Adkins v. Marathon Petroleum Company LP

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRENT A. ADKINS,

Plaintiff,

Case No. 1:17-cv-643

v. JUDGE DOUGLAS R. COLE

MARATHON PETROLEUM

COMPANY LP,

Defendant.

OPINION AND ORDER

This cause comes before the Court on Plaintiff Brent A. Adkins’s and

Defendant Marathon Petroleum Company LP’s cross-Motions for Summary

Judgment and accompanying motions to limit the testimony from various potential

witnesses. For the reasons discussed below, the Court DENIES Adkins’s Motion for

Partial Summary Judgment (Docs. 130, 135). But the Court GRANTS Marathon

Petroleum Company LP’s Motion for Summary Judgment (Doc. 128) and

DISMISSES Adkins’s Second Amended Complaint (Doc. 18) WITH PREJUDICE.

Accordingly, the Court DENIES all other pending Motions AS MOOT.

BACKGROUND

A. Factual History

Plaintiff Brent Adkins worked for Defendant Marathon Petroleum Company

LP (Marathon) as a crew member on an inland river barge from 2008 to 2012. (Adkins

Dep., Doc. 119, #7805). Specifically, he worked as a tankerman in the loading and

unloading of vacuum gas oil (VGO), asphalt cement, and other oil-based substances.

(Pue Dep., Doc. 120, #8055). These substances emit hydrogen sulfide (H2S) fumes.

(Id.). Both parties agree H2S can have harmful, even deadly, effects when inhaled.

The parties do not agree about what amount or concentration of inhalation will cause

harm, what those harmful effects can look like, and whether Adkins’s present

symptoms are attributable to H2S. These disagreements are the crux of the case.

Adkins suffered from childhood asthma. (Id. at #8181). He was prescribed

medication but apparently stopped taking it. (Id.). Adkins now believes he only had

asthma “for a couple months” as a child, apparently assuming he grew out of it. (Doc.

119, #7840). That said, prior to his work for Marathon, doctors had prescribed Adkins

Advair and albuterol to help with his breathing. (Id. at #7835). He claims these

medications were to treat his seasonal allergies and bronchitis. (Id.). In addition,

while Adkins does not smoke, he suffers from obesity, which may affect his breathing.

(Doc. 52-2, #1868; Doc. 120, #8110).

Before Marathon hired him in 2008, Adkins underwent a pre-employment

physical examination. (Doc. 119, #7805). As part of the exam, a nurse tested Adkins’s

pulmonary function. (Id. at #7838–39). Adkins reported to the nurse he had a cold

that day. (Id.). Following the testing, the nurse attested in the report “[m]ild

restrictive pattern indicated.” (Doc. 119-10, #7956). Also during his pre-employment

screening, Adkins took a “functional capacity evaluation” to assess his ability to

perform the job. (Doc. 119, #7840). As part of that evaluation, he reported working in

environments that exposed him to dust and “cleaning chemicals.” (Doc. 52-2, #1854).

(Before and during his time working for Marathon, Adkins operated a window

cleaning business on his days off. (Doc. 119, #7800–01). Presumably, this is what

exposed him to “cleaning chemicals.”) Finally, he completed a respiratory

questionnaire, which asked if Adkins had any previous pulmonary or lung problems.

(Id. at #7840). Adkins answered “no” to both. (Id.). Based on these and other tests,

Marathon cleared Adkins for the job.

Adkins underwent a similar evaluation in 2010. (Id. at #7841). He once again

took a pulmonary function test. (Id.). Adkins remembers feeling “dizzy a little bit

during the test.” (Id.). Adkins reported to the nurse he had a history of bronchitis and

mild seasonal allergies, as well as having previously worked in environments that

exposed him to asbestos, tungsten/cobalt, and dust. (Id.; Doc. 52-4, #1876). But he

again did not disclose his past diagnosis of asthma. (Doc. 52-4, #1875). Physicians

cleared him to continue work. (Id. at #1877).

Although not explicitly disclosed during any physical with Marathon, Adkins

suffered an episode of tachycardia in 2011. (Doc. 119, #7832). Tachycardia is a rapid

and often irregular heart rhythm. As a result, a doctor (not affiliated with the

Marathon physicals) prescribed him Metoprolol, a beta blocker that Adkins claims

made him feel fatigued. (Id.).

Adkins underwent a third Marathon physical in 2012 around a month before

his service at the company ended. (Id. at #7843). This exam followed much the same

pattern as the prior two, except Adkins disclosed past diagnoses of asthma,

pneumonia, and also checked the box for heart arrhythmia (which generally refers to

an irregular heartbeat). (Doc. 119-12, #8009). The record is unclear whether Adkins

checked this box to refer to his tachycardia or for a different issue. In any event, an

accompanying pulmonary function overview report concluded he suffered

“[m]oderately severe restrictive pattern” in airflow. (Id. at #8012). Also during this

exam, Adkins disclosed for the first time that his work exposed him to H2S fumes.

(Id. at #8010).

Marathon knows its products can emit H2S fumes. It requires all company

personnel working near the products to wear personal H2S monitor “badges.” (Doc.

53-12, #2451). The badges alarm when detecting H2S at 10 parts per million (ppm).

(Id. at #2453). Marathon’s policy requires personnel to wear their badges near their

mouths to detect H2S capable of being inhaled. (Id. at #2452). If a badge alarms,

personnel must leave the area, notify a supervisor, and cease work until ordered

otherwise. (Id. at #2453). There is some ambiguity in the record around what the

OSHA regulatory limits and NIOSH guidance set as the occupational limit for short-

term exposure to H2S. Some citations suggest 15 ppm. (Doc. 53, #2146). Other places

in the record suggest between 20 ppm and 50 ppm. (Doc. 120, #8044). In any event,

all seemingly agree Marathon’s H2S badges alarm below the standard OSHA and

NIOSH short-term exposure limit.

The parties dispute whether Adkins’s badge ever alarmed.1 At one time,

Adkins denied that his badge ever alerted for H2S while working for Marathon. (Doc.

53-15, #2471). Supporting that, there is no written record of Adkins’s badge alarming.

1 Adkins also attests he and other deckhands would occasionally cover their H2S badges to

prevent them from alarming. (Doc. 123, #8653). There is no other evidence this occurred

besides Adkins’s word. If true, this would violate Marathon’s policies. (Id.).

In his deposition, though, he claimed his badge alarmed five or six times, and he

claimed to have informed the captain each time. (Doc. 119, #7816–17). Adkins never

completed any written form detailing his badge alarming. He claims that he thought

that was the captain’s responsibility. (Id. at #7819). Marathon personnel, on the other

hand, aver the deckhand is responsible for reporting such incidents. (Doc. 123,

#8630). Consistent with the latter, discovery produced two other H2S badge alert

reports from other deckhands that the ship’s captain had not seen before. (Id.; Doc.

123-3; Doc. 123-4). And, as far as the Court can tell, discovery produced no instances

of a captain submitting a report about a deckhand’s badge alarming.

Relevant to this case, an “event” occurred on May 26, 2012. Adkins boarded

Marathon’s vessel, the M/V Garyville, on May 24, 2012, to begin a multi-week trip

launching from the Cincinnati area. (Doc. 119, #7822). The first two days passed

without incident, although Adkins claims he felt “not so good” later on the 25th. (Id.

at #7824). Adkins later attested this was the first time he ever felt ill on a Marathon

boat. (Id. at #7825). On May 26, Adkins started his work at 6:00 a.m., loading the

barge with VGO. (Id.). He completed his first shift at 12:00 p.m., seemingly without

incident. (Id.). The day was hot and sunny, around 93 degrees. (Id. at #7827).

Later in the day, Adkins prepared for his next shift, which started at 6:00 p.m.

(Id. at #7826). Before starting, Adkins “calibrated” his H2S badge. (Id.). Then, some

malfunction caused Adkins’s badge to alarm. (Id.). Captain Jeremy Stewart ordered

Adkins to swap badges with another crewman and start his shift. (Id.). Adkins

believed this was a safety violation and complained, but Stewart ordered him to do

so anyway. (Id.). Wearing a fellow crewman’s badge, Adkins then began his shift at

the scheduled time. (Id.).

Around 7:30 p.m., Adkins fell ill. While opening a VGO valve, he suddenly felt

light-headed and delirious, experiencing a headache and shortness of breath. (Id. at

#7826–27). He describes the illness’s onset as sudden and “in a hurry.” (Id. at #7827).

Adkins’s badge did not alarm. (Id.). The H2S badges worn by nearby crewmen also

did not alarm. (Doc. 123, #8651; Docs. 123-3). Adkins immediately left his post and

went to tell a fellow crewmember he felt ill. (Doc. 119, #7827–28). The crewmember

got Adkins a glass of water and let him cool off. (Id. at #7828). After cooling off and

taking an Ibuprofen tablet, Adkins went to speak with Stewart. (Id.; Doc. 119-4,

#7912).

After arrival, the two drafted a “Boatcrew Report of Injury or Illness”

memorializing the incident. (Doc. 119-4). In the report, Adkins described the events

and illness. He wrote, in full: “Opening [sic] valve and got light-headed and headache

came, and also had shortness of breath and felt like tachycardia.”2 (Id. at #7912).

Adkins signed the report. (Id.). Later, Adkins reported to Kristopher Perdue, another

Marathon employee, that he had been wearing an H2S badge properly and confirmed

it had not alarmed during the incident. (Doc. 53, #2158–59).

Adkins now tells a slightly different story of that interaction. In his deposition,

Adkins claims he immediately suspected H2S fumes had caused his condition. (Doc.

119, #7828). And Adkins says he told Stewart his suspicions right away. (Id.). But

2 As noted above, doctors had previously diagnosed Adkins with tachycardia, so he

presumably knew what it felt like to suffer a tachycardic event.

H2S is mentioned nowhere in the report. Further, when questioned at his deposition,

Adkins could not explain his suspicion beyond pointing to his four years’ experience

pumping barges. (Id.).

In any event, Stewart called for Adkins to be taken to a hospital, and a cab

came to take Adkins to be evaluated. (Id. at #7830). Adkins reported his symptoms to

the doctor, who ran blood work. (Id. at #7831–32; Doc. 119-5, #7917). The report noted

his “chief complaint” as feeling “lightheaded.” (Doc. 119-5, #7917). The doctor’s report

acknowledged Adkins had “a history of asthma” but also stated Adkins “[r]eveals easy

respiratory effort without the use of accessory muscles. Auscultation is clear.” (Id.).

Under “diagnosis for discharge,” the doctor wrote, “cardiac arrhythmia by history and

heat intolerance.” (Id. at #7918). Adkins also told the doctor he hadn’t “felt good since

[he] started on Metoprolol.” (Doc. 119, #7832). The hospital discharged Adkins a few

hours later. Adkins has not worked for Marathon since.

In the following months, Adkins saw a family physician and a pulmonologist.

(Doc. 55-16, #2962). Unlike the doctor Adkins saw after leaving the barge, the

pulmonologist diagnosed Adkins with toxic fume inhalation and prescribed him

pulmonary medication. (Id.). Adkins’s medical experts argue his lung capacity had

deteriorated as compared to the pulmonary tests performed before the May 26th

incident. (See id.). And at some point later on, doctors prescribed Adkins “more

intense bronchodilator treatment and eventually supplemental oxygen.” (Id. at

#2963).

Claiming his injury had occurred on the boat, Adkins sought to have Marathon

pay for his medical care under the maritime doctrine of maintenance and cure. (Doc.

52-9, #1939–40). Marathon refused, arguing his symptoms began before he boarded

the ship, and told him to submit all bills to his private health care insurance. (Id.).

But Marathon paid Adkins short-term sick pay benefits directly following the

incident and has paid long-term disability benefits since. (Doc. 119, #7854–55).

In 2016, after this litigation began in Louisiana, Adkins saw Dr. Glenn Gomes.

(Doc. 55-16, #2962). Adkins’s counsel contacted and hired Gomes to see Adkins, but

Adkins’s counsel did not attend the first appointment. (Doc. 55, #2645). Gomes

performed further pulmonary tests and found some slight improvement in Adkins’s

lung capacity from prior tests. (Doc. 55-16, #2962). But Gomes still reported a

“pattern of mixed obstruction and restriction consistent with moderate to severe

impairment of lung function.” (Id.). At that first visit, Gomes did not report the cause

of Adkins’s injury. (See Doc. 55-9).

A few months later, Gomes met with Adkins again but with Adkins’s counsel

present. (Doc. 55, #2645–46). And this time, Gomes pinpointed a cause. He concluded

H2S fumes had permanently injured Adkins’s lungs. (Doc. 55-16, #2963). He also

noted some improvement in lung function, which he attributed to therapy and

removal from exposure to H2S. (Id.). Finally, Gomes performed additional studies

that found no evidence of pulmonary fibrosis or radiological abnormalities. (Id. at

#2962).

At the time he initiated this litigation, Adkins claims he becomes fatigued after

10 to 15 minutes of activity and can no longer work. (Doc. 119, #7854). He says he

uses supplemental oxygen most of the time. (Id. at #7853). When asked what out-of-

pocket expenses he had incurred related to the injuries described in this case, he

reported paying $800 in “prescriptions and stuff.” (Id. at #7855).3

B. Procedural History

The Court knows little about the first phase of this litigation. Apparently,

Adkins first sued Marathon in Louisiana state court in 2015. (Doc. 1, #1–2; Doc. 8,

#41–42). As noted, Adkins later met with Gomes on February 18, 2016. (Doc. 55-16,

#2962). On August 17, 2016, Gomes drafted a letter detailing his review of Adkins’s

condition and his diagnosis and prognosis. (Doc. 55-16). In compiling that letter,

Gomes attests to reviewing: (1) “Early medical history 2006-2012,” (2) “Injury

Report,” (3) “Marathon company report and subsequent records,”, and (4) “Various

treatment records.” (Id. at #2960). Gomes’s letter does not cite any articles or studies

to support his conclusions. The litigation continued until a Louisiana court

determined this case would be better prosecuted closer to Adkins’s home in

Portsmouth, Ohio. Accordingly, the Louisiana court stayed the matter to permit

Adkins to refile in the Southern District of Ohio. (Doc. 1-2).

Adkins filed his Complaint in this Court on September 27, 2017, (Doc. 1), then

amended his Complaint on February 20, 2018, (Doc. 17), and amended again on

3 Financially, Adkins relies on Social Security disability and long-term disability benefits

from Marathon. (Doc. 119, #7854). Combined, Adkins currently receives approximately

$1,950 monthly from these two sources. (Id.). And as noted, Marathon also paid Adkins short-

term sick pay benefits for some period of time after the May 26 incident. (Id. at #7855).

February 21, 2018, (Doc. 18). In his Second Amended Complaint, Adkins pursues

three causes of action: the Jones Act, unseaworthiness, and maintenance and cure.

(Id. at #346–54). The crux of Adkins’s allegations is that, while serving on Marathon’s

barge, Adkins experienced cumulative, low-level exposure to H2S fumes, and that this

aggregate low-level exposure caused permanent damage to his respiratory system.

(Id. at #335, 344–35).

The parties engaged in discovery. The Court issued an initial scheduling order,

with Adkins’s primary expert disclosures due by February 1, 2019, Marathon’s

primary expert disclosures due by April 1, 2019, and a final discovery deadline

(including expert discovery) of May 30, 2019. (Scheduling Ord. 6/22/18). After the

parties requested extensions, the Court reset Adkins’s expert disclosures for March

6, 2019, and the discovery deadline for July 15, 2019. (Not. Order 03/04/19; Doc. 40).

As part of working up the case, the parties engaged experts and undertook

extensive discovery as to each other’s experts. Adkins disclosed multiple experts,

along with Adkins’s “treating physician” Dr. Gomes. First, Adkins hired Dr. Sheila

Butler, who opined regarding Marathon’s health and safety standards. (Doc. 118-9,

#7657). At her deposition, though, Butler made clear she was not opining as to

medical causation—i.e., whether or how H2S caused Adkins’s present symptoms.

(Doc. 118, #7529). Second, Adkins retained Dr. Rachel Jones, who offered an opinion

as to Adkins’s approximated overall cumulative exposure to H2S. (Doc. 117-4, #7499–

500). Again, though, Jones did not discuss whether (or how) cumulative H2S exposure

causes injury.

Third, and more relevant to this Opinion, Adkins hired Dr. Charles Pue. (Doc.

120). Like Gomes, Pue reached an opinion concerning medical causation, and he

provided two reports disclosing that opinion. (Docs. 120-9; 120-20). In his first report,

timely disclosed on March 1, 2019, Pue argued Adkins suffered from a “[c]hronic

respiratory condition due to the inhalation of” H2S fumes. (Doc. 120-9, #8256). Citing

the temporal relationship between his exposure and the onset of his symptoms, Pue

concluded Adkins’s “asthma was aggravated by exposure to H2S gases, fumes, and

vapors” and that such aggravation is now permanent. (Id.). Pue noted in the report

that Gomes had characterized Adkins’s exposure to H2S fumes as “chronic.” (Id. at

#8252). But beyond noting that, Pue said nothing about the H2S concentrations that

are required to cause injury, whether he contends that H2S exposure is cumulative,

or the physiological mechanism by which the asthma aggravation allegedly occurs.

Then on October 4, 2020, over eighteen months after the revised deadline for

expert disclosures had passed, Pue issued a supplemental report. (See Doc. 120-20;

Not. Order 03/04/19). He did so without leave from the Court and mere days before

his October 8 deposition.4 (See Doc. 120). In that supplemental report, Pue examined

additional incident reports and a deposition of a crewmember before reaffirming his

original medical causation theory. (Doc. 120-20, #8419–20). Again, though, beyond

asserting that the H2S gases caused Adkins’s pulmonary injury, Pue still provides no

discussion of the details surrounding that.

4 Marathon objects to the consideration of this report because Pue issued the supplemental

report after the deadline.

More than that, neither of Pue’s two reports identified any articles, studies, or

other outside sources as direct support for his claim that H2S exposure can aggravate

asthma. True, both reports include an appendix, listing various articles. But neither

report explains how, or even whether, those articles support his opinion regarding

causation. (Doc. 120-9, #8258; Doc. 120-20, #8422).

Finally, Adkins offers Gomes as a testifying, non-retained, treating physician.

As discussed, Gomes prepared a four-page letter which contains his medical

causation opinion. (Doc. 55-16, #2960–63). But his letter too does not cite any

scientific studies, peer-reviewed articles, or similar sources to support his opinion.

Marathon, for its part, engaged experts as well. Relevant to medical causation,

Marathon’s experts disagreed with Adkins’s cumulative exposure theory. After

surveying the literature, Marathon’s experts concluded: “There is no indication that

repeated H2S exposure at low concentrations is capable of causing or contributing to

any pulmonary disease or respiratory injury.” (Doc. 115-6, #6818). According to these

experts: “H2S is not a cumulative or stored toxicant” and is “only known to cause

temporary symptoms” such as “loss of consciousness, asphyxiation, and death (if not

removed from the area) due to exposure to high concentrations.” (Id.). The expert

report also cited studies purporting to show a lack of pulmonary effect from repeated,

low-level exposures. (Id. at #6838–39).5

5 Adkins argues these expert opinions are inadmissible under Rule 702 and Daubert. (See

Doc. 136). The Court does not reach the admissibility of Marathon’s experts’ opinions though.

As discussed below, Adkins has failed to provide his own admissible evidence for an issue on

which he bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

That failure means Adkins loses on summary judgment, independent of whether Marathon

has any admissible evidence to the contrary on this issue. Id.

C. Cross-Motions For Summary Judgment

On June 30, 2021, both parties moved for summary judgment. Marathon

sought judgment in its favor as to all of Adkins’s claims. (Doc. 128). Relevant here,

Marathon argued Adkins had not carried his burden of creating a genuine dispute

whether (1) long-term, low-level H2S exposure can cause symptoms like those seen in

Adkins (general causation), or (2) the H2S exposure here did cause Adkins’s

symptoms (specific causation). (Doc. 128-1, #8863–67). Marathon said each of

Adkins’s experts is incapable of reliably testifying as to these two issues—dooming

Adkins’s Jones Act and unseaworthiness claims. (See id.). Finally, Marathon’s

argument on maintenance and cure did not expressly invoke the word “causation,”

but the ultimate effect was the same. Marathon argued the claim failed because any

symptoms attributable to his service on the barge—e.g., lightheadedness, dizziness—

resolved with rest and cooling off. (Id. at #8868). In other words, Marathon contends

that no evidence shows that Adkins’s present injury (loss of pulmonary function)

arises from, or relates to, his service on the boat.

Accompanying this Motion, Marathon filed four Motions to Strike or Limit

Testimony, one for each of Adkins’s deposed experts: Gomes (Doc. 124), Butler (Doc.

125), Jones (Doc. 126), and Pue (Doc. 127).

For his part, Adkins moved for partial summary judgment on his cure claim.

(Docs. 130; 135). (Adkins seems to have filed two parallel Motions for Partial

Summary Judgment, but the second is merely an enhanced version of the first.)

Emphasizing the claim’s strict liability nature, Adkins argued that all he need show

is that he became sick while aboard Marathon’s barge. (Doc. 135, #9234–35). Finally,

Adkins too sought to limit the testimony of Marathon’s proposed experts and other

proposed witnesses. (Doc. 136). As part of that, Adkins asked to submit a USB drive

containing information relevant to his cross-examination of one of Marathon’s

proposed witnesses. (Doc. 134).

After reviewing the record and the parties’ various motions, the Court

determined that general causation was a key issue in the case. Specifically, the

parties dispute whether Adkins has provided sufficient evidence from which a jury

could conclude that repeated, low-level exposure to H2S fumes, akin to what Adkins

allegedly suffered here, can cause respiratory injury. After reviewing Adkins’s expert

disclosures, the Court believed Pue likely came closest to reliably providing that

testimony. Accordingly, the Court held a Daubert hearing to assess whether Pue’s

expert testimony would be admissible at trial with regard to general causation. (Docs.

161, 162). The specifics of Pue’s testimony there are discussed as relevant below.

All matters are now fully briefed and ripe for ruling.

STANDARD OF REVIEW

Both parties seek summary judgment (although on Adkins’s part, it is only

partial summary judgment). For either to prevail, they “bear[] the initial

responsibility of informing the district court of the basis for its motion and identifying

those portions’ of the record which demonstrate ‘the absence of a genuine issue of

material fact.’” See, e.g., Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL

4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986)). This can include, for example, the moving party showing that the

nonmoving party lacks evidence on an issue on which the nonmoving party bears the

burden of proof. Celotex, 477 U.S. at 325; Clark v. Walgreen Co., 424 F. App’x 467,

471 (6th Cir. 2011).

Once the moving party has met this “initial responsibility,” the nonmoving

party cannot defeat summary judgment merely by pointing to any factual dispute.

Indeed, “[t]he mere existence of some alleged factual dispute between the parties will

not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v.

City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). That is, the

dispute must be both “genuine” (i.e., supported by evidence) and go to a “material

fact” (i.e., a fact that could change the outcome).

In sum, after reviewing all the cited evidence, the Court must determine

whether there is some “sufficient disagreement” that necessitates submitting the

matter to a jury. See Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993)

(quoting Anderson, 477 U.S. at 251–52). And in making that determination, the Court

must view the evidence in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.”).

LAW AND ANALYSIS

Adkins asserts three causes of action under maritime law seeking recovery for

injuries he allegedly suffered from exposure to H2S while aboard Marathon’s vessel.

While each cause of action has somewhat differing elements, all fail for the same

reason. Each requires proof of a causal link between the H2S exposure and Adkins’s

alleged injuries. But Adkins has not provided admissible evidence to establish that

link. That is largely because his medical causation experts—Pue and Gomes—did not

comply with the Federal Rules of Civil Procedure in disclosing their opinions.

Whatever the reason for the shortcoming, though, without causation evidence to

support his claims, a reasonable jury could not find in his favor.

A. All Three Claims Require Adkins To Show That The Exposure To H2S

Both Can Caused And Did Cause His Alleged Pulmonary Injuries.

As noted, Adkins is pursuing three causes of action under maritime law: (1) the

Jones Act, (2) unseaworthiness, and (3) maintenance and cure. (Doc. 18, #346–54).

Based on the theories that Adkins is advancing here, each claim requires a showing

of causation for him to recover.

1. The Jones Act

The Jones Act codifies a negligence-based cause of action for a seaman to bring

against his or her employer. See 46 U.S.C. § 30104. Like other negligence claims, a

seaman must demonstrate duty, breach, causation, and damages. See Perkins v. Am.

Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001). That said, the Jones

Act employs a “reduced standard for causation between the employer’s negligence

and the employee’s injury.” Id. “Under the Jones Act, a plaintiff need only show that

the defendant’s negligence, however slight, contributed in some way toward causing

the plaintiff’s injuries.” Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463 (6th

Cir. 1993).

Here, Adkins is claiming an entitlement to relief based on his reduced lung

function, which he says results from H2S exposure on the Marathon vessel. Thus, to

succeed on this claim, he must show a causal relation between that exposure and his

current injuries—i.e., that the exposure “contributed in some way” to that injury.

2. Unseaworthiness

Unseaworthiness, by contrast, is a federal common law claim. Under this

doctrine, “[a] ship owner is strictly liable for personal injuries caused by his or her

vessel’s ‘unseaworthiness.’” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904

(6th Cir. 2006) (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960)). “A

vessel is unseaworthy if the vessel and its appurtenances are not ‘reasonably fit for

their intended use.’” Id. But as that suggests, unseaworthiness too has a causation

element. “A plaintiff must prove that the unseaworthy condition played a substantial

part in bringing about or actually causing the injury and that the injury was either a

direct result or a reasonably probable consequence of the unseaworthiness.” Miller,

989 F.2d at 1463 (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th

Cir. 1988)).

Thus, just as with the Jones Act claim, to succeed on his unseaworthiness

claims, Adkins again must show a causal link between the H2S exposure and the

injuries for which he is seeking relief.

3. Maintenance and Cure

That leaves maintenance and cure—the ancient maritime remedy. See The

Osceola, 189 U.S. 158, 175 (1903). Maintenance describes a shipowner’s duty to

provide a seaman food and lodging. Cunningham v. Interlake S.S. Co., 567 F.3d 758,

761 (6th Cir. 2009). Cure, on the other hand, describes a shipowner’s duty to provide

medical care “during the period of injury or illness.” Id. As a strict liability regime for

the benefit of the seaman, ambiguities are resolved in the seaman’s favor. See

Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). To prevail, a claimant must show

“(1) he was working as a seaman, (2) he became ill or injured while in the vessel’s

service, and (3) he lost wages or incurred expenditures relating to the treatment of

the illness or injury.” West v. Midland Enters., Inc., 227 F.3d 613, 616 (6th Cir. 2000).

The “lost wages” in the third element refers to compensation that the seaman

would have otherwise earned over the course of their employment contract without

the injury. Blainey v. Am. S.S. Co., 990 F.2d 885, 891 (6th Cir. 1993). Here, Adkins

has not claimed—nor does the record detail—any such lost wages. (See Doc. 18, #353–

54; Doc. 157, #9802). Thus, his only way of showing the third element is with

expenses. And in these circumstances, maintenance and cure only permits a seaman

to recover his or her actual out-of-pocket expenses. See Al-Zawkari v. Am. S.S. Co.,

871 F.2d 585, 588 (6th Cir. 1989); Shaw v. Ohio River Co., 526 F.2d 193, 200 (3d Cir.

1975). On that front, the only out-of-pocket expenses the record reflects are $800 in

expenses that Adkins incurred for “prescriptions and stuff.” (Doc. 119, #7855).

Causation is not per se an element of maintenance and cure. Messier v.

Bouchard Transp., 688 F.3d 78, 83–84 (2d Cir. 2012) (“The rule of maintenance and

cure is simple and broad: a seaman is entitled to maintenance and cure for any injury

or illness that occurs or becomes aggravated while he is serving the ship.”); Ramirez

v. Carolina Dream, Inc., 760 F.3d 119, 124 (1st Cir. 2014). But where an injury

manifests after a seaman has left his service, causation plays a limited role.

Specifically, the seaman must show that the later-arising injury—and accompanying

expenses—arise from the seaman’s service. See Messier, 688 F.3d at 85; Wills v.

Amerada Hess Corp., 379 F.3d 32, 53 (2d Cir. 2004); Prendis v. Cent. Gulf S.S. Co.,

330 F.2d 893, 896 (4th Cir. 1963).

So although causation is not normally part of maintenance and cure, Adkins

nonetheless must prove here that his claimed out-of-pocket expenses related to an

injury that occurred or was aggravated while he served on the barge. And, based on

Adkins’s theory, that means he must show that his cumulative, low-level exposure to

H2S fumes caused or worsened his pulmonary injury, which in turn required him to

spend that $800.

In sum, each of Adkins’s claims requires some showing of causation.6

6 Granted, Adkins vigorously disputes that causation has any bearing on his cure claim. (Doc.

157, #9801–02). And as discussed, that is normally true—particularly when the injury and

out-of-pocket medical expenses are obviously related to a seaman’s service. But here, what

expenses are “related” is not obvious but rather hotly disputed. Indeed, Marathon proffers

experts who say the body of medical research does not support that H2S even could have

caused or aggravated Adkins’s present injury. Thus, Adkins’s burden as plaintiff requires he

provide at least some affirmative evidence tracing his present injury and accompanying

expenses to his service with Marathon. See Prendis, 330 F.2d at 896 (“Even though the right

of recovery for maintenance and cure is quite broad, the [seaman] still bears the burden of

alleging and proving facts that bring himself within its scope.”).

4. General And Specific Causation

As this is a toxic tort case, establishing causation requires two showings:

general causation and specific causation. Pluck v. BP Oil Pipeline Co., 640 F.3d 671,

676–77 (6th Cir. 2011). General causation means “the toxic substance is capable of

causing” injuries of the type at issue. Id. (emphasis added). Specific causation, by

contrast, means the toxic substance in fact “did cause [] the plaintiff’s alleged injury.”

Id. In cases like this one, proving either requires expert testimony. Id. (“Both

causation inquiries involve scientific assessments that must be established through

the testimony of a medical expert.”); see also Wills, 379 F.3d at 46 (“Where … the

nexus between the injury and the alleged cause would not be obvious to the lay juror,

‘[e]xpert evidence is often required to establish the causal connection between the

accident and some item of physical or mental injury.’” (quoting Moody v. Maine Cent.

R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987))). And if those experts who would otherwise

demonstrate general or specific causation are excluded, “a plaintiff’s toxic tort claim

will fail.” Pluck, 640 F.3d at 677 (quoting Baker v. Chevron USA, Inc., 680 F. Supp.

2d 865, 874 (S.D. Ohio 2010)). Maritime law cases are no different. See Wills, 379

F.3d at 46.

B. Adkins Lacks Admissible Evidence Sufficient To Create A Genuine

Dispute As To General Causation Or Specific Causation.

As the movant for summary judgment, Marathon bears the initial burden to

show there is no genuine issue of material fact that Adkins cannot prevail on his three

claims. As already noted, Marathon can discharge this burden by showing Adkins

lacks evidence necessary to prove his case. Pursuing that avenue here, Marathon says

Adkins’s proposed experts cannot offer admissible testimony that would create a

genuine dispute on medical causation. And absent a genuine dispute as to causation,

Marathon asserts, all Adkins’s claims fail.

Adkins disagrees. That is, he believes his experts—Pue and Gomes

specifically—are admissible and can adequately testify on both general and specific

causation. (See Doc. 32). And in Adkins’s view, their testimony creates a genuine issue

of material fact sufficient to survive summary judgment.

In short, then, this dispute comes down to admissibility. If Adkins is to create

a genuine issue of material fact, either Pue or Gomes, or both together, must have

admissible testimony to create a genuine dispute of material fact on both general and

specific causation. Measured against that standard, Adkins falls short. Indeed, as

discussed below, neither expert has offered admissible opinion testimony as to either

general or specific causation.

1. Pue Cannot Testify As To Causation.

The decision to admit an expert opinion has both a procedural element and a

substantive element. As to procedure, the proffering party must disclose any opinion

that an expert intends to offer at trial in accordance with the Federal Rules of Civil

Procedure. Then, as a matter of substance, that opinion also must meet reliability

standards. Here, Pue’s general causation opinion has problems on both fronts.

Start with the former. At the Daubert hearing, Pue made clear that the opinion

he now intends to present at trial is that repeated low-level exposure to H2S fumes

(actually, to any irritant) can cause “airway remodeling” that, especially for

asthmatics, may cause permanent injury to pulmonary function. (Doc. 162, #9967–

68). But he never disclosed that opinion, nor anything like it, in his original report.

In fact, exactly what his opinion is on the mechanism of causation has been somewhat

of a moving target. But one thing is clear—his first mention of airway remodeling

occurred in response to the Court’s questioning at a Daubert hearing a few months

ago, some eight years after this litigation began in state court and nearly four years

after expert discovery closed in federal court. And the sources on which he relies to

support his opinions likewise have constantly evolved.

That is not how expert discovery works. Parties are required to disclose an

expert’s opinions and the bases for them in their reports. As explained more fully

below, given Pue’s failure to timely disclose large parts of his proposed testimony, the

Court will limit Pue to the opinions and sources disclosed in his initial report.

But that leads to the second problem. As a substantive matter, Pue did not

sufficiently disclose in that initial report any opinion about the effects continuous

low-level exposure to H2S fumes can have on pre-existing asthma. And even if he had,

the sources in his report do not provide a reliable basis for him to opine that such

exposure causes pulmonary injury to people with pre-existing asthma. Accordingly,

that opinion is inadmissible. As a result, Pue cannot create a genuine dispute on

general causation.

Finally, Pue has not provided an admissible specific causation opinion either.

While he claims to have relied on Gomes’s differential diagnosis as a basis, that isn’t

enough for Pue to state his own opinion on specific causation.

a. Pue did not disclose his general causation opinion in

accordance with the Federal Rules.

The Federal Rules of Civil Procedure set ground rules for discovery and trial

preparation. “The purpose of our modern discovery procedure is to narrow the issues,

to eliminate surprise, and to achieve substantial justice.” Greyhound Lines, Inc. v.

Miller, 402 F.2d 134, 143 (8th Cir. 1968); see also Ginns v. Towle, 361 F.2d 798, 801

(2d Cir. 1966) (“The basic purpose of the federal rules, particularly those concerning

discovery and disclosure, is to eliminate trial by ambush.”).

In the context of experts, the Rules achieve this end by requiring experts to

prepare written reports to be disclosed to the opposing side. Fed. R. Civ. P. 26(a)(2)(B).

The report must include:

(i) a complete statement of all opinions the witness will express and

the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications

authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the

witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and

testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)–(vi). “[A] ‘report must be complete such that opposing

counsel is not forced to depose an expert in order to avoid an ambush at trial; and

moreover the report must be sufficiently complete so as to shorten or decrease the

need for expert depositions and thus to conserve resources.’” R.C. Olmstead, Inc. v.

CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado by Salgado v.

Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998)). In other words, “[e]xpert

reports must include ‘how’ and ‘why’ the expert reached a particular result, not

merely the expert’s conclusory opinions.” Fed. R. Civ. P. 26(a)(2) advisory committee’s

note to 1993 amendment.

A report is deficient when it shows a “lack or reasoning,” provides “only cursory

support,” or is “sketchy, vague or preliminary in nature.” R.C. Olmstead, 606 F.3d at

271; Salgado, 150 F.3d at 741 n.6; see also Brainard v. Am. Skandia Life Assur. Corp.,

432 F.3d 655, 664 (6th Cir. 2005) (noting a report with an “absence of meaningful

analysis and reasoning” is deficient). And later disclosing an opinion’s “how and why”

in a deposition generally cannot cure a deficient expert report. Ciomber v. Coop. Plus,

Inc., 527 F.3d 635, 642 (7th Cir. 2008) (“Rule 26(a)(2) does not allow parties to cure

deficient expert reports by supplementing them with later deposition testimony. …

[The Rule’s] purpose would be completely undermined if the parties were allowed to

cure deficient [expert] reports with later deposition testimony.”); Bresler v.

Wilmington Tr. Co., 855 F.3d 178, 215–18 (4th Cir. 2017) (Wynn, J., concurring).

To be certain, Rule 26 “contemplates that the expert will supplement, elaborate

upon, explain and subject himself to cross-examination upon his report.” Thompson

v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006) (“Section 26(a)(2)(B) does

not limit an expert’s testimony simply to reading his report. No language in the rule

would suggest such a limitation.”). This elaboration can include discussion of the

“normal general standards” known to all members of a profession. Id.

But “elaboration” has its limits. For example, a reference to entirely new bases

of support undisclosed by the report crosses a line. See White v. Woodside, No. 20-

11543, 2022 WL 1123782, at *2 (E.D. Mich. Apr. 14, 2022); Smith v. Pfizer Inc., No.

3:05-0444, 2010 WL 1963379, at *9 (M.D. Tenn. May 14, 2010).

Now apply that framework to Pue’s disclosures here. From March 1, 2019,

when he issued his first report, until November 8, 2022, the second day of the Daubert

hearing, Pue’s opinion on general causation has markedly evolved. Not only that, but

he has repeatedly augmented the bases he claims to have relied on in reaching his

opinion. Simply put, neither his initial report, nor any updated report, provide any

meaningful hint as to his current proposed testimony on general causation.

Start with his actual reports. He filed his initial report on March 1, 2019.

There, Pue’s entire causation theory can be summarized as follows: Adkins suffered

a permanent, chronic respiratory condition from the aggravation of his childhood

asthma caused by, and with temporal relationship to, his inhalation of H2S fumes.

(Doc. 120-9, #8256). That’s it. Pue does not even try to explain how or why H2S fumes

caused Adkins’s injury, what the physiological mechanism of injury was, what

concentrations would cause such injury, or anything of the sort. And the only support

he cites in that report is (1) a Material Safety Data Sheet for H2S and (2) an Appendix

citing seven articles, including the Hessel article (which the Court discusses further

below). (Id. at #8253, 8258). Even as to those sources, the report never explains how

they support Pue’s opinion.

A year and a half later, on October 4, 2020, Pue filed an untimely supplemental

report. There, he cited three additional sources and echoed the same bare-bones

causation conclusions. (Doc. 120-20, #8422). The supplemental report once more did

not explain how continuous exposure to low-level H2S fumes could cause or aggregate

a pulmonary injury. And here again, Pue does not connect the sources he cites to the

opinion he offers.

Perhaps recognizing these shortcomings in causation, Pue took another stab

at it. Just before his deposition on October 8—a year-and-a-half after the expert

disclosure deadline and four days after issuing his supplemental report—Pue

provided Marathon’s counsel with a packet of additional articles not previously

disclosed. (Doc. 120, #8032). When Marathon’s counsel asked about these new articles

at the deposition, Pue replied: “I provided some articles when I wrote my original

report in 2019. And then I provided additional articles as the case progressed. As I

got more information, I provided additional articles as I reviewed the—the records.”

(Id.). Perhaps confused, Marathon’s counsel inquired: “So there are specific articles

that are cited in your report. Are you saying that you did not cite to all of the articles

that you actually relied on?” (Id.). Pue responded:

I cited to specific articles in my report that were pertinent to certain

points that I wanted to make at that time. I also provided additional

articles to [Marathon’s counsel] to share with you because I felt they

were pertinent and would be pertinent for this deposition, so I relied

upon all of those articles that I provided.

(Id. (emphasis added)).

As the discussion turned to the articles supporting his causation opinion, Pue

then invoked, for the first time, an article that Jappinen authored and one that

Guidotti authored. (Id. at #8053; Doc. 120-7; Doc. 112-11). The Hessel article, which

Pue had disclosed in his initial report, cited Jappinen. But Pue did not reference or

discuss Jappinen in either his initial or supplemental reports. As for Guidotti,

Marathon’s expert, Dr. Paul Nony, had relied on the Guidotti article to show a lack

of any causal connection. (Doc. 112-1, #5846). Whether Nony brought Guidotti to

Pue’s attention or not, one thing is certain—Pue’s reports never referred to Guidotti

as a basis for his opinion.

Pue also testified at his deposition, again for the first time, about his prior

experience as a clinical pulmonologist working with patients exposed to H2S on hog

farms and paper mills. (Doc. 120, #8039). He explained how this experience created

yet another independent basis for his general causation opinion. (Id. at #8042, 8045).

Nothing in Pue’s CV showed any previous experience working with patients exposed

to H2S. (See Doc. 120-1).

Marathon’s counsel then asked Pue whether he had a familiarity with the

OSHA/NIOSH standards for workplace exposure to H2S. (Doc. 120, #8044). Pue

attested that he recalled the limit was 20 ppm for an eight-hour workday exposure.

(Id.). The parties then broke for lunch (id. at #8047), during which Pue apparently

conducted additional research on that question. (Id. at #8053). Following the break,

Pue revealed that he double-checked the OSHA website to confirm his recollection.

(Id.). But that wasn’t all. Pue then volunteered:

But on the OSHA page, it says that the ACGIH, which is the American

College of Governmental Industrial Hygienists, they have actually listed

the eight-hour time weighted average for H2S as one part per million.

And the [short-term exposure limit] is five parts per million, which is

significantly lower than what OSHA had listed. So there’s other

organizations that feel that low levels are potentially dangerous, not just

my interpretation of the literature.

(Id.). In other words, Pue located another new, previously undisclosed source as

alleged support for his opinion. But, when Marathon’s counsel inquired whether the

ACGIH explained its recommendations, Pue admitted he did not know and had not

investigated further. (Id.).

Still, Pue wasn’t done discussing the OSHA website. Later on in the deposition,

Pue claimed that while on the OSHA website, he saw a report that an asthmatic may

suffer bronchoconstriction at H2S concentrations of two to five ppm. (Id. at #8115–16,

8151, 8176–77). This “two to five ppm” OSHA recommendation that he (apparently)

discovered mid-deposition—and more than a year after his expert report—has since

become central to Pue’s general causation opinion. (See 11/8/22 Hrg. Trans., Doc. 161,

#9828; 11/18/22 Hrg. Trans., Doc. 162, #9927, 9963). Yet none of this information—

the “two to five ppm” recommendation, the OSHA website, and the ACGIH

recommendation—appeared in Pue’s reports. And Adkins’s counsel did not provide

this source or its contents to Marathon’s counsel ahead of Pue’s deposition, causing

Marathon to later object to any consideration of them. (See Doc. 161, #9828–32, 9855).

Then, on the second day of his deposition, Pue revealed another previously

undisclosed basis for his opinion. As the deposition began, Pue volunteered that he

had conducted yet more research overnight and located guidelines from the American

Thoracic Society (ATS). (Doc. 120, #8084–85). He argued these guidelines “[r]eally

didn’t do anything to change any of [his] opinions,” but still offered them as a basis

for his general causation opinion. (Id.). Pue stated he had read the guidelines “in the

past,” making it “part of [his] knowledge bases that [he] used in preparing his report.”

(Id. at #8089). Taken aback, counsel for Marathon put on the record: “I’m going to tell

you that I just received that earlier today and haven’t had an opportunity to really

review it in any—any depth other than to kind of read the overview on here.” (Id. at

#8087).

Aside from inquiring into sources, counsel for Marathon also asked Pue at his

deposition to describe what H2S fumes do to the human body. (Id. at #8053). Pue

explained that H2S interacts with smooth muscles in the body, such as the airways,

to relax them. (Id. at #8053–54). When asked, he disclaimed knowing how the body

metabolizes and removes H2S. (Id. at #8054). Beyond that, Pue provided no further

explanation about how H2S interacts with the body—certainly nothing about “airway

remodeling.”

Fast forward to the Daubert hearing. When questioned about the basis for his

opinion that cumulative, low-level exposure to H2S fumes can cause pulmonary

injury, at least to asthmatics, Pue cited to the Jappinen, Hessel, Guidotti articles, the

ATS guidelines, the “two to five ppm” recommendation from the OSHA website, and

his personal experience. (Doc. 162, #9926–27).

But even then, Pue was not done revealing new bases for his opinion. At the

hearing, he described for the first time an article by Richardson, which traced sewer

workers who had been exposed to low levels of H2S on the job. (Doc. 161, #9898–99).

Marathon’s counsel responded by “object[ing] to any reliance by Pue or the Court …

with respect to the Richardson article” because “[i]t was not referenced in either of

Pue’s expert reports, his deposition, or in the year since then.” (Id. at #9899). Pue

defended his discussion of the article, confirming he had relied on this article when

forming his general causation opinion in his reports (albeit apparently failing to

disclose that fact). (Id.).

Second, Pue pointed to two “animal studies,” Lopez and Holbert, as further

bases for his opinion.7 (Id. at #9834–35). When asked by Marathon’s counsel, Pue

claimed he could rely on these studies because “they are references within the

references I provided.” (Doc. 162, #9957–58). In other words, the articles he had cited

in turn cited to the animal studies.

The Court expressed concern about what appeared to be shifting bases for

Pue’s opinion. After Pue began to testify as to the “two to five ppm” recommendation

from the OSHA website, Marathon’s counsel objected. (Doc. 161, #9828–29). The

Court responded:

I think it’s incumbent upon the parties to disclose the experts on which

they intend to rely, and then disclose the substance of those experts’

opinion, and then disclose the bases on which the expert has relied to

form those opinions as part of the expert discovery process. And I don’t

intend to allow experts to have a certain set of bases for their opinions

for purposes of discovery, and then in terms of trying to establish

admissibility or for testimony at trial, all of a sudden have a different

set of bases for their opinions.

(Id. at #9832). As Marathon’s counsel continued to object to Pue’s new bases, the

Court returned to that same theme:

What I’m still stuck on is [Marathon counsel’s] objection that this is

undisclosed testimony. I guess you can elicit it [for purposes of the

Daubert hearing], because it’s just going to me, anyway. But I will tell

7 In fairness to Pue, the Court specifically asked whether low-level exposure to H2S had been

tested in animals. (Doc. 161, #9834). Pue responded in the affirmative and claimed his

general causation opinion relied in part on these studies. (Id. at #9834–35). Indeed, when

told his opinion could not be based on a pure hunch, he pointed specifically to the animal

studies as demonstrate he was not speculating. (Id. at #9907–08). Yet if these studies did

indeed factor into his opinion, he did not disclose that in his reports or during his deposition.

you, I’m not going to consider opinions that were not fairly disclosed in

connection with the expert discovery part of this case. I don’t think it’s

appropriate, as I tried to make clear at the outset, to sort of do expert

opinion by ambush. You know, the way discovery works, you have to—

everybody puts their opinion out up front, and their bases for it, and

then those are the opinions that they offer during hearings and during

trial. And so I’m just not comfortable with the doctor—if he is [allowed

to testify], and I haven’t ruled on that, but I’m not going to allow him to

offer a bunch of additional opinions on an ad hoc basis here that were

not disclosed to the other party.

(Id. at #9846).

Finally, at the end of the Daubert hearing, Pue refined his general causation

theory once more. As the hearing was about to end, the Court asked a clarifying

question about Pue’s understanding of low-level H2S exposure and its effects. (Doc.

162, #9966). In response, Pue (finally) explained how and why he thought H2S could

cause breathing problems when a person with asthma receives chronic exposure in

small doses over time. (Id.).

He described that because H2S is an inflammatory irritant, repeated exposure

in low doses causes (1) the cilia (e.g., small hairs in the throat) to become thicker and

longer over time, (2) hypertrophy (e.g., enlargement) of the mucus glands, and

(3) hypertrophy of the muscles surrounding the airway. (Id.). Pue called this process

“airway remodeling.” (Id.). But then Pue further explained that any irritant at

sufficient levels can cause “airway remodeling” from long-term exposure—H2S was

merely one of potentially many culprits. (Id. at #9968–69). He testified that even

exposure to common inflammatory agents, like common allergens, could cause the

same outcome. (Id. at #9969). He could not provide any literature supporting this

theory. (Id.). Instead, Pue simply testified airway remodeling was “general

knowledge” and “goes back to medical school mechanisms of development of asthma.”

(Id. at #9969–70).

As with most other aspects of his opinion, Pue’s newfound “airway remodeling”

theory surprised Marathon’s counsel. She argued: “This analysis, this description of

how and why that we are about to get into was not included in Pue’s report, either of

them, the March 2019 report, nor the October 2020 report.” (Doc. 161, #9843–44).

Adkins’s counsel responded it was Marathon’s counsel fault she had not asked Pue

“what the mechanism of injury is” during the deposition. (Id. at #9847). Not so.

Marathon’s counsel had asked Pue at his deposition “what does hydrogen sulfide do

to the human body.” (Doc. 120, #8053). Pue himself confirmed this. (Id. at #8084–85).8

And deposition testimony aside, Pue’s reports needed to include a “complete statement

of all opinions [he] will express.” Fed. R. Civ. P. 26(a)(2)(B)(i) (emphasis added). In

any event, Marathon’s counsel objected to this novel explanation, and the Court again

warned it would not “allow him to offer a bunch of additional opinions on an ad hoc

basis here that were not disclosed to the other party.” (Doc. 162, #9846).

To recap, Pue now claims his general causation opinion rests on an airway

remodeling theory. This specific theory, by name or otherwise, does not appear in his

reports nor his deposition testimony. Further, Pue now claims his opinion relies on

his prior experiences as a clinical pulmonologist with patients allegedly exposed to

8 Pue volunteered at the start of the second day of his deposition: “[Y]ou were asking me about

mechanisms and I had read it before, so I reread it, so I read some of that stuff about the

mechanism of how hydrogen sulfide is—is processed in the body and cleared from the body

and its mechanism of action on the lungs and on the body.” (Doc. 120, #8084–85). So clearly

Pue understood he had been asked about the mechanism of injury.

H2S, articles by Jappinen, Hessel, Guidotti, Richardson, Lopez, and Holbert,

recommendations found on the OSHA website, and guidelines by the ATS. Of these,

Pue’s reports cite only Hessel. He disclosed everything else either (1) days before his

deposition, (2) during his deposition, or (3) at the Daubert hearing.

Taken together, Pue’s proposed trial testimony on general causation, as

currently presented and supported, cannot be properly traced to his disclosures in his

reports. Accordingly, Pue has not complied with Rule 26(a)(2)(B)(i).

Failing to comply with Rule 26(a) has consequences. Under Rule 37(c)(1), “[i]f

a party fails to provide information … as required by Rule 26(a) or (e), the party is

not allowed to use that information or witness to supply evidence on a motion, at a

hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c)(1). “[T]he sanction is mandatory” unless properly explained.

Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th Cir.

2010); Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003)

(holding Rule 37(c)(1) “requires absolute compliance” with Rule 26(a)). The failure is

justified or harmless where:

(1) the surprise to the party against whom the evidence would be offered;

(2) the ability of that party to cure the surprise; (3) the extent to which

allowing the evidence would disrupt the trial; (4) the importance of the

evidence; and (5) the nondisclosing party’s explanation for its failure to

disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute

Collection Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)). For example, a

disclosure will be deemed harmless where the opposing party “had all the information

relevant … in its possession” and “had a full opportunity during [the] deposition to

question” about the relevant issue. Jordan v. City of Cleveland, 464 F.3d 584, 601

n.22 (6th Cir. 2006). The core goal is to “separate ‘honest,’ harmless mistakes from

the type of ‘underhanded gamesmanship’ that warrants the harsh remedy of

exclusion.” Bisig v. Time Warner Cable Inc., 940 F.3d 205, 221 (6th Cir. 2019)

(citations omitted).

“Where exclusion necessarily entails dismissal of the case, the sanction must

be one that a reasonable jurist, apprised of all the circumstances, would have chosen

as proportionate to the infraction.” Dickenson v. Cardiac & Thoracic Surgery of E.

Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health Servs.,

356 F.3d 751, 756 (7th Cir. 2004)). Still, “[d]istrict courts have broad discretion to

exclude untimely disclosures of expert-witness testimony.” Pride v. BIC Corp., 218

F.3d 566, 578 (6th Cir. 2000).

Pue’s failure to comply with the Federal Rules presumptively warrants

exclusion of any general causation opinion, or bases for such an opinion, that were

not fairly disclosed in his timely initial report. Fed. R. Civ. P. 37(c)(1). Accordingly,

the Court applies the Howe factors to determine whether Pue’s infraction can be

considered justified or harmless, overcoming exclusion. Here, the Court concludes the

Howe factors fail to save Pue’s later-disclosed opinions and sources.

Let’s run through the factors. At his deposition and Daubert hearing, Pue

admitted his opinion relied on previously undisclosed sources. Thus, his omissions

created surprise (for both Marathon and the Court) and deprived Marathon of time

to prepare and have a “full opportunity during [the] deposition to question” Pue about

his opinion. Jordan, 464 F.3d at 601 n.22. Further, this evidence is important.

Causation, both general and specific, is a key dispute between the parties.

Moving on, Pue’s haphazard disclosure tactics may well disrupt trial. Even at

his Daubert hearing, Pue continued to disclose new sources and new theories—to

which Marathon objected. If the Court does not exclude this new information, fairness

considerations would require the Court to re-open discovery to allow Marathon an

opportunity to explore Pue’s “clarified” opinions and their bases. Given that this

dispute is close to eight years old, further delay is not warranted.

Pue’s excuse is deficient. He claims he did not need to disclose all his sources

in his expert reports because only specific articles were “pertinent to certain points

that [he] wanted to make at that time,” even though his opinion actually relied (or so

he now says) on additional articles. (Doc. 120, #8032). Again, that’s not how expert

discovery works. It is not a game of hide-and-seek, allowing an expert to withhold

opinions and bases for them until it suits them. See Roberts ex rel. Johnson, 325 F.3d

at 783 (acknowledging a failure to disclose is not harmless where opposing counsel

did not previously know the substance of the expert’s testimony).

At this stage, no less-harsh sanction is reasonable. See Dickenson, 388 F.3d at

983. The obvious alternative would be to re-open expert discovery. But as discussed,

it is too late in the day for that course. This case has been pending for some eight

years when including the Louisiana proceedings. (Doc. 119-2). Experts have

presented their reports. Depositions have occurred. Discovery has closed. Cross-

motions for summary judgment have been filed. Motions to limit testimony have been

filed. And the Court had conducted a two-day Daubert hearing delving into Pue’s

general causation opinion. To allow Pue to now prepare and issue a comprehensive

supplemental report to cure his disclosure omissions would defeat many of the goals

that the Federal Rules of Civil Procedure seek to achieve.

The Court acknowledges that excluding Pue’s untimely disclosures is a severe

sanction. Moreover, the Court emphasizes that it does not exclude Pue for a lack of

credentials. But the Federal Rules exist for a reason. The Court cannot ignore

Adkins’s seeming disregard towards them. Nor can the Court overlook the

consequences that Adkins’s nondisclosure of Pue’s opinions imposed on Marathon’s

ability to prepare its case. And as Marathon’s counsel’s did not have the full

opportunity to research and thus probe Pue’s sources, the Court is concerned whether

it could properly perform its own gatekeeping function under Rule 702. See Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); see also Taylor v. Mentor Worldwide

LLC, 940 F.3d 582, 613–14 (11th Cir. 2019) (Tjoflat, J., dissenting) (recognizing that

where an expert provides evolving theories, “he is effectively able to bypass [the

District Court’s] gatekeeping function” under Rule 702).

In sum, the Court excludes Pue from testifying as to any opinion, or basis for

his opinion, that was not fairly disclosed in his initial report.

b. Pue’s initial report does not substantiate the general

causation opinion he intends to offer at trial.

That leaves Pue’s timely-filed March 1, 2019, report. As noted above, one

problem with that report is that it is so conclusory that it may well fail to satisfy Rule

26(a)’s disclosure requirements. But put that aside. Even if that report is read as

disclosing that Pue intends to testify that repeated, low-level exposure to H2S causes

pulmonary problems for people with pre-existing asthma, his opinion in that regard

still must meet the admissibility standards of Rule 702 and Daubert. Here, it doesn’t.

“[A]dmitting expert testimony is not a decision a court should undertake

lightly, as juries tend to place extra weight on expert opinions.” Navarro v. Procter &

Gamble Co., 1:17-cv-406, 2021 WL 868586, at *2 (S.D. Ohio Mar. 8, 2021) (citing

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993)). As set forth in Daubert,

Courts play a “gatekeeping” role to ensure a jury does not hear “junk science” or

otherwise unreliable evidence. Kumho Tire, 526 U.S. at 141.

This gatekeeping role incorporates a three-part test. “First, the witness must

be qualified by ‘knowledge, skill, experience, training, or education.’” In re Scrap

Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed. R. Evid. 702).

Next, “the testimony must be relevant, meaning that it ‘will assist the trier of fact to

understand the evidence or to determine a fact in issue.’” Id. Finally, and critically

here, “the testimony must be reliable.” Id. Relevant considerations include “testing,

peer review, publication, error rates, the existence and maintenance of standards

controlling the technique’s operation, and general acceptance in the relevant

scientific community.” United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001)

(citing Daubert, 509 U.S. at 593–94).

At its core, reliability requires the expert (1) to use a reliable methodology, and

(2) to base his or her opinions on reliable facts or data. In re Scrap Metal, 527 F.3d at

529. While reliability is a “flexible concept,” an expert’s opinion must have some basis.

Id. at 529–30. Speculation without support won’t cut it. Id.

At the Daubert hearing, Pue named exactly one article in his initial report that

he claims supports this opinion that long-term, low-level exposure to H2S fumes can

aggravate a patient’s asthma and cause a respiratory injury—the Hessel article. (Doc.

120-9, #8258; Doc. 162, #9926–27). That article, though, does not provide a reliable

basis for the opinion he seeks to offer.

In Hessel, researchers studied oil and gas workers in Alberta, Canada, who

had been exposed to high-levels of H2S. (Doc. 120-6, #8239). The paper found that

subjects who suffered a “knockdown” event (i.e., passed out as the result of a high-

level exposure to H2S) showed lingering respiratory symptoms including shortness of

breath and wheezing. (Id. at #8238–39). At the Daubert hearing, Pue extrapolated

from these high-level findings. He proposed they indirectly supported his theory that

“low-level exposures to H2S [can] caus[e] permanent changes, decline in lung function

as evidenced by shortness of breath, wheezing, and attacks of wheezing … that are

statistically significant and are indicative of bronchospasm in patients who have

underlying asthma and are exposed to low levels of H2S.” (Doc. 161, #9869).

The main problem with that argument is that the Hessel study itself explicitly

says the opposite: “This study did not show evidence of measurable pulmonary health

effects as a result of exposures to H2S that were intense enough to cause symptoms

but not intense enough to cause unconsciousness. Even the large concentrations

leading to a loss of consciousness did not appear to affect pulmonary function.” (Doc.

120-6, #8239). When the Court pointed out this discrepancy at the hearing, Pue

pivoted to validating his opinion based on the late-disclosed Jappinen article and ATS

guidelines. (Doc. 161, #9869–70). But, as noted above, the Court is excluding those

references.

In short, Pue has not shown that his initial report provides a reliable basis for

his general causation opinion. To the contrary, his opinion contradicts the express

findings set forth in the Hessel article, and he provides no good justification for why

that is so. Without more, his opinion amounts to sheer speculation. In re Scrap Metal,

527 F.3d at 530. It is not “supported by appropriate validation—i.e., ‘good grounds,’

based on what is known.” Daubert, 509 U.S. at 590. Thus, the Court excludes Pue’s

general causation testimony in its entirety.

c. Pue cannot testify as to specific causation.

Adkins also believes Pue should be permitted to testify as to specific causation.

However, showing specific causation usually requires conducting a differential

diagnosis. Pluck, 640 F.3d at 678. And here, Pue admitted his specific causation

opinion relied not on his own differential diagnosis but on the differential diagnosis

that Gomes performed. (Doc. 120, #8058).

Granted, at the Daubert hearing, Adkins’s counsel disputed that Pue did not

perform his own differential diagnosis. (Doc. 161, #9852–54). But in the briefing,

Adkins told a different story: “[Marathon complains] that Dr. Pue failed to perform a

differential diagnosis. … [T]his argument fails because Dr. Pue relied on the thorough

differential diagnosis performed by Dr. Gomes.” (Doc. 148, #9697).

In any event, the Court agrees Pue’s reports do not detail the analysis normally

demanded for an expert to reliably state their own conclusion on specific causation.

Assessing a differential diagnosis’s sufficiency and reliability—and therefore

admissibility—requires the Court to answer three questions: “(1) Did the expert make

an accurate diagnosis of the nature of the disease? (2) Did the expert reliably rule in

the possible causes of it? (3) Did the expert reliably rule out the rejected causes?”

Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010). Here, given the gaps

in Pue’s general causation opinion, he did not sufficiently “rule in” H2S fumes as a

possible cause of Adkins’s injury.

Further, Pue cannot base his opinion on Gomes. As described below, the Court

also excludes Gomes’s specific causation opinion for insufficient disclosure. Without

Pue establishing his own foundation, then, it should go without saying that Pue may

not simply parrot an otherwise excluded expert’s inadmissible opinion. And even if

Pue claimed he simply used Gomes’s reports as a source of data for Pue to reach his

own opinion, that won’t work. As noted below, Gomes has never pointed to any

scientific or peer-reviewed source to validate his theory of injury. (See Doc. 55, #2614–

17; Doc. 55-16). So much like Pue, Gomes has not performed a reliable differential

diagnosis because he did not adequately “rule in” H2S fumes. Therefore, Pue also may

not testify as to specific causation.

2. Gomes Cannot Testify As To Causation.

With Pue’s opinions out, that leaves Gomes as the only other potential

candidate to provide both a general causation and a specific causation opinion. For

his part, Adkins’s counsel says Gomes may state both causation positions as a non-

retained, treating physician. (Doc. 32, #462; Doc. 146, #9677; Doc. 161, #9913). And

Gomes reaches a causation opinion in his letter: “[Adkins’s] continued exposure to

chemical fumes contributed to [his] decline in lung function and exacerbated his pre-

existing asthma” and “his pulmonary condition was aggravated by a high level

exposure in 05/2012.” (Doc. 55-16, #2963).

But that raises the question: Is Gomes testifying as a treating physician or a

traditional expert? If deemed a traditional expert, he must produce a report that

meets Rule 26(a)(2)(B)’s strictures in order to testify at trial. But here, Gomes’s four-

page letter (his only plausible “report”) falls well short of that standard. (Doc. 55-16).

First, the only outside evidence his “report” references came from Adkins’s counsel.

It opens: “Dear [Adkins’s counsel], I have reviewed medical records and material

safety data sheet and other information provided by your office for evaluation of the

above referenced individual.” (Id. at #2960). Even then he claims to have reviewed

only the following: (1) “Early medical history 2006-2012,” (2) “Injury Report,”

(3) “Marathon company report and subsequent records,” and (4) “Various treatment

records.” (Id.). Second, throughout the opinion, Gomes does not cite any scientific

studies, peer-reviewed articles, or similar sources. Likewise, the sources he does

reference provide no peer-based validation to support his conclusion that H2S

“contributed to” and “exacerbated” Adkins’s condition. Third, while perhaps a less

egregious disclosure shortcoming, Gomes nowhere lists his rates. See Fed. R. Civ. P.

26(a)(2)(B)(vi).

That said, if Gomes is a treating physician testifying within the scope of his

diagnosis and treatment, his letter is enough. See id. at 26(a)(2)(C). After all, a Rule

26(a)(2)(B) “report is not required when a treating physician testifies within a

permissive core on issues pertaining to treatment, based on what he or she learned

through actual treatment and from the plaintiff’s records up to and including that

treatment.” Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007).

“Generally a treating physician can provide expert testimony regarding a

patient’s illness, the appropriate diagnosis, and the cause of the illness even if the

physician is not among the world’s foremost authorities.” Thomas v. Novartis

Pharms. Corp., 443 F. App’x 58, 62 (6th Cir. 2011). But not always. “[C]ourts are more

likely to require a treating physician to provide an expert report if the condition at

issue leaves room for debate as to the specific ailment and its sources.” Fielden, 482

F.3d at 871 (citing Gonzalez v. Exec. Airlines, Inc., 236 F.R.D. 73, 81 (D.P.R. 2006)).

So where do Gomes’s causation opinions place him? Making that determination

requires considering multiple factors:

(1) whether the alleged treating physician was retained to provide

expert testimony; (2) whether the physician formed his or her opinions

at the time of treatment or in anticipation of litigation; (3) whether the

lack of a full expert report would implicate Rule 26’s purposes of

avoiding surprise and unnecessary depositions; (4) whether any expert

opinion on causation was formed during the course of treatment; and

(5) whether the claimed physician will testify to issues beyond those

ordinarily present in his or her medical training.

Barnes v. CSXT Transp., Inc., No. 3:13-cv-525, 2017 WL 1334303, at *13 (W.D. Ky.

Apr. 7, 2017) (citing Fielden, 482 F.3d at 870–73). “[W]here the treating physician’s

opinion is rendered in anticipation of litigation, courts have held that ‘causation is

beyond the scope of the testimony a treating physician may provide without tendering

an expert disclosure report.’” Mohney v. USA Hockey, Inc., 138 F. App’x 804, 810–11

(6th Cir. 2005) (citation omitted)); Jett v. CSX Transp., Inc., No. 2007–162, 2009 WL

899626, at *3 (E.D. Ky. Mar. 31, 2009) (noting a court should consider “whether there

is room for debate as to causation”). A plaintiff bears the burden of showing a full

report is not required. Avendt v. Covidien Inc., 314 F.R.D. 547, 559 (E.D. Mich. 2016)

(citation omitted).

Start with those factors in Adkins’s and Gomes’s favor. Adkins claims Gomes

has not been retained to provide expert testimony.9 (Doc. 146, #9677). And as a

clinical pulmonologist, Gomes has medical training and experience recognizing and

diagnosing respiratory injuries. Those two points help Adkins.

The remaining factors, though, cut against labeling Gomes a treating

physician for disclosure purposes. First, Adkins did not see Gomes until February 18,

2016—months after this litigation began in Louisiana. (Doc. 55, #2645–46). Gomes

was first contacted and hired by Adkins’s counsel, not Adkins himself. (Id.). Indeed,

Adkins’s counsel attended some of Gomes’s appointments with Adkins. (Id.). In sum,

Adkins’s counsel clearly contacted Gomes “in anticipation of litigation.”

Second, a full report from Gomes could have avoided “surprise and unnecessary

depositions” because Adkins’s condition left room for debate on causation. Even if H2S

9 Granted, there is some ambiguity around this. Dr. Gomes testified in the deposition that

his employer, Ochsner Clinic, bills Adkins’s counsel directly. (Doc. 55, #2647, 2650). What is

less clear, though, is whether this billing accounts just for Dr. Gomes’s time preparing for

trial or also for Dr. Gomes’s time examining Adkins. If the latter, it is difficult to say Dr.

Gomes is not “retained” for purposes of trial.

exposure could cause Adkins’s injury, it certainly is not the only possible cause.

Adkins himself admits to exposure to other potential irritants, including seasonal

allergies, asbestos, tungsten/cobalt, dust, and cleaning chemicals. (Doc. 119, #7835;

Doc. 52-4, #1876). As the Sixth Circuit has recognized, “[i]n such circumstances, an

opposing party will be less prepared to depose a treating physician without an expert

report.” Fielden, 482 F.3d at 871. Without the deposition, Marathon would have

received next to no notice of his testimony’s scope.

Third, Gomes likely did not form his causal opinion in the “course of

treatment.” At his first visit with Adkins February 18, 2016, Gomes performed

pulmonary tests but did not pinpoint any given cause. (See Doc. 55-9). Then, at his

second visit June 6, 2016, Gomes attributed Adkins’s injury to “toxic fume inhalation”

in a post-visit summary. (Doc. 55-11, #2916). But recall that Adkins’s counsel

attended this appointment, which occurred well after Adkins and his counsel had sued

Marathon on this same “toxic fumes” theory. (Doc. 55, #2645).

Moreover, Gomes appears to have formed his causation opinion based on

selective information Adkins’s counsel provided. In his letter addressed to Adkins’s

counsel, Gomes admits he reached his conclusions after “review[ing] medical records

and material safety data sheet and other information provided by your office for

evaluation of [Adkins].” (Doc. 55-16, #2960). Gomes’s reliance on Adkins’s counsel—

rather than Adkins alone—further shows Gomes did not reach these opinions in the

“course of treatment.” See Mohney, 138 F. App’x at 810–11 (recognizing a physician

needed to submit an expert report where they reached their causation opinion

through information provided by counsel and long after the relevant events).

Balancing the various factors, the Court concludes Gomes is a traditional

expert. Thus, his proposed testimony regarding general and specific causation is

expert testimony offered absent a Rule 26(a)(2)(B) expert report. See Harville v.

Vanderbilt Univ., Inc., 95 F. App’x 719, 724–25 (6th Cir. 2003); Mohney, 138 F. App’x

at 810–11. That presumptively warrants exclusion.

Adkins responds that Gomes did nothing to “depart from standard treating and

diagnostic procedures in formulating his diagnosis of [his] occupation lung disease

and its causes.” (Doc. 146, #9677). And Adkins argues Marathon has made “no cogent

application of Daubert” or Rule 702 to exclude Gomes’s opinion as a treating

physician. (Id.).

But it is Federal Rule of Civil Procedure 26, not Federal Rule of Evidence 702,

that derails Gomes’s opinions.10 While Gomes perhaps did not depart from a treating

physician’s standard procedures in diagnosing Adkins’s symptoms, a diagnosis alone

does not always prove causation. See Bowles v. Novartis Pharm. Corp., No. 3:12-cv-

145, 2013 WL 5297257, at *3–4 (S.D. Ohio Sept. 19, 2013) (“There is a distinction

between diagnosing a medical condition and determining its cause.”). Especially

where, as here, many potential causes could be to blame, a party must provide a Rule

26(a)(2)(B)-compliant expert report. See Fielden, 482 F.3d at 871. And anyway,

10 Gomes’s failure to provide an expert report has also limited the Court’s ability to assess

Gomes’s expert opinions under Rule 702 and Daubert. His summary disclosures do not

contain the level of detail typically required for a court to assess reliability.

Adkins never addresses that his counsel engaged Gomes months after suing

Marathon on this same causation theory. That fact weighs heavily in the Court’s

conclusion here.

Finding Adkins did not comply with Rule 26(a)(2)(B) in disclosing Gomes’s

opinion, the Court returns to the Howe factors to determine whether that deficient

disclosure should render Gomes’s causation opinions inadmissible. 801 F.3d at 748.

And applying those factors, the Court concludes the failure here was not substantially

justified or harmless.

Gomes’s letter offered virtually no hint as to the “how” and “why” of his

causation opinions or their bases. That left Marathon unable to meaningfully prepare

for his deposition. Here again, the causation testimony is crucial. And neither Adkins

nor Gomes explain Gomes’s failure to compile an expert report other than their

erroneous belief he is an ordinary treating physician. Sure, Marathon deposed Gomes

early and so had time to cure the surprise. Nonetheless, on balance, the Court finds

that Gomes’s failure to submit a traditional expert report is not justified or harmless.

See Harville, 95 F. App’x at 724–25 (affirming a district court’s exclusion of a

physician’s expert testimony for failure to issue a Rule 26(a)(2)(B) report).

Finally, like with Pue, no other sanction besides exclusion is reasonable.

Gomes’s deficient “report” has similarly frustrated the Court’s ability to perform its

gatekeeping function under Rule 702 and Daubert. Indeed, Gomes is worse. Even his

deposition lacks a meaningful discussion of any scientific or peer-reviewed support

he relied on when forming his causation theory. (See, e.g., Doc. 55, #2614–17 (failing

to provide these bases in the face of a direct request)). This further shows exclusion

is the proper outcome.

Taken together, Gomes’s failure to comply with Rule 26(a)(2)(B) is not

substantially justified or harmless. Gomes’s general and specific causation opinions

are excluded. Fed. R. Civ. P. Rule 37(c)(1).

In sum, the Court excludes both Pue’s causation opinions and Gomes’s

causation opinions. Without these opinions, Adkins does not have evidence sufficient

to create a genuine dispute as to medical causation. And without that evidence,

Adkins cannot prevail at trial on any of his three claims. Accordingly, the Court

GRANTS summary judgment in Marathon’s favor on those claims. See Harville, 95

F. App’x at 724–25 (affirming grant of summary judgment in part because expert

testimony was excluded under Rule 37).

Finally, because the Court has found Marathon entitled to summary judgment

on each of Adkins’s claims, Adkins necessarily cannot prevail on his own Motion for

Partial Summary Judgment. (Docs. 130, 135). Accordingly, the Court DENIES that

motion.

CONCLUSION

For the above reasons, the Court GRANTS Marathon Petroleum Company

LP’s Motion for Summary Judgment (Doc. 128) and DISMISSES Adkins’s Second

Amended Complaint (Doc. 18) WITH PREJUDICE. Accordingly, the Court

DENIES Adkins’s Motion for Partial Summary Judgment (Docs. 130, 135). Moreover,

the Court DENIES all other pending Motions AS MOOT. The Court DIRECTS the

Clerk to ENTER JUDGMENT and TERMINATE this matter from the docket.

SO ORDERED.

May 4, 2023

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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