiff in
the case will have no expert medical causation evidence, which would constitute a
complete failure of proof on an essential element of the case.
This Court has carefully studied and considered the numerous decisions issued
by the other judges of this district who have determined that Dr. Cook’s opinions should
be excluded. For the same reasons given by Judges Vance, Barbier, Morgan, Milazzo,
and Ashe when they granted the defendants’ motions in limine directed at the same or
even “improved” versions of Dr. Cook’s report, the Court GRANTS Defendants’ motion
in limine in the captioned case. Consequently, Defendants’ motion for summary
judgment is likewise GRANTED.
The Court notes that the plaintiff has filed a spoliation motion in this matter but
the judges of this district, including this Court, have rejected in numerous other cases
the arguments raised in that motion.
Accordingly;
IT IS ORDERED that the Motion in Limine (Rec. Doc. 55) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (Rec.
Doc. 56) is GRANTED and that all of the claims of the plaintiff against all of the
defendants in the captioned case are dismissed with prejudice.
IT IS FURTHER ORDERED that the plaintiff's Motion for Admission of
Expert Opinions Because of Spoliation (Rec. Doc. 57) is DENIED.
June 15, 2023
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DGE JA (C. ZAI EY
ED STATESNSISTRICT JUDGE