Brown v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHONTE NICOLE BROWN CIVIL ACTION

VERSUS NO. 17- 03519

BP EXPLORATION & SECTION “R” (2)

PRODUCTION, INC., ET AL.

ORDER AND REASONS

Before the Court is BP Exploration & Production, Inc., BP America

Production Company, and BP p.l.c.’s, (collectively, the “BP parties”), motion

to exclude the testimony of plaintiff’s general causation expert, Dr. Jerald

Cook,1 and their motion for summary judgment.2 Plaintiff opposes both

motions.3 The Court also considers plaintiff’s motion to admit the expert

report of Dr. Cook as a sanction for defendants’ alleged spoliation,4 which

defendants oppose.5

1 R. Doc. 58. The remaining defendants, Halliburton Energy Services,

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

Transocean Offshore Deepwater Drilling, Inc. join the BP parties’

motion to exclude the testimony of Dr. Cook. R. Doc. 58 at 1 n.1.

2 R. Doc. 59. The remaining defendants also join the BP parties’ motion

for summary judgment. R. Doc. 59 at 1 n.1.

3 R. Docs. 62 & 61.

4 R. Doc. 60.

5 R. Doc. 70.

For the following reasons, the Court grants defendants’ motion to

exclude the testimony of Dr. Cook. The Court denies plaintiff’s motion to

admit Dr. Cook’s report as a sanction for defendants’ alleged spoliation.

Without Dr. Cook’s expert report, plaintiff cannot establish the general

causation element of her claim at trial. Accordingly, the Court also grants

defendants’ motion for summary judgment.

I. BACKGROUND

This case arises from plaintiff’s alleged exposure to toxic chemicals

following the Deepwater Horizon oil spill in the Gulf of Mexico. Plaintiff

alleges that she was exposed to crude oil and dispersants from her work as

an onshore cleanup worker.6 Plaintiff represents that this exposure has

resulted in the following health problems: blisters, skin rash/lesions,

dermatitis, impetigo, eczema, prurigo, inflammation, acne, hives, dry skin,

boils, itching, pharyngitis, sinusitis, rhinitis, cough, nasal

congestion/discharge, decrease sense of smell, sore throat, headache, joint

pain, brain fog, depression, fatigue, weakness, eye irritation, chest pain,

shortness of breath, nausea, stomach cramps, dizziness, fainting.7

6 R. Doc. 59-2 at 3-5.

7 R. Doc. 59-3 at 1-2.

Plaintiff’s case was originally part of the multidistrict litigation

(“MDL”) pending before Judge Carl J. Barbier. Her case was severed from

the MDL as one of the “B3” cases for plaintiffs who either opted out of, or

were excluded from, the Deepwater Horizon Medical Benefits Class Action

Settlement Agreement.8 Plaintiff opted out of the settlement.9 After

plaintiff’s case was severed, it was reallocated to this Court. Plaintiff asserts

claims for general maritime negligence, negligence per se, and gross

negligence against the defendants as a result of the oil spill and its cleanup.10

To demonstrate that exposure to crude oil, weathered oil, and

dispersants can cause the symptoms plaintiff alleges in her complaint, she

offers the testimony of Dr. Jerald Cook, an occupational and environmental

physician.11 Dr. Cook is plaintiff’s sole expert offering an opinion on general

causation. In his report dated May 31, 2022, Dr. Cook utilizes a “general

causation approach to determine if some of the frequently reported health

complaints could indeed be from the result of exposures sustained in

performing [oil spill] cleanup work.”12

8 In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mex., on

Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12 (E.D.

La. Apr. 1, 2021).

9 R. Doc. 1-1 at 2.

10 R. Doc. 29 ¶¶ 19-49.

11 R. Doc. 58-4 (Cook Report).

12 Id. at 12.

The BP parties contend that Dr. Cook’s expert report should be

excluded on the grounds that that it is unreliable and unhelpful.13

Defendants also move for summary judgment, asserting that if Dr. Cook’s

general causation opinion is excluded, plaintiff is unable to carry her burden

on causation.14 Plaintiff opposes both motions.15 Plaintiff contends that

defendants’ failure to record quantitative exposure data during the oil spill

response amounts to spoliation, and seeks the admission of Dr. Cook’s report

as a sanction.16 Defendants oppose plaintiff’s motion.17

The Court considers the parties’ arguments below.

II. DEFENDANTS’ MOTION TO EXCLUDE DR. COOK’S

TESTIMONY

A. Legal Standard

The district court has considerable discretion to admit or exclude

expert testimony under Federal Rule of Evidence 702. 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). Rule 702 provides that an expert witness

13 R. Doc. 58.

14 R. Docs. 59 & 59-1 at 1-2, 14.

15 R. Docs. 62 & 61.

16 R. Doc. 60.

17 R. Doc. 70.

“qualified . . . by knowledge, skill, experience, training, or education may

testify” if:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence

or 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.

Fed. R. Evid. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), the 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.’” Metrejean v. REC Marine

Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La. Sept. 21,

2009) (quoting Daubert, 509 U.S. at 589). This gatekeeping function applies

to all forms of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S.

137, 147 (1999).

The Court’s gatekeeping function consists of a two-part inquiry into

reliability and relevance. First, the Court must determine whether the

proffered expert testimony is reliable. The party offering the testimony bears

the burden of establishing its reliability by a preponderance of the evidence.

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

reliability inquiry requires the Court to assess whether the expert’s reasoning

and methodology underlying the testimony are valid. See Daubert, 509 U.S.

at 593. “[F]undamentally unsupported” opinions “offer[] no expert

assistance to the [trier of fact]” and should be excluded. Guile v. United

States, 422 F.3d 221, 227 (5th Cir. 2005). 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 the

relevant scientific community. Burleson v. Tex. Dep’t Crim. Just., 393 F.3d

577, 584 (5th Cir. 2004). The Supreme Court has emphasized that these

factors “do not constitute a ‘definitive checklist or test.’” Kumho, 526 U.S. at

150 (quoting Daubert, 509 U.S. at 593). Rather, courts “have considerable

leeway in deciding in a particular case how to go about determining whether

particular expert testimony is reliable.” Id. at 152.

“The reliability analysis applies to all aspects of an expert’s testimony:

the methodology, the facts underlying the expert’s opinion, the link between

the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc.,

482 F.3d 347, 355 (5th Cir. 2007) (quoting Heller v. Shaw Indus., Inc., 167

F.3d 146, 155 (3d Cir. 1999) (internal quotation marks omitted)). “Where the

expert’s opinion is based on insufficient information, the analysis is

unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th

Cir. 2009). Further, the Supreme Court has explained that “nothing in either

Daubert or the Federal Rules of Evidence requires a district court to admit

opinion evidence that is connected to existing data only by the ipse dixit of

the expert.” Joiner, 522 U.S. at 146. Rather, “[a] court may conclude that

there is simply too great an analytical gap between the data and the opinion

proffered.” Id.

Second, the Court must determine whether the expert’s reasoning or

methodology “fits” the facts of the case, and whether it will thereby assist the

trier of fact to understand the evidence. In other words, it must determine

whether it is relevant. See Daubert, 509 U.S. at 591. “Expert testimony

which does not relate to any issue in the case is not relevant and, ergo, non-

helpful.” Id. (quoting 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶

702[02] (1988)).

A district court’s gatekeeper function does not replace the traditional

adversary system or the role of the jury within this system. See id. at 596. As

noted in Daubert, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional

and appropriate means of attacking shaky but admissible evidence.” Id.

Thus, in determining the admissibility of expert testimony, the district court

must accord the proper deference to “the jury’s role as the proper arbiter of

disputes between conflicting opinions.” United States v. 14.38 Acres of

Land, More or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th

Cir. 1996).

B. Discussion

Plaintiff has the burden of “prov[ing] that the legal cause of her claimed

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

response.” In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex.,

on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1,

2021) (noting that B3 plaintiffs must prove that their alleged personal

injuries were “due to exposure to oil or other chemicals used during the oil

spill response”). The Fifth Circuit has developed a “two-step process in

examining the admissibility of causation evidence in toxic tort cases.”

Knight, 482 F.3d at 351. First, plaintiff must show general causation, which

means that she must show that “a substance is capable of causing a particular

injury or condition in the general population.” Id. Second, if the Court

concludes that plaintiff has produced admissible evidence on general

causation, it must then determine whether plaintiff has shown specific

causation, in other words, that “a substance caused [that] particular

[plaintiff’s] injury.” Id. If the Court finds that there is no admissible general

causation evidence, there is “no need to consider” specific causation. Id.

(citing Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th Cir. 2004)).

At issue here is whether plaintiff has produced admissible general

causation evidence. To prove that exposure to the chemicals in oil and

dispersants can cause the medical conditions plaintiff alleges, she offers the

testimony of an environmental toxicologist, Dr. Cook. Dr. Cook asserts that

his report is “based on the scientific methods used in the field of

environmental toxicology.”18 More specifically, he states that his “causation

analysis regarding health effects of oil spill exposures [] draw[s] on the

process of evaluating epidemiology studies and the work from established

expert groups similar to the Surgeon General’s Advisory Committee to make

a more likely than not conclusion.”19

The Fifth Circuit has held that epidemiology provides the best evidence

of causation in a toxic tort case. See Brock v. Merrell Dow Pharms., Inc.,

874 F.2d 307, 311 (5th Cir. 1989). That is not to say that epidemiologic

18 R. Doc. 58-4 at 6 (Cook Report).

19 Id. at 16.

evidence “is a necessary element in all toxic tort cases,” but “it is certainly a

very important element.” Id. at 313. As explained by the Fifth Circuit:

Epidemiology attempts to define a relationship between a

disease and a factor suspected of causing it . . . . To define that

relationship, the epidemiologist examines the general

population, comparing the incidence of the disease among those

people exposed to the factor in question to those not exposed.

The epidemiologist then uses statistical methods and reasoning

to allow her to draw a biological inference between the factor

being studied and the disease’s etiology.

Id. at 311.

When, as here, a review of epidemiological studies forms the basis of

an expert opinion, the essential first step requires the expert to identify an

association. An association occurs when “two events (e.g., exposure to a

chemical agent and development of disease) . . . occur more frequently

together than one would expect by chance.” Fed. Judicial Ctr., Reference

Manual on Scientific Evidence, 552 n.7 (3d ed. 2011) [hereinafter Reference

Manual]. An association, by itself, is not equivalent to a finding of causation.

Id. at 552. Unlike an association, “[c]ausation is used to describe the

association between two events when one event is a necessary link in a chain

of events that results in the effect.” Id. at 552 n.7. The Reference Manual

indicates that “[a]ssessing whether an association is causal requires an

understanding of the strengths and weaknesses of a study’s design and

implementation, as well as a judgment about how the study’s findings fit with

other scientific knowledge.” Id. at 553. Because “all studies have ‘flaws’ in

the sense of limitations that add uncertainty about the proper interpretation

of results,” the key questions in evaluating epidemiologic evidence “are the

extent to which a study’s limitations compromise its findings and permit

inferences about causation.” Id.

Once an association is found, “researchers consider whether the

association reflects a true cause-effect relationship,” that is, whether “an

increase in the incidence of disease among the exposed subjects would not

have occurred had they not been exposed to the agent.” Id. at 597-98.

Alternative explanations, “such as bias or confounding factors,” should first

be considered. Id. at 598. If alternative explanations are not present,

researchers apply the Bradford Hill criteria to evaluate whether an agent can

be a cause of a disease. Id. at 597; Wagoner v. Exxon Mobil Corp., 813 F.

Supp. 2d 771, 803 (E.D. La. 2011) (“[T]he set of criteria known as the

Bradford Hill criteria has been widely acknowledged as providing an

appropriate framework for assessing whether a causal relationship underlies

a statistically significant association between an agent and a disease.”). The

Bradford Hill factors include: (1) temporal relationship; (2) strength of the

association; (3) dose-response relationship; (4) replication of findings;

(5) biological plausibility; (6) consideration of alternative explanations;

(7) cessation of exposure; (8) specificity of the association; and

(9) consistency with other knowledge. Reference Manual at 600. These

factors are not rigidly applied in a general causation analysis, but instead

provide guidance for an expert “[d]rawing causal inferences after finding an

association.” Id.

Under Daubert, “courts must carefully analyze the studies on which

experts rely for their opinions before admitting their testimony.” Knight,

482 F.3d at 355; Wagoner, 813 F. Supp. 2d at 799 (“Whether epidemiological

studies support an expert’s opinion on the question of general causation in a

toxic tort case is critical to determining the reliability of the opinion.”).

Courts “may exclude expert testimony based on epidemiological studies

where the studies are insufficient, whether considered individually or

collectively, to support the expert’s causation opinion.” Baker v. Chevron

USA, Inc., 680 F. Supp. 2d 865, 875 (S.D. Ohio 2010) (citing Joiner, 522 U.S.

at 156-57). But a court cannot exclude expert testimony just because it

disagrees with the expert’s conclusions, although the Supreme Court has

recognized that “conclusions and methodology are not entirely distinct from

one another.” Joiner, 522 U.S. at 146.

With the above standards in mind, the Court examines Dr. Cook’s

general causation report. As noted by another section of this Court, “Cook

issued an omnibus, non-case specific general causation expert report that

has been used by many B3 plaintiffs.” Street v. BP Expl. & Prod. Inc., No.

17-3619, 2022 WL 1811144, at *2 (E.D. La. June 2, 2022). Further, the Court

notes that plaintiff relies on the May 31, 2022, version of Dr. Cook’s report

and not on the June 21, 2022, version, which plaintiff’s counsel represented

was a “substantially improved” version of the report. Patton v. BP Expl. &

Prod., Inc., No. 17-4473, 2022 WL 4104505, at *6 (E.D. La. Sept. 8, 2022).

Dr. Cook’s report is divided into five chapters. The first chapter outlines Dr.

Cook’s qualifications, which are not challenged in this case.20 The second

chapter provides an overview of the Deepwater Horizon oil spill.21 The third

chapter describes Dr. Cook’s methodology, the first step of which involved

his “review and analy[sis]” of the “available scientific literature to determine

the strength of an association between environmental exposure and a health

effect.”22 After reviewing the literature, Dr. Cook asserts that he selected the

epidemiological studies cited in his causation analysis “based on the quality

of the study and study design.”23

20 Id. at 6.

21 Id. at 7-11.

22 Id. at 17.

23 Id. at 19.

Chapter four of Dr. Cook’s report details prior studies on the health

effects associated with oil spills.24 This section first provides “summaries of

studies that evaluate health effects that may be associated with exposures

from oil spill response and cleanup work” in past oil spills.25 It then discusses

the findings and shortcomings of three studies on the Deepwater Horizon

oil spill: (1) the National Institute for Occupational Safety and Health’s

(“NIOSH”) Health Hazard Evaluations, (2) the Deepwater Horizon oil spill

Coast Guard cohort study, and (3) the Gulf Long-Term Follow-Up study

(“GuLF STUDY”).26 Chapter five presents Dr. Cook’s conclusions on general

causation for four categories of health conditions: (1) respiratory conditions,

(2) dermal conditions, (3) ocular conditions, and (4) cancers.27 Specifically,

he reaches the following conclusions:

• Oil response and cleanup workers have reported acute

symptoms of coughing; shortness of breath; wheezing;

tightness in chest; and burning in nose, throat, and lungs.

. . . Some individuals have prolonged effects from these

exposures, and can develop chronic respiratory conditions

. . . . These conditions include chronic rhinitis, chronic

sinusitis, allergic rhinitis, chronic obstructive pulmonary

disease (COPD), bronchitis, asthma or reactive airway

disease . . . . General causation analysis indicates that

these acute and chronic respiratory conditions can occur

24 Id. at 52-86.

25 Id. at 53.

26 Id. at 56-86.

27 Id. at 87.

in individuals exposed to crude oil, including weathered

crude oil, during oil spill response and cleanup work.28

• Chemical irritation would be the most common problem

with workers, particularly for acute symptoms that occur

during or shortly after exposure. These can be described as

skin irritation, skin rash, or skin itching. Dermatitis may

also occur following exposure to chemicals, such as crude

oil, weathered crude oil, or dispersants. General causation

analysis indicates that these acute and chronic [dermal]

conditions can occur in individuals exposed to crude oil,

including weathered crude oil, during oil spill response

and cleanup work.29

• Chemical irritation would be the most common problem

with workers, particularly for acute symptoms . . . . These

can be described as acute eye burning, acute eye irritation,

and acute conjunctivitis. Chronic conditions following

exposure can occur in a smaller subset of individuals who

experience chronic inflammation affecting their eyes. The

evidence available at this time does indicate that exposure

to crude oil, including weathered crude oil, can result in

acute and chronic eye symptoms. The medical problems

most likely from these exposures are acute conjunctivitis,

chronic conjunctivitis, and dry eye disease. General

causation analysis indicates that these acute and chronic

ocular conditions can occur in individuals exposed to

crude oil, including weathered crude oil, during oil spill

response and cleanup work.30

Based on Dr. Cook’s report, defendants argue that plaintiff is unable to

prove general causation with relevant and reliable expert testimony. They

contend that Dr. Cook’s general causation report is unreliable because he

28 Id. at 103-104 (emphasis added).

29 Id. at 109 (emphasis added).

30 Id. at 116 (emphasis added).

fails to: (1) identify the harmful dose of exposure of any particular chemical

to which plaintiff was exposed that is necessary to cause the plaintiff’s

conditions; (2) identify which chemicals can cause which conditions;

(3) verify plaintiff’s diagnoses; and (4) follow the accepted methodology for

analyzing epidemiology.31 Defendants also note that this Court and others

in this district have excluded this version of Dr. Cook’s report for similar

reasons.32

The Court first addresses defendants’ contention that Dr. Cook’s report

is unreliable and cannot establish general causation because it does not

identify a harmful level of exposure to a specific chemical to which plaintiff

was exposed.33 The Court begins with this objection because “[s]cientific

knowledge of the harmful level of exposure to a chemical” is considered “a

minimum fact[] necessary to sustain the plaintiff’s burden in a toxic tort

31 R. Doc. 58-1 at 6-20.

32 This Court excluded the May 31, 2022 Cook report in Pettaway v. BP

Expl. & Prod., No. 17-3599, 2022 WL 3369997 (Aug. 16, 2022). Other

sections of this court have done the same. See, e.g., Miller v. BP Expl. &

Prod., No. 17-4444, 2022 WL 4353573 (E.D. La. Sept. 15, 2022) (Barbier,

J.); Fairley v. BP Expl. & Prod., No. 17-3988, 2022 WL 16694090, at n.

7 (E.D. La. Nov. 3, 2022) (Ashe, J.); Booth v. BP Expl. & Prod., No. 17-

3053, 2022 WL 16529523 (E.D. La. Oct. 28, 2022) (Milazzo, J.); Baggett

v. BP Expl. & Prod., No. 17- 3030, 2022 WL 4242521 (E.D. La. Sept. 13,

2022) (Guidry, J.); Terrebonne v. BP Expl. & Prod., No. 17-4549, 2022

WL 13928107 (E.D. La. Oct. 24, 2022) (Zainey, J.); McDougle v. BP Expl.

& Prod., No. 17-3386, 2023 WL 315942, at *5 (E.D. La. Jan. 19, 2023)

(Vitter, J.).

33 R. Doc. 58-1 at 7-13.

case.” Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).

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. Williams v. BP Expl. &

Prod., Inc., No. 18-9753, 2019 WL 6615504, at *8 (E.D. La. Dec. 5, 2019)

(citing Knight, 482 F.3d at 351); Lee v. BP Expl. & Prod., Inc., No. 18-10381,

2020 WL 6106889, at *4 (E.D. La. Sept. 29, 2020) (“[D]istrict courts within

the Fifth Circuit have likewise required toxic tort plaintiffs to define ‘the level

of exposure necessary to produce effects’ in order to establish general

causation.”); see also Seaman v. Seacor Marine L.L.C., 326 F. App’x 721,

726-27 (5th Cir. 2009) (per curiam) (holding that “[w]ithout any facts that

would establish the allegedly harmful level of exposure . . . Dr. Prellop’s

opinion regarding diesel exhaust does not establish general causation”).

Here, the Court finds that Dr. Cook’s failure to identify the level of

exposure to a relevant chemical that can cause the conditions asserted in

plaintiff’s complaint renders his opinion unreliable, unhelpful, and incapable

of establishing general causation.

Turning first to reliability, Dr. Cook makes clear in his report that a

foundation of toxicology is that “dose determines the poison.”34 Because of

this maxim, Dr. Cook explains that “[t]oxicologists study chemicals for the

lowest levels that can cause adverse health effects . . . [which] requires

sophisticated studies that can control the low dose while accurately

measuring the effect of interest.”35 The AMA Guide also emphasizes the

importance of determining the dose-response relationship. Specifically, the

AMA Guide states that “the most critical phase of the hazard evaluation

process” is to “determine whether the estimated dose was sufficient to

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

question.”36 It additionally cautions that “[i]f exposure-response and dose-

response considerations are disregarded, then misinterpretations,

misunderstandings, erroneous judgments, and inappropriate actions

occur.”37

The closest Dr. Cook’s report comes to identifying a harmful level of

exposure that can trigger specific health conditions is his consideration of

the Bradford Hill factor of dose-response. But even in the sections of his

34 R. Doc. 58-4 at 27 (Cook Report).

35 Id.

36 R. Doc. 58-6 at 6-7.

37 Id. at 7.

report that are dedicated to the dose-response relationship and exposure, Dr.

Cook still fails to identify a harmful dose of any chemical to which plaintiff

was allegedly exposed. Further, he fails to even specify which constituent

chemicals within “crude oil” and “weathered oil” he is purportedly analyzing

for a dose-response relationship. Instead, in the “dose-response

relationship” sections of his report, Dr. Cook simply cites studies from both

the Deepwater Horizon oil spill, as well as previous oil spills, which generally

found a positive association between respondents who reported higher levels

of exposure to crude oil and the prevalence of various medical conditions.38

For example, Dr. Cook’s “dose-response relationship” analysis on

rhinosinusitis states in full:

Kim et al. (2013) showed a dose-response by assigning residents

to zones based on their distance from the oil spill. The

researchers found a dose-response effect in all reported health

effects, including rhinitis. Rusiecki et al. (2022) also found a

dose-response by statistical analysis, with the responders who

had higher reported exposures having a higher incidence of

chronic sinusitis.39

Notably, neither Dr. Cook, nor the two studies, specify a base level of

exposure that is necessary to cause rhinosinusitis. In the Kim et al., study,

the respondents were “residents living in the Taean coastal area . . . [that]

38 Id. at 90, 97, 105, 110.

39 Id. at 91.

had potential exposures to the oil spill from the Hebei Spirit tanker.”40 Given

the ambiguity in whether residents were even exposed to oil, the study does

not specify what level of exposure it concludes is associated with

rhinosinusitis. And in the Rusiecki et al., 2022 study, whether a participant

was a responder to the oil spill or not was used as a proxy for exposure, and

“[o]ther exposure assessments were not used to classify the responders as

exposed.”41 Again, any assessment of actual exposure, let alone the level of

exposure to a particular chemical, was not available. 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 of establishing

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

Seaman, 326 F. App’x at 727 (quoting Allen, 102 F.3d at 199).

Dr. Cook’s report does acknowledge that one of the limitations of the

studies he relies on is the “[l]imited availability of quantitative exposure

measures,” given the “[l]ikely low [level of] individual exposures.”42 For

example, he notes that the GuLF STUDY researchers represented that it was

“difficult to obtain accurate and comprehensive exposure information on

participants . . . because many of the assessments would have been made

40 Id. at 55 (emphasis added).

41 Id. at 68.

42 Id. at 78.

months after the workers were exposed,” and “many workers will have had

multiple exposures during the oil spill, . . . such that single exposure

measurements may not be sufficient to fully assess total exposure.”43 The

report also mentions that the health hazard evaluations conducted by the

National Institute of Occupational Safety and Health “utilized primarily

qualitative assessment techniques rather than the traditional industrial

hygiene exposure assessment and quantitative measurement methods.”44

Although Dr. Cook notes these limitations, he provides no explanation about

the “extent to which [these] limitations compromise [his] findings . . . about

causation.” Reference Manual at 553.

Given Dr. Cook’s failure to determine the relevant harmful level of

exposure to chemicals to which plaintiff was exposed for plaintiff’s specific

conditions, the Court finds that he lacks sufficient facts to provide a reliable

opinion on general causation. See Moore v. Ashland Chem. Inc., 151 F.3d

269, 277-78 (5th Cir. 1998) (holding that the “district court was entitled to

conclude” that an expert’s opinion was “inadequate under Daubert” when

the expert “had no information on the level of exposure necessary for a

person to sustain the [relevant] injuries”); McGill v. BP Expl. & Prod., Inc.,

43 Id. at 78-79.

44 Id. at 56.

830 F. App’x 430, 433 (5th Cir. 2020) (per curiam) (upholding the exclusion

of an expert’s opinion that was “not based on sufficient facts” and relied on

studies that failed to “provide conclusive findings on what exposure level of

Corexit is hazardous to humans”).

The Court also finds that Dr. Cook’s report is unhelpful to the factfinder

for many of the same reasons. Rule 702 requires that an expert’s opinion

must “help the trier of fact to understand the evidence or to determine a fact

in issue.” Fed. R. Evid. 702(a). “To be ‘helpful’ under Rule 702, the evidence

must possess validity when applied to the pertinent factual inquiry.” United

States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995). Courts should thus

exclude testimony that “fail[s] to provide a ‘relevant’ link with the facts at

issue.” Knight, 482 F.3d at 355.

Here, the Court finds that Dr. Cook’s opinion is unhelpful because of

his inability to link any specific chemical that plaintiff was allegedly exposed

to, at the level at which she was exposed, to the health conditions that she

purportedly experiences. Specifically, Dr. Cook’s conclusion that there is a

cause-and-effect relationship between the respiratory, ocular, and dermal

conditions he analyzed and “expos[ure] to crude oil, including weathered

crude oil,” is unhelpful without identifying the specific chemicals and

exposure levels capable of causing the specific conditions alleged by

plaintiff.45

Although Dr. Cook admits that there are thousands of chemicals in

crude oil, and that the chemical composition of weathered oil is highly

variable, he makes no attempt to identify which chemicals within crude oil

plaintiff was allegedly exposed to. Indeed, the majority of the studies he cites

similarly do not identify which chemicals respondents were exposed to, and

one study noted a concern about confounding variables, stating that some

respondents likely had unknown “petrochemical and other exposures not

due to their oil spill cleanup activities.”46 See Wagoner, 813 F. Supp. 2d at

802 (“It is true that in Joiner, the Supreme Court indicated that an expert

opinion on general causation should rely on studies that examine the specific

agent that is at issue.” (emphasis added) (citing Joiner, 522 U.S. at 145-46)).

In providing a general causation determination, Dr. Cook had to assess

whether “the types of chemicals [that plaintiff] w[as] exposed to can cause

[her] particular injuries in the general population.” Knight, 482 F.3d at 355.

Given that Dr. Cook’s report does not identify which specific chemicals

plaintiff was exposed to, the Court finds that his report is unhelpful to the

45 Id. at 116.

46 Id. at 78.

factfinder. See Knight, 482 F.3d at 355 (upholding the district court’s

exclusion of an expert because the expert relied on evidence that lacked “a

‘relevant’ link with the facts at issue”).

In reaching its decision, the Court rejects plaintiff’s efforts to defend

Dr. Cook’s failure to identify a harmful level of exposure to a specific

chemical. Plaintiff asserts that Dr. Cook’s analysis relies on peer-reviewed

scientific literature that is “the best, state of the art science on which to base

causation opinions related to BP Oil Spill worker exposures.”47 Plaintiff

attempts to bolster this position with an affidavit by Dr. Linda Birnbaum, the

former director of the National Institute of Environmental Health and

Safety, in which Dr. Birnbaum argues that it is not “plausible” to establish an

oil-spill responder’s quantitative exposure to a particular chemical at a given

level because of issues with data collection. As other sections of this court

have noted, Dr. Birnbaum’s affidavit “neither cures nor explains the

deficiencies in [Dr. Cook’s] report.” Griffin v. BP Expl. & Prod. Inc., 2023

WL 183894, at *5 (E.D. La. Jan. 13, 2023). “The question of an individual oil

responder’s exposure level is relevant to specific causation, not general

causation,” so “[t]he alleged impossibility of establishing a BP Oil Spill

responder’s quantitative exposure to a given chemical at a given level does

47 R. Doc. 62 at 1.

not affect Dr. 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.” Jenkins v. BP Expl. & Prod. Inc., 2023 WL 172044, at *2 (E.D.

La. Jan. 12, 2023) (quoting Walker v. BP Expl. & Prod. Inc., 2022 WL

17987118, at *8 (E.D. La. Dec. 29, 2022) (internal quotation marks omitted)).

Dr. Birnbaum’s representations about the difficulties scientists face

quantifying individual responders’ exposures are thus “irrelevant to the issue

of general causation in this case, which requires examination of the dose of

exposure known to cause harm in the general population.”48 Id.

Further, Dr. Cook states in his report that researchers associated with

the Deepwater Horizon oil spill studies that he relies on have expressed

concerns about the “accur[acy] and comprehensive[ness]” of respondents’

exposure responses.49 For example, the report notes that NIOSH

investigators “disregarded the self-reports of the workers,” determining that

48 Further, Dr. Birnbaum was not timely disclosed as an expert. Her

affidavit is thus procedurally improper. See Jenkins, 2023 WL 172044,

at *1 n.6.

49 R. Doc. 58-4 at 78-79 (Cook Report) (noting that “GuLF STUDY

researchers also noted that it would be difficult to obtain accurate and

comprehensive exposure information on participants in the GuLF

STUDY”).

the workers’ self-reported exposures had not been likely.50 Given the

concerns about the accuracy of this model from both plaintiff’s expert as well

as the investigators themselves, the Court does not find that, in this context,

Dr. Cook’s conclusions are reliable.

In sum, plaintiff, as the party offering the testimony of Dr. Cook, has

failed to meet her burden of establishing the reliability and relevance of Dr.

Cook’s report. Moore, 151 F.3d at 276. Given that Dr. Cook’s report is

unreliable and fails to provide the “minimal facts necessary” to establish

general causation in this case, see Allen, 102 F.3d at 199, the Court grants

defendants’ motion to exclude Dr. Cook’s testimony. See Seaman, 326 F.

App’x at 727-28 (upholding the district court’s exclusion of an expert’s

testimony that did “not come close to establishing either general or specific

causation” and “provide[d] no clue regarding what would be a harmful level

of Ferox exposure”).

III. PLAINTIFF’S SPOLIATION MOTION

A. Legal Standard

The spoliation of evidence doctrine concerns the intentional

destruction of evidence. Menges v. Cliffs Drilling Co., 2000 WL 765082, at

50 Id. at 63.

*1 (E.D. La. June 12, 2000) (first citing Vodusek v. Bayliner Marine Corp.,

71 F.3d 148, 156 (4th Cir. 1995); and then citing Schmid v. Milwaukee Elec.

Tool Corp., 13 F.3d 76, 78 (3d Cir.1994)). If a party intentionally destroys

evidence, the trial court may exercise its discretion to impose sanctions on

the responsible party. Id.

A party seeking sanctions for spoliation generally must show that

“(1) the party with control over the evidence had an obligation to preserve it

at the time it was destroyed; (2) the evidence was destroyed with a culpable

state of mind; and (3) the destroyed evidence was ‘relevant’ to the party’s

claim or defense such that a reasonable trier of fact could find that it would

support that claim or defense.” Coastal Bridge Co., LLC v. Heatec, Inc., 833

F. App’x 565, 574 (5th Cir. 2020) (citing Port of S. La. v. Tri-Parish Indus.,

927 F. Supp. 2d 332, 346 (E.D. La. 2013); Herster v. Bd. of Supervisors of

La. State Univ., 887 F.3d 177, 190 (5th Cir. 2018)).

B. Discussion

Plaintiff’s motion seeks the sanction of admission of Dr. Cook’s report.

Plaintiff asserts that this sanction is appropriate because “BP’s decision to

not record quantitative exposure data during the BP Oil Spill response has

deprived plaintiff of data which would quantitatively establish her

exposure.”51

Plaintiff’s spoliation motion suffers a number of deficiencies. First,

plaintiff’s contention that BP’s failure to conduct monitoring amounts to

spoliation is based on the faulty premise that BP was obligated to develop

evidence in anticipation of litigation. Fairley v. BP Expl. & Prod. Inc., No.

17-3988, 2022 WL 16731817, at *3 (E.D. La. Nov. 3, 2022). Spoliation is the

intentional destruction of evidence or failure to preserve evidence in one’s

possession. Menges, 2000 WL 765082, at *1 (first citing Vodusek v.

Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995); and then citing

Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994)). Here,

plaintiff has identified no evidence that defendants destroyed, and courts

have made clear that, as a general matter, a “failure to collect evidence [is]

not a failure to preserve evidence, and as such, [is] not spoliation.” See, e.g.,

Fairley, 2022 WL 16731817, at *3; see also De Los Santos v. Kroger Tex., LP,

2015 WL 3504878, at *6 n.4 (N.D. Tex. June 3, 2015) (holding that “the duty

to preserve evidence does not include the duty to create evidence”); United

States v. Greco, 734 F.3d 441, 447 (6th Cir. 2013) (“A failure to collect

evidence that may or may not have been available for collection is very

51 R. Doc. 60-1 at 1.

different from the intentional destruction of evidence that constitutes

spoliation.”).

Plaintiff asserts that BP was aware of risks to clean-up workers’ heath,

knew that biological monitoring was useful, and received suggestions to

conduct monitoring, but “suggestions and proposals do not equate to an

affirmative duty.” Fairley, 2022 WL 16731817, at *4 (denying plaintiff’s

spoliation motion premised on BP’s alleged failure to collect data related to

the oil spill cleanup). As other sections of this court have observed, plaintiff

identifies “no source (statute, rule, or other dictate) imposing a duty on BP

to conduct such monitoring and, by suggesting that monitoring was

necessary to create evidence of exposure, . . . concedes that no such evidence

ever existed for BP to preserve.” Jenkins, 2023 WL 172044, at *1.

Further, the remedy plaintiff seeks—admission of Dr. Cook’s expert

opinion despite its numerous deficiencies—is unwarranted. Putting aside

that plaintiff has not shown sanctionable conduct by BP, Dr. Cook’s report is

flawed in ways unrelated to BP’s decision not to conduct monitoring. Indeed,

“a general causation opinion is not dependent upon data from the incident

at issue, but does require an explanation of whether the exposure to a

particular chemical is capable generally of causing certain health issues for

the general population.” Fairley, 2022 WL 16731817, at *4. Dr. Cook’s

failure to link any specific chemicals to the conditions allegedly suffered by

plaintiff prevents the admission of Cook’s opinion. The Court thus denies

plaintiff’s motion to admit Dr. Cook’s report as a sanction “despite its failure

to meet the requirements of Fed. R. Evid. 702.” Francisco v. BP Expl. &

Prod. Inc., No. 17-3212, Doc. 70 (E.D. La. Feb. 16, 2023).

IV. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

A. Legal Standard

Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

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

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’

are insufficient to either support or defeat a motion for summary judgment.”

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting

10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute

of fact exists if the record taken as a whole could not lead a rational trier of

fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

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.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with 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.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

B. Discussion

In their motion for summary judgment, defendants contend that they

are entitled to summary judgment because plaintiff cannot establish either

general or specific causation.52 As discussed in Section II.B, supra, expert

testimony is required to establish general causation in toxic-tort cases like

this one. See McGill, 830 F. App’x at 433-34 (affirming summary judgment

where plaintiff lacked admissible expert testimony on general causation); see

also Macon v. BP Expl. & Prod. Inc., No. 17-3548, 2022 WL 1811135, at *7

(E.D. La. June 2, 2022) (dismissing plaintiff’s claims “[b]ecause expert

52 R. Doc. 59.

testimony is required on [general causation]”). Here, the Court has excluded

testimony from plaintiff’s only expert offering an opinion on general

causation.

In her opposition to defendants’ motion, plaintiff notes that other

sections of this court have denied summary judgment in cases in which B3

plaintiffs have brought claims premised on transient or temporary

symptoms.53 See Stephens v. BP Expl. Prod. Inc., 2022 WL 1642136 (E.D.

La. May 24, 2022); Wallace v. BP Expl. & Prod. Inc., 2022 WL 1642166 (E.D.

La. May 24, 2022); Turner v. BP Expl. & Prod. Inc., 2022 WL 1642142 (E.D.

La. May 24, 2022); Walker v. BP Expl. & Prod. Inc., No. 17-3012, R. Doc. 69

(E.D. La. June 15, 2022). But those summary judgment motions were

premised on a lack of expert testimony on specific causation. The defendants

did not challenge the admissibility of Dr. Cook’s general causation opinions

in those cases. Here, the Court need not “sort [plaintiff’s] claimed symptoms

into those requiring expert testimony on specific causation and those that do

not because [plaintiff] cannot provide the required expert testimony on

general causation once Cook’s report is excluded.” Johns v. BP Expl. & Prod.

Inc., 2022 WL 1811088, at *3 n.44 (E.D. La. June 2, 2022).

53 R. Doc. 62 at 4-7.

Given that plaintiff cannot prove a necessary element of her claims

against defendants, her claims must be dismissed. See Williams, 2019 WL

6615504, at *11 (“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.”); see also McGill, 830 F. App’x at 434

(upholding the district court’s grant of summary judgment given that the

plaintiff did “not put forward any non-speculative evidence that Corexit and

oil exposure cause the types of illnesses he suffer[ed] from”). Accordingly,

the Court grants defendants’ motion for summary judgment.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS the BP parties’ motion

to exclude the testimony of Dr. Cook. The Court DENIES plaintiff's motion

to admit Dr. Cook’s report as a sanction for defendants’ alleged spoliation.

The Court also GRANTS the BP parties’ motion for summary judgment.

Plaintiff's claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this _27th_ day of June, 2023.

bern Varner

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

34