Petition for Writ of Certiorari — Kirk Prest, Petitioner v. BP Exploration & Production, Incorporated, et al.
Supreme Court briefOct 28, 2024
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No. _____________
In The Supreme Court of the United States
___________________
KIRK PREST,
Petitioner,
v.
BP EXPLORATION & PRODUCTION,
INCORPORATED; BP AMERICA PRODUCTION
COMPANY; BP, P.L.C.,
Respondent.
___________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE FIFTH CIRCUIT
_________________________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________________________
TIMOTHY J. FALCON
Counsel of Record
Falcon Law Firm
5044 Lapalco Boulevard
Marrerro, LA 70072
(504) 341-1234
tim@falconlaw.com
Counsel for Petitioner
i
QUESTION PRESENTED
The admission of expert testimony in federal
courts is governed by Federal Rule of Evidence 702
and this Court's decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc. 509 U.S. 579, 592, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993) and its progeny. In
toxic tort cases, the Fifth Circuit requires plaintiffs to
provide "scientific knowledge of the harmful level of
exposure to a chemical" as a prerequisite to
establishing general causation, even when extensive
peer-reviewed epidemiological studies demonstrate
that exposure to the toxic agent increases disease
incidence in exposed populations.
The questions presented are:
1. Whether a trial court may categorically exclude
expert testimony in toxic tort cases solely
because the expert cannot quantify precise
exposure levels, even when substantial peerreviewed
epidemiological
evidence
demonstrates increased disease incidence in
exposed populations and quantitative exposure
data is unavailable or impossible to obtain.
2. Whether the abuse of discretion standard of
review remains appropriate when a trial court
fails to conduct any substantive analysis of the
reliability of expert testimony under Rule 702
and instead applies a categorical rule requiring
quantitative exposure data in all toxic tort
cases.
ii
PARTIES TO THE PROCEEDINGS
Kirk Prest was the plaintiff in the district court
and the appellant in the Fifth Circuit.
BP Exploration & Production, Incorporated; BP
America Production Company; and BP, P.L.C., were
individual defendants in the district court and the
appellees in the Fifth Circuit.
iii
RELATED PROCEEDINGS
This case arises from the following proceedings:
•
In re Oil Spill by the Oil Rig “Deepwater
Horizon in the Gulf of Mexico on April 20, 2010,
No. 2:10-MDL-2179, U.S. District Court for the
Eastern District of Louisiana.
•
Kirk Prest v. BP Exploration & Production, Inc.
BP America Production Company, and BP,
p.l.c, No. 2:17-cv-3409, U.S. District Court for
the Eastern District of Louisiana. Judgment
entered on Nov. 10, 2022.
•
Kirk Prest v. BP Exploration & Production, Inc.
BP America Production Company, and BP,
p.l.c, No. 22-30779, U.S. Court of Appeals for
the Fifth Circuit. Denying rehearing and
hearing en banc on July 29, 2024.
There are no other proceedings in state or federal trial
or appellate courts, or in this Court, related to this
case under Supreme Court Rule 14.1(b)(iii).
iv
TABLE OF CONTENTS
Page
Question Presented .................................................... i
Parties to the Proceedings ........................................ ii
Related Proceedings ................................................. iii
Table of Contents ..................................................... iv
Table of Appendices ................................................. vi
Table of Authorities ................................................. vii
Petition for a Writ of Certiorari ............................... 1
Opinions Below ......................................................... 4
Jurisdiction .............................................................. 5
Statutory Provisions Involved .................................. 5
Statement
............................................................... 6
A. Factual Background ................................. 6
B. Procedural Background .......................... 10
1. Trial Court’s Ruling ..................... 12
2. Dr. Cook’s Opinion is not
Junk Science ................................ 15
v
3. Fifth Circuit Precedent is
Flawed .......................................... 21
Reasons for Granting the Petition ......................... 24
A. Allowing general causation standard to
stand will create perverse incentives
that will harm first responders ............. 25
B. The questions presented are vitally
Important and squarely presented ........ 28
1. Offer Guidance re Gatekeeper
Role .............................................. 29
2. Standard of Review Must
Change ......................................... 31
Conclusion ............................................................. 32
vi
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, FILED OCTOBER 5,
2023 ................................................................... 1a
APPENDIX B — JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA,
FILED NOVEMBER 10, 2022 ........................ 12a
APPENDIX C — ORDER AND REASONS OF
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
LOUISIANA, FILED NOVEMBER 9, 2022 .. 13a
APPENDIX D — ORDER AND REASONS OF
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
LOUISIANA, FILED OCTOBER 18, 2022 .... 31a
APPENDIX E — DENIAL OF REHEARING OF
THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
FILED JULY 29, 2024 .................................... 34a
vii
TABLE OF AUTHORITIES
Page
CASES
Allen v. Pa. Eng’r Corp.,
102 F.3d 194 (5th Cir. 1996) .............. 2, 13, 21
Allison v. McGhan Med. Corp.,
184 F.3d 1300 (11th Cir. 1999) .................... 31
Baker v. Dalkon Shield Claimants Trust,
156 F.3d 248 (1st Cir.1998) ......................... 31
Chapman v. Procter & Gamble Distrib., LLC,
766 F.3d 1296 (11th Cir. 2014) ....................... 1
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786 (1993)
.................... ................ 12, 21, 23, 24, 25, 31, 32
Gen. Elec. Co. v. Joiner,
522 U.S. 136, 118 S. Ct. 512 (1997) ............. 31
In re Deepwater Horizon BELO Cases,
No. 23-11535, 2024 WL 4522690
(11th Cir. Oct. 18, 2024) ................................. 1
In re Paraquat Products Liab. Litig.,
No. 3:21-MD-3004-NJR, 2024 WL 1659687
(S.D. Ill. Apr. 17, 2024) ................................ 29
Joiner v. Gen. Elec. Co.,
522 U.S. 136, 118 S. Ct. 512 (1997) ............. 30
viii
Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 119 S. Ct. 1167 (1999) ..... 21, 24
McKiver v. Murphy-Brown LLC,
980 F.3d 937 (4th Cir. 2020) ......................... 24
McClain v. Metabolife Int’l, Inc.,
401 F.3d 1233 (11th Cir. 2005) ...................... 1
Moore v. Ashland Chem. Inc.,
151 F.3d 269 (5th Cir. 1998) ........................ 20
Prest v. BP Expl. & Prod., Inc.,
No. 22-30779, 2023 WL 6518116
(5th Cir. Oct. 5, 2023) ..................................... 2
Robinson v. Davol, Inc.,
913 F.3d 690 (7th Cir. 2019) ................... 29, 30
Ungar v. Palestine Liberation Org.,
599 F.3d 79 (1st Cir. 2010) .......................... 31
United States v. Lavictor,
848 F.3d 428 (6th Cir. 2017) ........................ 24
United States v. Machado-Erazo,
47 F.4th 721 (D.C. Cir. 2018) ....................... 24
Wright v. Willamette Indus., Inc.,
91 F.3d 1105 (8th Cir. 1996) ................... 21-22
STATUTES AND RULES
Federal Rule of Evidence 702 ................................... 5
ix
28 U.S.C. 1254(1) . ..................................................... 5
OTHER AUTHORITIES
Green, Michael D., et al. Reference Guide on
Epidemiology, in Reference Manual on Scientific
Evidence (Fed. Jud. Ctr., 3d ed. 2011) ............... 1, 23
1
PETITION FOR A WRIT OF CERTIORARI
This petition concerns the application of Daubert
v. Merrell Dow Pharmaceuticals, Inc. and its progeny
in toxic-tort actions. As the Eleventh Circuit recently
explained, toxic-tort actions come in two forms. In the
first, the medical community already recognizes that
a specific agent (e.g., drug, chemical, etc.) is toxic and
capable of “caus[ing] the type of harm plaintiff
alleges.” In re Deepwater Horizon BELO Cases, No.
23-11535, 2024 WL 4522690, at *1 (11th Cir. Oct. 18,
2024) citing McClain v. Metabolife Int’l, Inc., 401 F.3d
1233, 1239 (11th Cir. 2005). Plaintiffs in these actions
are only required to establish that the agent caused
Plaintiff’s disease (i.e., specific causation).
In the second type of case, the medical community
does not recognize an agent as both toxic and capable
of causing the kind of injury a plaintiff alleges. In this
latter type of case, a plaintiff must establish both
general and specific causation. General causation
asks “whether an agent increases the incidence of
disease in a group and not whether the agent caused
any given individual’s disease.” Id. citing Michael D.
Green et al., Reference Guide on Epidemiology, in
REFERENCE
MANUAL
ON
SCIENTIFIC
EVIDENCE 549, 623 (Fed. Jud. Ctr., 3d ed. 2011).
In toxic-tort actions, plaintiffs prove general
causation through epidemiological evidence, doseresponse relationship, and background risk of disease.
Id. citing Chapman v. Procter & Gamble Distrib.,
LLC, 766 F.3d 1296, 1308 (11th Cir. 2014). More
particularly, the Fifth Circuit holds that “[a] plaintiff
must show ‘[s]cientific knowledge of the harmful level
2
of exposure to a chemical’ to satisfy general
causation.” Prest v. BP Expl. & Prod., Inc., No. 2230779, 2023 WL 6518116, at *3 (5th Cir. Oct. 5, 2023)
(citing Allen v. Pa. Eng’r Corp., 102 F.3d 194, 199 (5th
Cir. 1996).
The general causation standard adopted and
applied by the Fifth and Eleventh Circuits has become
a de facto bar to claims by plaintiffs like Mr. Prest, the
petitioner here, who was exposed to a toxic cocktail of
oil and chemical dispersants while working to cleanup the environmental disaster that resulted when
BP’s Deepwater Horizon exploded off the coast of
Louisiana in 2010.
The scale of the Deepwater Horizon disaster
resulted in the creation of several well-funded
government studies of the health impacts of the spill
on response workers and the impacted communities.
These studies have conclusively established that
individuals who worked on the spill response have
suffered adverse health impacts as compared to
control groups who did not work on the response (i.e.,
general causation), including conditions like those
suffered by Mr. Prest. No reasonable person would
suggest that these studies are junk science.
As detailed infra, however, hundreds of oil spill
response workers like Mr. Prest have been unable to
establish “[s]cientific knowledge of the harmful level
of exposure to a chemical” in the wake of the oil spill
for a number of reasons, including the fact that
sufficient exposure levels—of both kind and
quantity—were not measured during the spill
response.
3
The lack of such quantifiable measurements is
problematic because the chemical exposure that
plaintiffs allege to have caused their damages was a
mix of crude oil and chemical dispersants that were
used at scale for the first time during a spill response.
Moreover, the combination of the oil and dispersant
rapidly volatized in the heat of the southern summer
sun, such that exposure pathways were not only
physical (i.e., by coming into contact with the chemical
mixture), but via inhalation of the volatized mixture.
Because plaintiff’s experts have been unable to
determine harmful levels of exposure to that chemical
mixture, the trial courts in the Fifth and Eleventh
Circuits have summarily denied relief to all the
claimants who opted out of an underlying settlement
framework and pursued their individual claims in
court. Moreover, because appeals of such rulings are
based on an abuse of discretion, the Fifth Circuit has
been unwilling and/or unable to look beyond the rote
application of the general causation rubric that has
been developed post-Daubert for toxic tort cases.
Notwithstanding the de facto bar on recovery for
plaintiffs like Mr. Prest, the studies conducted in the
wake of the Deepwater Horizon disaster have
conclusively established that workers such as Mr.
Prest have suffered disproportionate adverse health
impacts as compared to populations who were not
exposed to the chemical impacts of the oil spill. In
short, there is dependable science establishing
adverse health impacts caused by the oil spill, but no
plaintiff seeking to establish such damages has
survived a motion for summary judgment.
4
Although the present petition arises in the context
of a toxic tort claim, similar issues have arisen are
frequently litigated in claims arising from
pharmaceutical and product liability actions where
district and circuit courts must struggle with the
scope and complexity of their role as gatekeepers to
the admission of complex scientific testimony. Rule
702 of the Federal Rules of Evidence was recently
amended in an effort to clarify that role.
At bottom, however, there are significant
disparities in the ways that the lower and circuit
courts are exercising their roles as gatekeepers and
Petitioner submits that this petition squarely
presents the Court with an opportunity to bring
clarity and uniformity to the type of analysis the lower
courts must perform under Rule 702.
Mr. Prest urges this Court to grant his petition and
reverse.
OPINIONS BELOW
The original opinion of the court of appeals is
unreported but available at 2023 WL 6518116. Pet.
App. 1a-11a. The denial of rehearing en banc is also
unreported. Pet. App. 34a-35a. The opinion of the
United States District Court for the Eastern District
of Louisiana’s granting the motion to exclude
plaintiff’s expert (Pet. App. 31a-33a) and subsequent
motion for summary judgment is reported and
available at 640 F.Supp. 3d 542. Pet. App. 13a-30a.
5
JURISDICTION
The original opinion of the court of appeals was
filed on October 5, 2023. Pet. App. 1a. On July 29,
2024, the court denied rehearing en banc. Pet. App.
34a. This Court has jurisdiction under 28 U.S.C.
1254(1).
STATUTORY PROVISIONS INVOLVED
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if the proponent
demonstrates to the court that it is more likely than not
that:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to 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 expert’s opinion
reflects a reliable application of the principles and
methods to the facts of the case.
The foregoing reflects modifications enacted effective
December 1, 2023, which occurred after the district
court rulings here. The comments to the 2023
6
Amendments conclude with the following observation:
Nothing in the amendment imposes any new,
specific procedures. Rather, the amendment is
simply intended to clarify that Rule 104(a)'s
requirement applies to expert opinions under
Rule 702. Similarly, nothing in the amendment
requires the court to nitpick an expert's opinion
in order to reach a perfect expression of what
the basis and methodology can support. The
Rule 104(a) standard does not require
perfection. On the other hand, it does not
permit the expert to make claims that are
unsupported by the expert's basis and
methodology.
STATEMENT
A.
Factual Background
On April 20, 2010, the oil drilling rig Deepwater
Horizon was operating in the Gulf of Mexico when it
exploded and sank. The tragedy resulted in the largest
oil spill in the history of marine oil drilling operations
(hereinafter referred to as the “BP Oil Spill”). Four
million barrels of oil flowed from the damaged well
before it was finally capped on July 15, 2010—nearly
three full months after the explosion.
In an attempt to combat the effects of the spill, BP
enlisted local fishing vessels and residents in the
Vessels of Opportunity (“VoO’”) program to assist in
spill response efforts. Kirk Prest was a charter
fisherman who lived and operated a fishing and
hunting lodge in south Louisiana located
7
approximately 40 miles from the site of the Deepwater
Horizon explosion. Mr. Prest signed up for the VoO
program and began assisting with clean-up activities
on May 3, 2010—only days after the oil from the BP
Oil Spill began to inundate his fishing grounds and
the Louisiana marshes and coastline.
Kirk Prest’s family has spent generations in south
Louisiana fishing and hunting in the waters that
suffered some of the heaviest impacts of the BP Oil
Spill. As his business was suffering due to the Oil
Spill, Mr. Prest entered into a Master Vessel Charter
Agreement wherein he chartered his bay boat, a 24foot vessel, to BP. The agreement provided that he
would use his bay boat to assist in the recovery effort
and he did so.
Mr. Prest performed clean-up activities between
May 3, 2010 and October 30, 2010. During that time,
he worked six to seven days per week and would
typically work from daylight until after dark, usually
12 to 15 hours per day, with most of that spent out on
the water. The work that Mr. Prest performed was
typically performed in extreme heat and included, but
was not limited to: (i) recovery and capture of wildlife
and placing wildlife in boxes/crates for return to
staging areas; (ii) installation of air cannons to
prevent birds from landing in oiled areas; (iii)
identifying areas heavily impacted by oil and/or
oil/Corexit mixtures; and (iv) transporting personnel
for the state and federal wildlife agencies.
Mr. Prest was exposed to the BP oil and the
oil/dispersant mixture for nearly six months while he
assisted with clean-up efforts. As detailed in the
8
report prepared by Dr. Rachel Jones, an industrial
hygienist, Mr. Prest was regularly covered in oil due
to the handling of oiled wildlife, traversing through
heavily oiled waters to reach that oiled wildlife, and
cleaning his vessel each day after work activities.
Due to the substantial amount of oil that was
released and its proximity to fragile coastal wetlands,
BP was permitted by the US Government to apply
dispersants both aerially and to inject them at the
wellhead.1 This was the first (and only) time that
dispersants had ever been used in a spill response like
this.
Critically, the use of these dispersants changed the
chemical and physical properties of oil, which altered
the transport, fate and potential effects of the oil.2 The
goal of the dispersant use was to increase oil mixing
in the water column and to decrease the potential that
oil slicks on the water surface would contaminate
shorelines.3 Due to the extensive use of dispersants,
epidemiological studies of health impacts suffered by
response workers cleaning up past oil spills are not as
relevant to the BP Oil Spill.
In addition to the chronic impacts associated with
the daily exposure to the oil and dispersant mixture,
and his handling of oiled wildlife, Mr. Prest also had
other experiences that resulted in a significant acute
1 ROA.22-307779-10719.
2 ROA.2230779.10741.
3 ROA.2230779.10741.
9
chemical exposure. Specifically, between May 17 and
May 22, 2010, Mr. Prest was working out of Venice.
He and his crew were travelling in the mid-morning
hours when an aircraft dumped Corexit directly on
them. The exposure was a dense mist that
immediately caused everyone on the vessel to start
coughing and to experience burning eyes/sinus, along
with shortness of breath.
Before the BP oil spill, Mr. Prest was 42-years old
and he enjoyed perfect 20/20 vision. He had not
previously experienced trouble with his eyes.
Beginning in September 2010, however, Mr. Prest
began to experience serious headaches, blurred vision,
and even had a blackout event. He sought medical
attention, and in October 2010, his eye doctor, Dr.
Robert Ross, advised him to stop working on spill
response efforts. Even though his business had been
decimated by the Oil Spill, Mr. Prest took his doctor’s
advice. He was eventually diagnosed with central
serous retinopathy (CSR).
Over the following years, Mr. Prest has continued
to have eye problems, including severe headaches and
ocular pain. Beginning in 2016, Mr. Prest began
treating with Dr. Tere Vives, a board-certified
ophthalmologist with a specialization in neuroophthalmology. Back in 2017, she ordered MRIs of Mr.
Prest’s brain, orbit, and face with contrasts.
Beginning in the latter part of 2021, Mr. Prest began
experiencing memory problems and blurred vision
and his pre-existing pain began to substantially
worsen.
10
At the end of 2021, Mr. Prest returned to Dr. Ross
for multiple visits that lasted into the first part of
2022. Once it became evident that Mr. Prest’s current
issues extended beyond the CSR diagnosis, Mr. Prest
returned to Dr. Vives in Spring 2022. In the notes
from that visit, Dr. Vives noted that Mr. Prest had
recently been suffering from a progressive loss of
eyesight, ocular pain, and mild optic nerve swelling.
As detailed infra, Mr. Prest’s treatment has been
ongoing and he underwent serious and substantial
testing (i.e., multiple MRIs and a spinal tap) in an
effort to evaluate and diagnose his condition. These
symptoms are all related to his initial exposure to the
oil and dispersant.
B. Procedural Background
This case was originally part of multidistrict
litigation (“MDL”) pending in the United States
District Court for the Eastern District of Louisiana.
Mr. Prest personally filed a “Short Form Joinder”
in the United States District Court for the Eastern
District of Louisiana on April 21, 2011, which resulted
in him being named as a plaintiff in the MDL. He
opted out of the medical benefits class of the
supervised settlement reached with BP on, or about,
October 30, 2012. Mr. Prest subsequently filed a
complaint in compliance with Pretrial Order No. 31,
which initiated the present suit on April 12, 2017.
Mr. Prest also complied with Pretrial Order No. 66,
which required him to disclose the nature of the work
he performed, to identify his treating physicians, and
11
to detail the nature of his exposure. Mr. Prest’s PTO
66 submission included the following in response to an
inquiry asking him to describe “the circumstance(s) in
which your exposure to the oil spill and/or chemical
dispersant occurred:”
Direct exposure of Corexit chemicals 9500 &
9527 sprayed from plane, as well as massive
amounts of oil [and] chemicals ingested
travelling through rough waters, and from
pelicans flapping oil in eyes, skin, face, etc.
The parties exchanged discovery while the matter
was consolidated within the MDL until the case was
severed and re-allotted on April 13, 2021. The Court’s
Order of that date provides a detailed history of the
multi-district litigation.
Mr. Prest’s case was one of more than 800
individual B3 cases that were severed and reallotted
within the Eastern District of Louisiana and other
federal courts. After reallotment, the trial court held
a scheduling conference in November 17, 2021, and set
the matter for trial on December 19, 2022.
Although Mr. Prest’s eye problems were not
common amongst oil spill first responders, his other
medical conditions (i.e., chronic rhinosinusitis,
headaches, eye pain, and dermatitis) were similar to
other plaintiffs who had similar exposure levels to the
oil and chemical dispersants in the aftermath of the
BP Oil Spill disaster. Mr. Prest retained Dr. Jerald
Cook and Dr. Rachael Jones to establish the link
between the injuries he suffered and his work on the
Oil Spill, in addition to his treating physicians, Dr.
12
Robert Ross and Dr. Tere Vives, who treated his eye
and neurological issues.
BP filed a Motion in Limine to Exclude the
Causation Opinions of Dr. Cook, which was granted
by the trial court. BP subsequently filed a Motion to
Strike and Exclude the Medical Causation Opinions of
Plaintiff’s Treating Physician, Dr. Robert Ross, for
Failure to Comply with FRCP 26(a)(2)(B) and FRE
702 and a Motion for Summary Judgment. Notably,
BP never deposed any of Mr. Prest’s treating
physicians. The trial court resolved the motions in
favor of BP and subsequently entered a judgment
dismissing Mr. Prest’s case. An appeal to the United
States Fifth Circuit Court of Appeal followed.
The Fifth Circuit denied Mr. Prest’s appeal on
October 5, 2023.
He filed timely Petitions for
Rehearing and for Rehearing En Banc, which were
denied almost a year later, on July 29, 2024.
In order to provide pertinent context to the issues
presented by this petition, the following outlines: (1)
the trial court’s rulings; (2) why Dr. Cook’s opinions
were not junk science; and (3) how the Fifth Circuit’s
opinion undermines Rule 702 and Daubert.
1. The Trial Court’s Ruling
The trial court granted a Daubert motion in limine
to exclude the general causation opinions Dr. Cook.4
In a two-page ruling (Pet. App. 31a-33a), the trial
4 ROA.22-30779.10615.
13
court found that “Defendants’ motion here is nearly
identical to the Daubert motions regarding Cook filed
by Defendants, and granted by this Court, in other B3
cases.”5 The trial court cited other B3 cases and,
without further analysis, granted BP’s motion “for the
reasons stated in the Order & Reasons issued in those
cases.”6 The reasons provided in the other cases found
that Dr. Cook failed to establish a harmful level of any
chemical to which [the claimant] was allegedly
exposed and that such “failure to identify the dose of
the toxic chemicals necessary to cause any of the
complained-of health effects weighs heavily in favor of
exclusion.”7 The trial court focused on Dr. Cook’s
inability to provide quantitative dose-response data
and ruled as follows:
[I]t is irrelevant that there is (apparently) no
dose-response data related to the BP oil spill
(regardless of the alleged reason). The point of
an expert opinion on general causation is to
explain whether the exposure to a particular
chemical is capable generally of causing a
certain health issue in the general population.
It is not dependent on data from the particular
incident at issue. The law is clear. Because
identification of the harmful level of exposure
to a chemical is one of the “minimal facts
necessary to sustain the plaintiff's burden in a
5 Id.
6 ROA.22-30779.10616.
Carpenter v. BP Expl. & Prod. Inc., 17-3645, 2022 WL
2757416, at *6 (E.D. La. July 14, 2022).
7
14
toxic tort case,” Allen, 102 F.3d at 199, and
Cook has not provided any such identification,
his report is unreliable and thus his opinions
are inadmissible. Accordingly, BP's motion in
limine to exclude Cook's testimony must be
granted.8
In addition to the two-sentence order adopting the
prior rulings, the trial court’s Order included the
following footnote in this case:
Dr. Cook updated his report on September 30,
2022. R. Doc. 40-5. The Court has reviewed the
new report and concludes that it does not cure
the previously identified deficiencies in Cook’s
prior reports; specifically, the September 30
report does not provide admissible general
causation opinions. Id. Prest admits in his
opposition memorandum that applying the
Court’s prior reasoning in similar motions to
this one would lead to the same result, namely,
exclusion of Cook’s opinions. R. Doc. 44 at 6.
Prest advocates for a different approach that
ignores Fifth Circuit toxic tort precedent and
blames Defendants for the lack of doseresponse data. Id. at 6-25. The Court is not
persuaded by these arguments.9
The trial court reasoned that because there was no
dose-response data available, its analysis ended there.
8 Id. at 6. Emphasis added.
9 ROA.22-30779.10615.
15
In its footnote, the trial court acknowledged that Mr.
Prest outlined a different approach that did not
require him to identify the harmful level of exposure
to a chemical to establish general causation, but the
trial court dismissed such arguments with a
conclusory finding that failed to address the substance
of the arguments. Notwithstanding the Fifth Circuit’s
precedent, the trial court abdicated its role of
gatekeeper pursuant to Rule 702.
2. Dr. Cook’s Opinion was not junk science.
Dr. Cook is a retired Navy physician with a
master's degree in environmental toxicology. He is a
fellow of the American College of Occupational and
Environmental Medicine and board-certified in
occupational medicine, public health, and general
preventative medicine. The BP Defendants did not
challenge his qualifications to testify as a medical
expert in toxicology, but did seek to exclude his
opinion based on the methodology he employed to
reach his opinions.
Dr. Cook’s report also included a specific causation
analysis that applied the Bradford Hill criteria and
expressly relied upon exposure data generated by Dr.
Rachel Jones, Mr. Prest’s expert industrial hygienist.
Had the trial court fulfilled its proper role it would
have considered the substance of Dr. Cook’s opinions,
including an analysis of his application of the
Bradford Hill criteria to support his reliance on the
GuLF STUDY and the Coast Guard Cohort studies.
As the following details, Dr. Cook’s causation opinions
were reliable and relevant for the following reasons:
16
(1) the studies are state-of-the-art science; (2) they are
peer reviewed; (3) they relate specifically to the BP Oil
Spill and the worker population of which Mr. Prest is
a member; (4) they have been recognized and adopted
as reliable science by some of the world’s leading
experts; and (5) they were developed by recognized
national scientific institutions at a cost of over $70
million.
Both the GuLF STUDY10 and Coast Guard
Cohort11 study programs are dedicated to studying the
exposure and health outcomes of BP Oil Spill
responders. The publications of these programs are
the best, state-of-the-art science on which to base
causation opinions related to BP Oil Spill worker
exposures. As detailed in Dr. Cook’s report, Mr.
Prest’s
health
conditions
include
chronic
rhinosinusitis, headaches, eye pain, and dermatitis.12
As also discussed in Dr. Cook’s report, these
conditions are occurring at statistically significant
levels based among BP Oil Spill responders according
to the GuLF STUDY and Coast Guard Cohort
published studies. This is the essence of general
causation.
When it became clear that the trial court was
unwilling to look beyond the fact that Dr. Cook did
identify the harmful level of exposure to a chemical as
one of the “minimal facts necessary to sustain the
10 ROA.22-30779.9956-9966.
11 ROA.22-30779.9939-9956.
12 ROA.22-30779.9999-10003.
17
plaintiff's burden in a toxic tort case,” Allen, 102 F.3d
at 199, counsel undertook additional efforts to
persuade the court that Dr. Cook’s opinions satisfied
the requirements of Rule 702 and Daubert, which
primarily seek to prevent the introduction of junk
science to the jury.
In furtherance of that effort, counsel for Mr. Prest
obtained an affidavit from Linda Birnbaum, Ph.D.
who was the Director of the National Institute of
Environmental Health and Sciences (“NIEHS”) from
2009 to 2019.13 Dr. Birnbaum was the NIEHS Director
at the time of the BP Oil Spill.14
As detailed in Dr. Birnbaum’s affidavit, NIEHS
scientists began designing research programs to study
the exposure and long-term health effects on BP Oil
Spill responders under Dr. Birnbaum’s leadership as
the spill response was ongoing.15 This research
program ultimately became the GuLF STUDY
program, which is still conducting research and
publishing science regarding BP Oil Spill responder
chemical exposures and the associated long-term
health effects.
The GuLF STUDY program has been regularly
publishing peer reviewed exposure and epidemiology
studies on BP Oil Spill responders since 2014. Dr.
Cook relied heavily on the exposure and
13 ROA.22-30799.11522-11528.
14 ROA.22-30799.11523.
15 Id.
18
epidemiological literature being published by the
GuLF STUDY program, in addition to the exposure
and epidemiological literature published by the Coast
Guard Cohort study program.16
The GuLF STUDY devoted substantial effort to
characterizing BP Oil Spill response worker
exposures. The GuLF STUDY researchers utilized
the extensive monitoring that was done by BP’s
contractors and federal agencies. The GuLF STUDY
exposure assessment work took over a decade to
complete and has involved input from experts from a
range of scientific disciplines. Per Dr. Birnbaum, the
GuLF STUDY exposure assessment and epidemiology
are the current, best, and state-of-the-art scientific
literature on the exposure and health effect outcomes
of BP Oil Spill responders.”
Dr. Birnbaum also addressed the suggestion that
it was possible to quantify a BP Oil Spill responder’s
specific level of exposure to specific chemicals. She
stated that, based on the data that was collected
during the BP Oil Spill response, “it is not plausible”
to assert that exposure at a specific level to a specific
chemical can be quantified.17 She also attested that
the proposition that utilizing “studies of other oil spills
and non-oil spill related studies of exposure to crude
oil” to quantify exposure is also “not plausible.”18 She
The Coast Guard Cohort study program has also been
funded by the National Institutes of Health, through the NIEHS.
https://grantome.com/grant/NIH/R01-ES020874-05
16
17 ROA.22-30779.11527-11528.
18 Part of the problem with using other oil spill studies is
19
continued that if such a quantitative assessment were
possible, “the GuLF STUDY scientists with all of their
expertise, time, and funding would have done it.”19
Dr. Birnbaum’s statements discredit the notion
that it is possible to quantify BP responder exposure
levels to specific chemicals. Yet this is the standard to
which the trial court in this case held Dr. Cook.
Critically, Dr. Birnbaum explained that for such a
quantification to be done, there would have had to
have been read time biomonitoring (e.g., blood testing,
urine testing, and dermal wipe testing) of the workers
during the oil spill response. Such biomonitoring and
dermal exposure monitoring were ever done for the BP
Oil Spill responders.
Accordingly, Dr. Cook utilized the peer-reviewed
exposure and epidemiological studies published
through the GuLF STUDY and Coast Guard Cohort
study programs. In addition to peer review of the
literature, both programs underwent National
Institutes of Health institutional review. Both
programs are dedicated solely to the study of BP Oil
Spill clean-up workers like Mr. Prest. Thus, Mr. Prest
is a member of the same exposure group being studied
in the peer reviewed science on which Dr. Cook relies
that the weathered crude oil from the DWH is a mixture of
approximately 10,000 different chemicals and its composition is
subject to change by mixing with sea water, weathering
processes and the use of dispersants. Id. at 6. See
https://ph.ucla.edu/faculty/jones
19 ROA.22-30779.11528.
20
to support his opinions. Neither the GuLF STUDY
nor the Coast Guard Cohort use quantitative exposure
assessment because there was no exposure data
recorded during the spill response on which
quantitative exposure assessments could validly be
based. Because of the dearth of such data, these
programs have utilized a qualitative measure of
exposure.
Dr. Cook’s general causation methodology follows
that of the of the GuLF STUDY and the Coast Guard
Cohort, both of which use qualitative measures of
exposure. Nonetheless, the trial court excluded Dr.
Cook’s opinion because he did not provide a quantified
exposure measure to a specific chemical at a specific
level for his dose calculation. As discussed supra, this
requirement is not scientifically possible. Nor does it
comport with the methodology utilized in the peerreviewed, published scientific literature which has
also been subject to institutional review in compliance
with the procedures of the NIH for the very same spill
responder population of which Mr. Prest is a member.
It is simply not reasonable to hold Dr. Cook’s
causation opinions to a level of scientific rigor which
is not even applicable to the scientific literature
published by the top world’s top exposure and
epidemiology scientists on the population of BP Oil
Spill response workers. A testifying expert can show
no better evidence of methodological reliability and
faithfulness to the scientific method than to strictly
follow the methods prescribed in the peer-reviewed
and published literature. Moore v. Ashland Chem.
Inc., 151 F.3d 269, 276 (5th Cir. 1998). And this is
exactly what Dr. Cook did by using the exposure
21
assessment criteria of the GuLF STUDY and the
Coast Guard Cohort. Showing reliability “requires
some objective, independent validation of the expert's
methodology.”20 There is likely no more objective or
independent source of validation of Dr. Cook’s reliance
on the GuLF STUDY and Coast Guard Cohort than
the statements of Dr. Birnbaum. When the subject
plaintiff is a member of the cohort studied in the peerreviewed and published literature, what more can a
causation expert do methodologically than deploy that
literature in support of their opinions?
3. Fifth Circuit Precedent is Flawed
The object of Daubert is “to make certain that an
expert, whether basing testimony on professional
studies or personal experience, employs in the
courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant
field.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167.
The Fifth Circuit, however, has gone beyond the
requirements of Daubert and has effectively made it
impossible for a plaintiff to survive summary
judgment in certain scenarios. More specifically, the
Fifth Circuit requires a plaintiff to provide “scientific
knowledge of the harmful level of exposure to a
chemical, plus knowledge that the plaintiff was
exposed to such quantities, [as] minimal facts
necessary to sustain [a] plaintiff’s burden in a toxic
tort case.” Allen, at 199 citing Wright v. Willamette
Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996).
20 Id.
22
The sole precedential authority the district court
cited for its “harmful dose” requirement was this
Court’s decision in Allen. The fault that this Court
found with the expert testimony in the relevant
portion of Allen was that, because the experts lacked
“evidence of the level of [the plaintiff’s] exposure” to a
suspected carcinogen, they had an insufficient factual
basis from which to draw a reliable conclusion as to
specific causation. Id. at 198.
It was in this context that the Court cited Wright
v. Willamette Industries, Inc., for the proposition that
“[s]cientific knowledge of the harmful level of
exposure to a chemical, plus knowledge that the
plaintiff was exposed to such quantities, are minimal
facts necessary to sustain the plaintiff[’s] burden in a
toxic tort case.” Allen, 102 F.3d at 199. Read in
context, nothing about this statement suggests that
an expert opinion on general causation is unreliable if
it fails to pinpoint with quantitative precision the
threshold at which exposure to a particular substance
becomes harmful.
Rather, Allen echoes Wright’s modest observation
that a finding of specific causation must rest on
evidence that “the plaintiff was exposed to levels of [a
substance] that are known to cause the kind of harm
that the plaintiff claims to have suffered.” Wright, 91
F.3d at 1107. Indeed, even in the specific-causation
context, Wright refused to “require a mathematically
precise table equating levels of exposure with levels of
harm” and demanded no more than “evidence from
which a reasonable person could conclude that a
defendant’s emission has probably caused a particular
23
plaintiff the kind of harm of which he or she
complains.” Id.
Notably, in the Fifth Circuit’s decision in Moore v.
Ashland Chemical, 151 F.3d at 287-288 (5th Cir.
1998), a dissent joined by three judges forewarned of
the of the wide “lethal swath” that could result from
the seemingly non-controversial rule requiring toxic
tort experts proffer “scientific knowledge” regarding
the harmful level of exposure. Quoting the Federal
Reference Manual on Scientific Evidence, the
dissenting judges observed that “Only rarely are
humans exposed to chemicals in a manner that
permits a quantitative determination of adverse
outcomes.
Human exposure occurs most frequently in
occupational settings where workers are exposed to
industrial chemicals like lead or asbestos; however,
even under these circumstances, it is usually difficult,
if not impossible, to quantify the amount of exposure.”
Moore quoting Federal Judicial Center, REFERENCE
MANUAL ON SCIENTIFIC EVIDENCE, p. 187
(1994))
If it is difficult, if not impossible, to quantify
exposure
amounts
in
standard
industrial
environments, such efforts are exponentially more
difficult in emergency situations. While Daubert
sought to ensure scientific reliability while
maintaining flexibility, the toxic tort jurisprudence as
applied in the Fifth Circuit has created a bright-line
rule that permits the lower courts to bypass the
difficult work of engaging in a Daubert analysis if they
can determine that the expert fails to identify the
24
dose of the toxic chemicals necessary to cause the
complained-of health effects, notwithstanding that
there is substantial non-quantitative evidence
establishing that an agent increases the incidence of
disease in a group. This has transformed the trial
court’s role from a gatekeeper that is tasked with
ensuring scientific rigor into a categorical bar to
recovery in cases such as the present.
REASONS FOR GRANTING THE PETITION
Concerns about the impact of unreliable science on
a litigant’s right to a fair trial animated the Supreme
Court’s holdings in the Daubert trilogy, supra.
Emphasizing “the ‘gatekeeper’ role of the trial judge
in screening [scientific] evidence” for reliability,
Joiner, 522 U.S. at 142, “Daubert attempts to strike a
balance between a liberal admissibility standard for
relevant evidence on the one hand and the need to
exclude misleading ‘junk science’ on the other.” United
States v. Lavictor, 848 F.3d 428, 441 (6th Cir. 2017);
see also McKiver v. Murphy-Brown LLC, 980 F.3d 937,
1008 (4th Cir. 2020) (Daubert “attempted to ensure
that courts screen out junk science”) (internal
quotation marks omitted); United States v. MachadoErazo, 47 F.4th 721, 734 (D.C. Cir. 2018) (Daubert was
“spawned by ‘junk science’ masquerading as science”).
Concurring in Kumho Tire, Justice Scalia
cautioned “that the discretion [the Court] endorses —
trial-court discretion in choosing the manner of
testing expert reliability — is not discretion to
abandon the gatekeeping function . . . [or] to perform
the function inadequately.” 526 U.S. at 158-59 (Scalia,
J., concurring). “Rather, it is discretion to choose
25
among reasonable means of excluding expertise that
is fausse and science that is junky.” Id. at 159.
The Fifth Circuit’s precedent creates a bright-line
rule that undermines Daubert and its progeny, along
with Rule 702. This case presents this Court with an
opportunity to correct the abuse of discretion that
occurred below and to provide better guidance to the
lower courts regarding their gatekeeping functions
under Rule 702. The following details why allowing
the Fifth Circuit holdings to tend will create perverse
incentives that harm first responders, then it details
how this case offers the Court an opportunity to
reconsider the standard of review that applies to
Daubert reviews and to better elucidate the type of
analysis that must be conducted under Daubert.
A.
Allowing general causation standard to
stand will create perverse incentives that
will harm first responders.
The dismissal of Mr. Prest’s claims—and
potentially hundreds like him—will result in a
windfall to the BP Defendants at the expense of
hundreds of claimants like Mr. Prest who are
suffering as a result of the chemical exposures they
endured during the spill response. These rulings are
effectively the canary in the coal mine.
The potential problems will be particularly acute
in emergency scenarios, where immediate life-saving
actions take precedence over documenting multiple
chemical interactions and exposure pathways that
may occur simultaneously. More specifically, The
Courts’ requirement that "[a] plaintiff must show
26
'[s]cientific knowledge of the harmful level of exposure
to a chemical' to satisfy general causation" becomes
particularly problematic in industrial accidents
involving multiple chemical releases will incentivize
companies not to collect vital sample data.
Consider a massive industrial fire where rising
temperatures trigger multiple container explosions. A
firefighter seeking to establish general causation
must demonstrate not merely that they were exposed
to harmful chemicals, but must provide scientific
knowledge establishing the specific harmful level for
each chemical present. This burden becomes
exponentially more complex when multiple chemicals
combust and combine.
The firefighter would need to present scientific
studies establishing harmful levels not just for
individual chemicals, but for the unique chemical
combinations created through combustion. Such
studies likely do not exist, as the infinite potential
combinations of chemicals and conditions make it
impossible to have pre-existing scientific literature
establishing harmful levels for every possible
interaction. Moreover, many combustion products
may be novel compounds formed under hightemperature conditions, for which no established
scientific knowledge of harmful levels exists at all.
The scientific literature rarely, if ever, contains
studies examining such specific combinations under
real-world conditions. Regardless, studies in
controlled laboratory settings, cannot account for the
synergistic effects of multiple chemicals interacting
under unusual environmental conditions.
27
The general causation requirement as it was
applied to Mr. Prest, and hundreds like him, creates
an insurmountable barrier where novel agents and
exposure routes are involved, as it demands scientific
knowledge that often cannot exist due to the infinite
possible combinations of chemicals, exposure routes,
and environmental conditions. The standard requires
a level of scientific certainty that is fundamentally at
odds with the realities of toxic exposure in emergency
scenarios and complex environmental releases and
represents a judicial overreach that goes well beyond
Daubert's goal of weeding out junk science.
The Fifth Circuit's stringent causation standard
has created a particularly cruel irony for Vessels of
Opportunity (VoO) workers like Mr. Prest who
responded to the BP Oil Spill. These were often
multigenerational fishermen who, precisely because
of their extensive maritime experience and intimate
knowledge of Gulf waters, were recruited to assist in
response efforts in the most heavily impacted areas.
Their expertise meant they were frequently
deployed to the worst-contaminated zones, where oil,
dispersants, and weather conditions created a toxic
soup of chemicals. The VOO workers' valuable
knowledge of local waters and weather patterns - the
very expertise that made them essential to the
response - led to their deployment in areas where
exposure was likely highest and most complex.
Yet under the Fifth Circuit's toxic tort precedent,
these workers face nearly impossible evidentiary
burdens precisely because of the intensity and chaos
of their exposure scenarios. They would need to
28
provide scientific knowledge of harmful levels for not
just crude oil, but also for dispersants like Corexit,
their breakdown products, and the countless chemical
combinations created when these substances mixed in
Gulf waters and aerosolized in sea spray.
Most cruelly, those VoO workers who spent the
most time in the most heavily contaminated areas,
often working through severe weather conditions to
contain the spill, face the highest barriers to recovery
precisely because the extreme nature of their work
environment. The result is a perverse legal framework
where the responders who sacrificed the most,
working in the most dangerous conditions to mitigate
one of the nation's worst environmental disasters, are
effectively barred from seeking legal remedy for their
injuries.
B.
The questions presented are vitally
important and squarely presented.
The present writ application squarely presents
important issues in a unique context and point in in
time. It has been more than 20 years since this Court
squarely addressed the admission of expert testimony
at a broad level. The recent updates to Rule 702, which
serve to re-emphasize the trial court’s role as
gatekeeper, make it timely.
Further, there are several things about the
underlying posture of the present matter that serve to
make the present application an attractive candidate
for this Court’s attention. First, the widespread
science supporting the health impacts on those
workers who were exposed during their work on BP’s
29
Deepwater Horizon spill is well documented by
comprehensive studies conducted by world-class
scientists. This is not a case where a plaintiff relied on
junk science.
Notwithstanding, the trial court and the Fifth
Circuit dismissed the claims of Mr. Prest—and
hundreds of workers who were similarly situated to
him without any real consideration of the extensive
work performed by Dr. Cook and similar experts. A
review of the underlying record makes clear that the
trial court’s consideration—and the Fifth Circuit’s
review—of Dr. Cook’s report was cursory, at best. It
reviewed the report to determine whether Dr. Cook
provided quantified exposure levels of oil and
dispersants that cause injuries to the general
population. When it determined that Dr. Cook failed
to provide such data—even though top scientists could
not provide such data—its analysis ended.
Critically, BP did not complain about Dr. Cook’s
credentials, nor make any extensive critique of his
underlying methods. There was no Daubert hearing
held by the trial court, nor any opportunity for oral
argument in the trial or appellate courts, despite
repeated requests by Mr. Prest for such. Likewise, the
Fifth Circuit failed to engage Mr. Prest’s arguments
because it determined that the trial court did not
abuse its discretion—despite the fact that it exercised
no real discretion.
1. Offer Guidance re Gatekeeper Role
The bench and bar would benefit from this Court’s
input and guidance on the type of analysis that must
30
be performed by the trial court in the course of
exercising its gatekeeping function. In that regard,
there are multiple examples of courts that have
embraced their rules as a gatekeeper of scientific
evidence and conducted the type of thorough analysis
that demonstrates a thorough engagement and
understanding of the gatekeeping function.
One such case is Chief Judge Nancy Rosenstengel’s
recent opinion in which she evaluated an experts
proffered opinion in In re Paraquat Products Liab.
Litig., No. 3:21-MD-3004-NJR, 2024 WL 1659687, at
*6 (S.D. Ill. Apr. 17, 2024). The 97-page Memorandum
and Order—the court’s “Daubert Order”—is a model
for how district courts should assess the reliability of
proffered expert testimony “on the critical issue
general causation”—in that case, testimony “offering
an opinion that occupational exposure to paraquat,”
an extensively studied, U.S. EPA-regulated herbicide,
“can cause Parkinson’s disease.”
The district court provides a textbook example of
how judges are to assess expert evidence under this
Rule 702. The judge embraced her “gatekeeper” role,
applied the “more likely than not” standard, and
determined whether each “expert’s opinion reflects a
reliable application of the principles and methods to
the facts of the case.” Ord. at 8-9, n.8 (citing Robinson
v. Davol, Inc., 913 F.3d 690, 696 (7th Cir. 2019)
(instructing judges to be “vigorous gatekeeper[s]”)). To
do so, the trial judge took extensive briefings from the
parties, held a four-day hearing on the proffered
expert testimony, and issued a 97-page ruling setting
forth detailed reasons that elucidated her
understanding and consideration of the issues.
31
2. Standard of Review must Change
The appellate standard of review for Rule 702
rulings is abuse of discretion. Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508
(1997). “This standard is not monolithic: within it,
embedded findings of fact are reviewed for clear error,
questions of law are reviewed de novo, and judgment
calls are subjected to classic abuse-of-discretion
review.” Ungar v. Palestine Liberation Org., 599 F.3d
79, 83 (1st Cir.2010); see also Baker v. Dalkon Shield
Claimants Trust, 156 F.3d 248, 251–52 (1st Cir.1998)
(noting these three dimensions of the abuse of
discretion standard in reviewing exclusion of expert
testimony).
“While meticulous Daubert inquiries may bring
judges under criticism for donning white coats and
making determinations that are outside their field of
expertise, the Supreme Court,” as reflected in Rule
702, “has obviously deemed this less objectionable
than dumping a barrage of questionable scientific
evidence on a jury, who would likely be even less
equipped than the judge to make reliability and
relevance determinations and more likely than the
judge to be awestruck by the expert’s mystique.”
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1310
(11th Cir. 1999).
In those cases where the district judge holds
hearings and fulfills its gate-keeping role, there is no
reason that the abuse of discretion standard should
not apply. In cases such as Mr. Prest’s, however, the
abuse of discretion review unnecessarily limits the
Court of Appeal from engaging in the substance of a
32
Rule 702 rulings. Daubert by its nature was intended
to be flexible and to apply to the myriad of
circumstances that it might apply. Likewise, the
review of 702 rulings would benefit from similar
flexibility, such that the Circuit courts are permitted,
if not encouraged, to conduct reviews of 702 rulings de
novo if it is clear from the record that the trial court
did not exercise any significant discretion in fulfilling
its gatekeeping role.
CONCLUSION
Mr. Prest urges this Court to grant his writ of
certiorari.
Respectfully submitted,
TIMOTHY J. FALCON
Counsel of Record
Falcon Law Firm
5044 Lapalco Boulevard
Marrerro, LA 70072
(504) 341-1234
tim@falconlaw.com
Counsel for Petitioner
October 28, 2024
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR T H E FI F T H CIRCU I T, FILED
OCTOBER 5, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — JUDGMENT OF THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA,
FILED NOVEMBER 10, 2022 . . . . . . . . . . . . . . . . 12a
APPENDIX C — ORDER AND REASONS OF THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA,
FILED NOVEMBER 9, 2022 . . . . . . . . . . . . . . . . . 13a
APPENDIX D — ORDER AND REASONS OF THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA,
FILED OCTOBER 18, 2022 . . . . . . . . . . . . . . . . . . 31a
APPENDIX E — DENIAL OF REHEARING
OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
FILED JULY 29, 2024 . . . . . . . . . . . . . . . . . . . . . . . 34a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT,
FILED OCTOBER 5, 2023
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 22-30779
KIRK PREST,
Plaintiff-Appellant,
versus
BP EXPLORATION & PRODUCTION,
INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:10-MD-2179, 2:17-CV-3409
October 5, 2023, Filed
Before Stewart, Dennis, and Wilson, Circuit Judges.
Per Curiam:*
* This opinion is not designated for publication. See 5 th Cir.
R. 47.5.
2a
Appendix A
The district court excluded the causation opinions
of Kirk Prest’s medical experts and granted summary
judgment in favor of Defendants (collectively, BP). Because
Prest’s medical experts failed to show general causation,
we affirm.
I.
This is a toxic tort case arising from Prest’s exposure
to crude oil and dispersants while assisting with cleanup
of the Deepwater Horizon oil spill. Prior to the disaster,
Prest operated a fishing and hunting charter business
near Venice, Louisiana.1 The oil spill “decimated” Prest’s
business. Consequently, he chartered his boat to BP and
agreed to help with the cleanup. From May 3 to October 30,
2010, 2 Prest performed a variety of tasks for BP, including
wildlife search and rescue, oil search and reporting, and
monitoring bird scare cannons. During that time, Prest
was continuously exposed to crude oil and dispersants
in the water and the air. In one specific incident, an
aircraft sprayed Prest and his crew with dispersant.
They immediately started coughing and gasping for air
and experienced a burning sensation in their eyes and
1. We review a summary judgment de novo, construing “all
facts and inferences in the light most favorable to the nonmoving
party. . . .” Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005).
Accordingly, the facts are primarily drawn from Prest’s complaint
and his responses in opposition to BP’s motions.
2. The district court stated that Prest performed cleanup work from May 16 to November 26, 2010. Because the dates
are immaterial to Prest’s claims, we use the dates from Prest’s
complaint and brief.
3a
Appendix A
sinuses. Prest did not seek medical attention after the
incident, however.
Before the oil spill, Prest had “perfect 20/20 vision”
and had not experienced any problems with his eyes.
However, in September 2010, Prest began experiencing
headaches and blurred vision. His ophthalmologist, Dr.
Robert Ross, advised him to stop working on the cleanup
effort. Prest took Ross’s advice and stopped performing
cleanup work on October 30. Shortly thereafter, Ross
diagnosed Prest with Central Serous Retinopathy (CSR). 3
Since then, Prest’s condition has progressively worsened.
In 2021 and 2022 Prest began experiencing memory
problems, blurred vision, and increased ocular pain. He
returned to Dr. Ross, who determined Prest’s issues
extended beyond his CSR diagnosis. In spring 2022, Prest
visited Dr. Tere Vives, a specialist in neuro-ophthalmology.
She noted that Prest had recently been suffering from a
progressive loss of eyesight, ocular pain, and mild optic
nerve swelling, and she determined he might need surgery
to remove a cyst in his sinuses. She also testified that she
could not determine whether his current conditions were
caused by his cleanup work until his condition stabilized.
3. CSR occurs when fluid builds up behind the retina. This
can cause the retina to detach, leading to vision loss. See Cleveland
Clinic, Central Serous Retinopathy, my.clevelandclinic.org/health/
diseases/24335-central-serous-retinopathy, (last visited October
4, 2023).
4a
Appendix A
In 2017, Prest filed this lawsuit against BP. 4 He
alleged his exposure to crude oil and dispersants during
the cleanup effort caused his CSR, as well as other long
term health issues. Additionally, he alleged he suffered
“temporary injuries” and emotional distress when he was
sprayed with dispersant. Prest designated Dr. Ross and
Dr. Jerald Cook to testify as to causation in support of
his exposure claim.
BP moved to exclude Dr. Ross’s and Dr. Cook’s
causation opinions and then moved for summary judgment.
The district court granted the motions. It found that
Ross and Cook failed to establish general causation, and
BP was thus entitled to summary judgment as to Prest’s
exposure claim. Additionally, it found that BP was entitled
to summary judgment as to Prest’s emotional distress
claim because he was not within a “zone of danger” while
he was performing cleanup work. Prest timely appealed.
II.
We review a district court’s exclusion of expert
testimony for abuse of discretion and “do not disturb
the court’s decision unless it is ‘manifestly erroneous.’”
Smith v. Chrysler Grp., L.L.C., 909 F.3d 744, 748 (5th
Cir. 2018) (quoting In re Complaint of C.F. Bean L.L.C.,
4. Prest originally filed a “Short Form Joinder” in 2011 to
join the multi-district litigation arising from the oil spill. In 2017,
the presiding judge ordered the plaintiffs who had not settled to
file individual lawsuits. After consolidated discovery, the presiding
judge severed the cases, and Prest’s case was assigned to Judge
Barry Ashe.
5a
Appendix A
841 F.3d 365, 369 (5th Cir. 2016)). We review a summary
judgment de novo, applying the same legal standards
as the district court. Certain Underwriters at Lloyd’s
London v. Axon Pressure Prods. Inc., 951 F.3d 248, 255
(5th Cir. 2020). Summary judgment is appropriate 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). “We construe
all facts and inferences in the light most favorable to the
nonmov[ant]. . . .” Murray v. Earle, 405 F.3d 278, 284
(5th Cir. 2005). “We may affirm the district court’s grant
of summary judgment on any ground supported by the
record and presented to the district court.” Wantou v.
Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 430 (5th Cir.
2022).
We first address Prest’s exposure claim and then his
emotional distress claim.
A.
Our caselaw requires a plaintiff to show both general
and specific causation in toxic tort cases. See, e.g., Knight
v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.
2007). “General causation is whether a substance is
capable of causing a particular injury or condition in the
general population, while specific causation is whether a
substance caused a particular individual’s injury.” Johnson
v. Arkema, Inc., 685 F.3d 452, 468-69 (5th Cir. 2012)
(quoting Knight, 482 F.3d at 351). “Evidence concerning
specific causation in toxic tort cases is admissible only
as a follow-up to admissible general-causation evidence.”
6a
Appendix A
Knight, 482 F.3d at 351. A plaintiff must show “[s]cientific
knowledge of the harmful level of exposure to a chemical”
to satisfy general causation. Allen v. Pa. Eng’r Corp., 102
F.3d 194, 199 (5th Cir. 1996). Because neither Dr. Cook
nor Dr. Ross satisfied the general causation requirement,
the district court did not abuse its discretion by excluding
their testimony.
Prest does not contest that Cook and Ross failed to
offer scientific evidence of the level of exposure to crude oil
or dispersant that would cause CSR—or any of his other
medical conditions—in the general population. Rather, he
contends the district court erred “when it mechanically
applied the Fifth Circuit’s toxic tort jurisprudence.” He
asserts the district court should have applied—and we
should apply on appeal—a different standard based on
the “unique circumstances” of the BP oil spill. Prest’s
arguments fail for two reasons.
First, a district court does not abuse its discretion
when it properly analyzes the law and applies it to the facts
of the case. See Thomas v. Hughes, 27 F.4th 363, 367 (5th
Cir. 2022) (quoting Maiz v. Virani, 311 F.3d 334, 338 (5th
Cir. 2002)). Prest does not cite any toxic tort cases where
we have not required the plaintiff to show the harmful
level of exposure to a chemical in the general population. 5
5. Prest offers Mcgill v. BP Expl. & Prod., Inc., 830 F. App’x
430, 433 (5th Cir. 2020); Clark v. Kellogg Brown & Root L.L.C., 414
F. App’x 623, 627 (5th Cir. 2011); and Curtis v. M&S Petroleum,
Inc., 174 F.3d 661, 671 (5th Cir. 1999), to argue that we have stated
“it is not necessary for an expert to establish the precise level of
exposure.” But those cases discuss specific causation.
7a
Appendix A
Accordingly, the district court would have erred if it had
not applied our toxic tort precedent and instead created
a new standard. See Hesling v. CSX Transp., Inc., 396
F.3d 632, 638 (5th Cir. 2005) (“A district court abuses its
discretion if it bases its decision on an erroneous view of
the law. . . .”).
Second, Prest’s arguments are based on a flawed
understanding of the general causation requirement.
The crux of Prest’s argument is that BP’s failure to
conduct biomonitoring of oil spill workers and preserve
data “ma[de] it impossible” for Prest “to reliably recreate
dosage levels” or otherwise quantify his exposure to the
chemicals that caused his alleged injuries. But Prest
puts the cart before the horse. BP’s alleged failure to
conduct biomonitoring and preserve data has no bearing
on general causation. Rather, “[e]xposure data collected
(or not) from the incident almost always bears on specific
causation. It does not bear on whether, per the scientific
literature, exposure to a chemical can cause a specific
injury in the general population.” Byrd v. BP Expl.
& Prod., Inc., No. 22-30654, 2023 U.S. App. LEXIS
15107, 2023 WL 4046280, at *2 (5th Cir. June 16, 2023).6
Thus, “even assuming that BP had an affirmative duty
to [conduct biomonitoring or preserve data] after the
oil spill, the lack of this information is not what renders
Dr. Cook’s [and Dr. Ross’s] expert report[s] unreliable,
unhelpful, and inadmissible.” Id. In other words, even
6. Although unpublished opinions are non-precedential, we
cite them as persuasive. Byrd is particularly relevant because it
involves a similarly situated plaintiff, the same defendant, and one
of the same expert witnesses—Dr. Cook.
8a
Appendix A
if Cook and Ross had quantified Prest’s exposure to the
chemicals that allegedly caused his injuries, their expert
testimony would still fail to satisfy general causation. See
Johnson, 685 F.3d at 468-69 (finding no abuse of discretion
in excluding an expert witness’s causation opinion when
the expert provided a differential diagnosis without
satisfying general causation requirement). Accordingly,
the district court did not abuse its discretion in excluding
their opinions.
And without Dr. Cook’s and Dr. Ross’s testimony,
Prest cannot establish causation for his chemical exposure
claims. See Allen, 102 F.3d at 199 (requiring not just
knowledge, but scientific knowledge). Accordingly, the
district court did not err in granting summary judgment
for BP as to Prest’s exposure claim. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986) (“[A] complete failure of proof concerning
an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.”).
B.
Prest also contends the district court erred in
dismissing his “temporary injury” and emotional distress
claims based on his being sprayed with dispersant. He
reasons that expert testimony is not required for those
claims. But he cites no authority to support his argument
that expert testimony is not required for his temporary
injuries. Instead, he only references his opposition to BP’s
motion for summary judgment. A party cannot simply
point to a district court filing to support an argument
9a
Appendix A
on appeal. See Fed. R. A pp. P. 28(a)(4). “Our court has
resoundingly rejected such a tactic.” E.R. by E.R. v.
Spring Branch Indep. Sch. Dist., 909 F.3d 754, 763 (5th
Cir. 2018) (citing Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993)). Accordingly, Prest waived any argument
that expert testimony is not required to substantiate
temporary injuries. See id.; see also United States v.
Fernandez, 48 F.4th 405, 412 (5th Cir. 2022) (“[F]ailure
adequately to brief an issue on appeal constitutes waiver
of that argument.”).
As for his emotional distress claim, Prest contends the
district court erred by finding that he was not in a zone
of danger. As a threshold matter, “[w]e have ‘repeatedly
declined to adopt or preclude the zone-of-danger theory’
for general maritime law.” SCF Waxler Marine, L.L.C. v.
Aris T M/V, 24 F.4th 458, 476 (5th Cir. 2022). Assuming
arguendo that plaintiffs can recover under such a theory,
Prest’s claim nonetheless fails.
To recover under a zone of danger theory, a plaintiff’s
emotional injuries must be “a reasonably foreseeable
consequence of the defendant’s alleged negligence.” Id.
Prest avers that he has “constantly [had] flashbacks
and nightmares from all [he] [has] endured . . . whether
it’s [his] mental or physical health, [his] family/friends
enjoyment (or lack thereof), the estuary, [their] business,
or the future that [their] one-and-only son would have
had if not for BP. It has forever changed [Prest] both
mentally and physically.” He also states more broadly
that “he has . . . suffered substantial mental pain and
suffering and loss of enjoyment of life related to the
10a
Appendix A
Oil Spill.” We do not question the seriousness of Prest’s
alleged emotional injuries, but, by his own testimony, they
are not a foreseeable consequence of being sprayed with
dispersant by the airplane. Rather, they pertain to the BP
oil spill generally. Prest does not articulate any emotional
injuries related directly to being sprayed with dispersant.
Accordingly, Prest’s emotional distress claims not only
fail under a zone of danger theory, but “under any known
theory of recovery—even the most liberal.” See Plaisance
v. Texaco, Inc., 966 F.2d 166, 168 (5th Cir. 1992).
III.
Prest also challenges the district court’s order
denying his motion to amend the scheduling order and
continue trial. He asserts there was good cause to continue
the trial based on Dr. Vives’s testimony that she could not
determine if Prest’s recent medical issues were the result
of his oil spill work until those conditions stabilized. Id.
District courts have broad discretion in enforcing the
deadlines in their scheduling orders. Batiste v. Lewis,
976 F.3d 493, 500 (5th Cir. 2020). “We will not lightly
disturb a court’s enforcement of those deadlines.” Id.
(quoting Geiserman v. MacDonald, 893 F.2d 787, 792
(5th Cir. 1990)). We consider several factors to determine
whether a district court abused its discretion to exclude
evidence as a means of enforcing its scheduling order:
“(1) the explanation for the failure to . . . [comply with the
scheduling order]; (2) the importance of the [evidence];
(3) potential prejudice in allowing the [evidence]; and (4)
the availability of a continuance to cure such prejudice.”
11a
Appendix A
Id. (quoting Squyres v. Heico Cos., 782 F.3d 224, 237 (5th
Cir. 2015)).
All four factors weigh against Prest, but we focus on
the importance of Dr. Vives’s evidence. Vives’s potential
testimony is less important because it relates to specific
causation—and thus does not remedy Prest’s inability
otherwise to show general causation. Vives does not
purport to have evidence that exposure to crude oil or
dispersants causes neurological issues in the general
population. Thus, even if she testified that there was a
connection between Prest’s recent medical issues and
his oil spill work, summary judgment would still be
appropriate. Consequently, the district court did not abuse
its discretion in denying Prest’s motion for a continuance.7
IV.
For the reasons stated, the judgment of the district
court is
AFFIRMED.
7. Prest also argues for the first time on appeal that the
district judge erred by refusing to recuse. “That argument was
not raised in the district court, so it is forfeited.” U.S. ex rel.
Drummond v. BestCare Lab’y Servs., L.L.C., 950 F.3d 277, 285
(5th Cir. 2020) (citing Andrade v. Chojnacki, 338 F.3d 448, 454
(5th Cir. 2003)).
12a
B
APPENDIX BAppendix
— JUDGMENT
OF THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF LOUISIANA,
FILED NOVEMBER 10, 2022
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 17-3409 SECTION M (4)
KIRK PREST
VERSUS
BP EXPLORATION & PRODUCTION, INC., et al.
JUDGMENT
In accordance with this Court’s Order & Reasons (R.
Doc. 72) granting the motion for summary judgment of
defendants BP Exploration & Production Inc., BP America
Production Company, and BP p.l.c.,
IT IS ORDERED, ADJUDGED, AND DECREED
that there be judgment in favor of defendants DISMISSING
the claims of plaintiff Kirk Prest, with prejudice.
New Orleans, Louisiana, this 10th day of November,
2022.
/s/ Barry W. Ashe
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
13a
Appendix
C REASONS OF THE
APPENDIX C — ORDER
AND
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA,
FILED NOVEMBER 9, 2022
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 17-3409 SECTION M (4)
KIRK PREST
VERSUS
BP EXPLORATION & PRODUCTION INC., et al.
November 8, 2022, Decided;
November 9, 2022, Filed
ORDER & REASONS
Before the Court is a motion by defendants BP
Exploration & Production Inc., BP America Production
Company (“BP America”), and BP p.l.c. (collectively,
“Defendants”) to strike and exclude the medical causation
opinions of plaintiff’s treating ophthalmologist, Dr. Robert
Ross, for failure to comply with Rule 26(a)(2)(B) of the
Federal Rules of Civil Procedure and Rule 702 of the
Federal Rules of Evidence.1 Plaintiff Kirk Prest responds
in opposition, 2 and Defendants reply in further support
of their motion. 3
1. R. Doc. 50.
2. R. Doc. 58.
3. R. Doc. 67.
14a
Appendix C
Also before the Court is Defendants’ motion for
summary judgment arguing that Prest cannot prove
general causation without an admissible expert opinion.4
Prest responds in opposition, 5 and Defendants reply in
further support of their motion.6
Having considered the parties’ memoranda, the record
and the applicable law, the Court grants both motions and
dismisses Prest’s claims with prejudice.
I.
BACKGROUND
This case is one of the “B3 cases” arising out of the
Deepwater Horizon oil spill that occurred on April 20,
2010.7 The B3 plaintiffs all make “claims for personal
injury and wrongful death due to exposure to oil and/
or other chemicals used during the oil spill response
(e.g. dispersant).”8 These cases were originally part of a
multidistrict litigation (“MDL”) pending in another section
of this court before Judge Carl J. Barbier. When Judge
Barbier approved the Deepwater Horizon medical benefits
class action settlement agreement, the B3 plaintiffs either
opted out of the settlement or were excluded from the
4. R. Doc. 51.
5. R. Doc. 59.
6. R. Doc. 69.
7. R. Doc. 6 at 1-2, 50.
8. Id. at 50.
15a
Appendix C
class definition.9 Judge Barbier then severed the B3 cases
from the MDL, and those cases were reallotted among the
judges of this court.10
Prest alleges that, on April 30, 2010, he joined the
“vessels of opportunity” program by entering into a
master vessel charter agreement with BP America
for the use of his 24-foot vessel in oil-spill cleanup
work.11 Between May 16 and November 26, 2010, Prest
performed oil-spill cleanup work consisting mostly of
wildlife rescue operations near Venice, Grand Isle, and
Port Fourchon.12 Prest alleges that he was exposed to
crude oil and dispersants while engaged in the cleanup
efforts and had adverse health conditions or symptoms
including, but not limited to, “blinding” eye injury, skin
injuries, respiratory issues, neurological damages, and
stress.13 He also claims Central Serous Retinopathy
(“CSR”) and other eye complications; hypertension and
related cardiovascular issues; anxiety and depression;
skin, nasal, and respiratory issues; and other neurological
9. Id. at 51 n.3.
10. Id. at 1-58.
11. R. Doc. 1 at 2.
12. Id. at 2-3; R. Doc. 40-3 at 3, 5. The complaint says that
he did the work from May 3 to October 30, 2010. R. Doc. 1 at 2.
The dates listed in the text above are found in Prest’s “PTO 66
Particularized Statement of Claim for Remaining B3 Plaintiffs.”
R. Doc. 40-3 at 3, 5.
13. R. Doc. 1 at 4.
16a
Appendix C
injuries causing migraines, insomnia, and memory loss.14
Prest opted out of the medical benefits class action
settlement agreement.15 In this action, he asserts claims
for negligence with respect to the oil spill and cleanup.16
In the case management order for the B3 bundle of
cases, Judge Barbier noted that, to prevail, “B3 plaintiffs
must prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during
the response.”17 He further observed that causation “will
likely be the make-or-break issue for many B3 cases,”
and “the issue of causation in these toxic tort cases will
require an individualized inquiry.”18
Prest, like all other B3 plaintiffs to have appeared
before this Court, relied on Dr. Jerald Cook to provide
expert testimony as to general causation, i.e., that
exposure to oil and dispersants was capable of causing
in the general population the kind of health issues he
alleges.19 For most B3 cases, Cook issued an omnibus,
non-case-specific general causation expert report that
has been used by many B3 plaintiffs and has evolved
over time. Prest produced in discovery, and relied upon,
14. R. Doc. 26 at 1.
15. R. Doc. 1-3.
16. R. Doc. 1 at 4-5.
17. R. Doc. 6 at 53.
18. Id. at 53-54.
19. R. Doc. 40-5.
17a
Appendix C
Cook’s September 30, 2022 report, which includes some
information specific to Prest. 20 However, in granting
Defendants’ motion to exclude Cook’s report in this case,
this Court concluded that Cook’s September 30 report
did not cure the previously identified deficiencies in
his prior reports; specifically, the September 30 report
did not provide admissible opinions concerning general
causation. 21
Cook, however, is not Prest’s only purported causation
expert. Prest’s Rule 26(a)(2)(C) expert disclosures indicate
that his treating ophthalmologist, Ross, will testify
about Prest’s treatment and also render expert opinions
regarding the potential causes of CSR, including “type
A personality,” stress, and exposure to weathered crude
oil and dispersants. 22 Defendants now move to strike
Ross, arguing that the disclosure is insufficient given
his causation opinions. 23 They also move for summary
judgment, arguing that once Ross’s causation opinions
are stricken, Prest has no admissible expert opinions
concerning general causation. 24
20. Id.
21. R. Doc. 49.
22. R. Doc. 50-4 at 1-3.
23. R. Doc. 50.
24. R. Doc. 51.
18a
Appendix C
II. LAW & ANALYSIS
A.
Defendants’ Motion to Strike Ross
Defendants move to strike Ross, arguing that,
because his purported opinions expand beyond facts and
knowledge gained in the course of his treating Prest and
attempt to delve into the realm of general causation, Ross
was required to issue a fulsome expert report pursuant to
Rule 26(a)(2)(B). 25 Defendants also argue that Ross cannot
survive a challenge under Rule 702 because he does not
meet the minimal requirements for rendering reliable
general or specific causation opinions. 26 Specifically,
Prest’s Rule 26(a)(2)(C) disclosure of Ross does not contain
the information required for a general causation opinion,
“such as (a) an identified association in the literature
between exposure and disease, and (b) the harmful dose
of a specific toxin necessary to cause a disease or injury
in the general population.” 27 In sum, Defendants argue
that Ross’s testimony should be limited to the knowledge
he gained during his treatment of Prest. 28
In opposition, Prest argues that, because Ross is a
treating physician, a summary disclosure under Rule 26(a)
25. R. Doc. 50-1 at 3-7.
26. Id. at 8-11.
27. R. Doc. 67 at 5.
28. R. Docs. 50-1 at 12; 67 at 2-4.
19a
Appendix C
(2)(C) is all that is required, and it was provided. 29 Prest
also argues that Ross satisfies Rule 702 because he opines
that it is more probable than not that chronic undue stress
caused by the oil spill exacerbated Prest’s underlying CSR
disease process which “does not reach the issue of toxic
exposure, and therefore, does not require both general
and specific causation” expert opinions. 30 Finally, Prest
argues that Defendants should depose Ross to determine
the basis of all his opinions. 31
Rule 26(a)(2) governs the disclosure of expert
testimony. An expert that is retained by a party for
purposes of litigation is required to provide an expert
report pursuant to Rule 26(a)(2)(B). See Fed. R. Civ. P.
26(a)(2)(B). Prior to 2010, non-retained experts, such as
treating physicians, were exempt from Rule 26’s expert
reporting requirements. Tucker v. United States, 2019
U.S. Dist. LEXIS 150052, 2019 WL 4198254, at *2 (E.D.
La. Sept. 4, 2019) (collecting cases). In 2010, Rule 26(a)(2)
(C) was added, which provides a less stringent disclosure
requirement for non-retained experts, such as treating
physicians. Id. Rule 26(a)(2)(C) requires that a party,
with respect to a non-retained expert, provide a written
disclosure stating: “(i) the subject matter on which the
witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and (ii) a summary of
the facts and opinions to which the witness is expected
29. R. Doc. 58 at 1-3.
30. Id. at 3-4.
31. Id. at 4-5.
20a
Appendix C
to testify.” Fed. R. Civ. P. 26(a)(2)(C). A Rule 26(a)(2)(C)
disclosure “need not be extensive,” but must include “‘an
abstract, abridgement, or compendium of the opinion
and facts supporting the opinion.’” Causey v. State Farm
Mut. Auto. Ins. Co., 2018 U.S. Dist. LEXIS 82388, 2018
WL 2234749, at *2 (E.D. La. May 16, 2018) (quoting Rea
v. Wis. Coach Lines, Inc., 2014 U.S. Dist. LEXIS 141875,
2014 WL 4981803, at *5 (E.D. La. Oct. 3, 2014)) (internal
quotation marks omitted; emphasis in original).
Although a Rule 26(a)(2)(C) summary disclosure
generally suffices for a treating physician, a more
comprehensive report that complies with Rule 26(a)(2)
(B) is required when such a witness intends to render
opinions based on scientific, technical, or other specialized
knowledge. See Hooks v. Nationwide Hous. Sys., LLC,
2016 U.S. Dist. LEXIS 89534, 2016 WL 3667134, at *3
(E.D. La. July 11, 2016). “For example, testimony as to
causation or as to future medical treatment has been
considered the province of expert testimony subject to
the requirements of section (a)(2)(B).” Id. (citing Rea,
2014 U.S. Dist. LEXIS 141875, 2014 WL 4981803, at
*2). Further, “where physicians’ testimony is prepared
in anticipation of litigation by the attorney or relies on
sources other than those utilized in treatment, courts have
found that the treating physician acts more like an expert
and must submit a report under Rule 26(a)(2)(B).” Id.
“Failure to comply with the deadline for disclosure
requirements results in mandatory and automatic
exclusion under Federal Rule of Civil Procedure 37(c)
(1).” Tucker, 2019 U.S. Dist. LEXIS 150052, 2019 WL
21a
Appendix C
4198254, at *2 (quotation marks and citations omitted).
And the excluded witnesses may not offer testimony “to
supply evidence on a motion, at a hearing, or at a trial,
unless the failure [to provide Rule 26 disclosures] was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)
(1). In determining whether the failure was substantially
justified or harmless, courts consider: “(1) the explanation
for the failure to adhere to the deadline; (2) the importance
of the proposed modification of the scheduling order; (3)
the potential prejudice that could result from allowing
the modification; and (4) the availability of a continuance
to cure that prejudice.” Leggett v. Dolgencorp. LLC, 2017
U.S. Dist. LEXIS 175796, 2017 WL 4791183, at *2 (E.D.
La. Oct. 24, 2017) (citing Geiserman v. MacDonald, 893
F.2d 787, 791 (5th Cir. 1990)).
If an expert is properly disclosed, the district
court must determine whether the proposed testimony
is admissible under Rule 702 of the Federal Rules of
Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139,
118 S. Ct. 512, 139 L. Ed. 2d 508 (1997). Rule 702 provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a
fact in issue;
22a
Appendix C
(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 . Ev id. 70 2 . In Dauber t v. Mer rell Do w
Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), the Supreme Court held that
Rule 702 requires a district court to act as a gatekeeper
to ensure that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.”
The reliability inquiry requires a court to assess
whether the reasoning or methodology underlying the
expert’s testimony is valid. See id. at 592-93. In Daubert,
the Supreme Court listed several non-exclusive factors for
a court to consider in assessing reliability: (1) whether the
theory has been tested; (2) whether the theory has been
subjected to peer review and publication; (3) the known
or potential rate of error; and (4) the general acceptance
of the methodology in the scientific community. Id. at
593-95. However, a court’s evaluation of the reliability
of expert testimony is flexible because “[t]he factors
identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue,
the expert’s particular expertise, and the subject of his
testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137,
150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (quotations
23a
Appendix C
omitted). In sum, the district court must ensure “that
an expert, whether basing testimony upon professional
studies or personal experiences, employs in the courtroom
the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Id. at 152. The
party offering the testimony must establish its reliability
by a preponderance of the evidence. See Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Rule 702 also requires that an expert be properly
qualified. Generally, if there is some reasonable indication
of qualifications, the district court may admit the expert’s
testimony, and then the expert’s qualifications become
an issue for the trier of fact. Rushing v. Kan. City S. Ry.
Co., 185 F.3d 496, 507 (5th Cir. 1999), superseded in part
by statute on other grounds as noted in Lester v. Wells
Fargo Bank, N.A., 805 F. App’x 288, 291 (5th Cir. 2020).
A witness qualified as an expert is not strictly confined
to his area or practice but may testify regarding related
applications; a lack of specialization goes to the weight, not
the admissibility of the opinion. Cedar Lodge Plantation,
L.L.C. v. CSHV Fairway View I, L.L.C., 753 F. App’x 191,
195-96 (5th Cir. 2018).
Here, Prest’s Rule 26(a)(2)(C) disclosure of Ross states
that Ross will testify as to the effects of stress and its
related biological processes that caused or contributed to
Prest’s CSR. 32 Assuming these specific causation opinions
related to Prest’s CSR are within Ross’s expertise as an
ophthalmologist and constitute knowledge that would have
32. R. Doc. 50-4 at 2.
24a
Appendix C
been gained during his treatment of Prest, such opinions
may be properly included in a Rule 26(a)(2)(C) summary
disclosure. 33
The disclosure also indicates, however, that Ross
will testify and render opinions about the “transmission
path pertinent to Mr. Prest’s exposure, including but
not limited to, the fact that weathered crude oil and
dispersants that were evaporated into the air, aerosolized
by wave action, wind action and turbulence with significant
inhalation and dermal exposures,” thereby exposing
him “to volatile organic compounds, polycyclic aromatic
hydrocarbons (PAH), N-hexane and Corexit dispersant.”34
Thus, Prest represents that Ross will testify and render
opinions as to the chemicals to which Prest was allegedly
exposed and the effects those chemicals may have on
the body, culminating in the opinion that “there were
multiple pathways for Mr. Prest’s exposure to Corexit
and weathered crude oil during the BP Oil Spill cleanup,
including possible CSR causation and exacerbation, and
potential direct retinal and optic nerve toxicity with mild
33. Because the Court holds that Prest has not provided the
necessary expert opinion on general causation, the Court does
not now determine whether the specific causation opinions are
admissible, even assuming they were properly disclosed. For
example, “one of the factors courts consider under Daubert for
specific causation is whether the expert has adequately accounted
for alternative explanations.” Collett v. Weyerhaeuser Co., 512
F. Supp. 3d 665, 674 (E.D. La. 2021). Defendants are right to
question whether Prest has satisfied this requirement to support
Ross’s specific causation opinions. R. Docs. 50-1 at 11-12; 67 at 5.
34. Id.
25a
Appendix C
papilledema reported by Dr[.] Vives, to cause Mr. Prest’s
vision degradation.”35 To the extent these opinions purport
to be general causation opinions, they do not arise from
Ross’s treatment of Prest, and thus were required to be
disclosed in an expert report compliant with Rule 26(a)
(2)(B). See, e.g., Hooks, 2016 U.S. Dist. LEXIS 89534,
2016 WL 3667134, at *3 (noting that expert opinion as to
causation is subject to the more fulsome requirements of
Rule 26(a)(2)(B)). Moreover, Prest’s summary disclosure
of Ross’s opinions does not even comply with Rule 26(a)(2)
(C) because there is no explanation of the facts supporting
these opinions. The report cites articles Ross supposedly
reviewed, but it does not mention a single fact supporting
his opinions. 36 The failure to provide a proper Rule 26(a)
(2)(B) expert report – or, for that matter, a proper Rule
26(a)(2)(C) expert report – is sufficient to exclude Ross’s
general causation opinions. Collett, 512 F. Supp. 3d at 674
(noting that a treating physician’s failure to provide a Rule
26 expert report on subjects outside of treatment would
justify exclusion).
Even if Prest had complied with the disclosure
requirements, however, Ross’s general causation opinions
for his exposure claims would be excluded because they do
not comply with Rule 702 and Daubert. General causation
requires identifying “the harmful dose of any chemical
to which [a plaintiff] was exposed that would cause the
development in the general population of the adverse
health conditions or symptoms . . . allege[d].” Carpenter
35. Id. at 2-4.
36. Id.
26a
Appendix C
v. BP Expl. & Prod., 2022 U.S. Dist. LEXIS 124533,
2022 WL 2757416, at *5 (E.D. La. July 14, 2022). Expert
evidence establishing the dose-response relationship is one
of the “‘minimal facts necessary to sustain the plaintiff’s
burden in a toxic tort case.’” 2022 U.S. Dist. LEXIS
124533, [WL] at *6 (quoting Allen v. Pa. Eng’g Corp., 102
F.3d 194, 199 (5th Cir. 1996)). Ross’s summary disclosure
does not do this. Indeed, it provides no information about
the duration or dose of Prest’s alleged exposure, much less
the effects of any such duration or dose within the general
population. 37 Moreover, Ross is an ophthalmologist, not an
immunologist, toxicologist, neurologist, or epidemiologist
and, thus, apparently lacks the education, training, and
experience regarding the significance or effect of chemical
exposure. Collett, 512 F. Supp. 3d at 674. Likewise, even if
Ross’s general causation opinion is limited to an opinion
that chronic exposure to undue stress can exacerbate the
CSR disease process, he fails to identify any medical or
scientific studies or literature of sufficient relevance and
reliability as would support that opinion. 38
In sum, Ross’s general causation opinions must
be excluded because they were not properly disclosed
under Federal Rule of Civil Procedure 26(a)(2)(B) and
are unreliable under Federal Rule of Evidence 702 and
Daubert.
37. Id.
38. In addition, any such opinion would not be helpful to the
trier of fact because physical injuries “caused by non-physical
stress are not compensable” under maritime law. See, e.g., Duet
v. Crosby Tugs, 2008 U.S. Dist. LEXIS 83607, 2008 WL 4657786,
at *3 (E.D. La. Oct. 20, 2008). See also infra at 11-12.
27a
Appendix C
B. Defendants’ Motion for Summary Judgment
Defendants argue that they are entitled to summary
judgment because Prest lacks general causation expert
testimony. This Court previously excluded Cook39 and has
now excluded Ross as a general causation expert. Thus,
all of Prest’s claims arising from direct chemical exposure
must be dismissed with prejudice. See, e.g., Brister v. BP
Expl. & Prod., 2022 U.S. Dist. LEXIS 149816, 2022 WL
3586760 (E.D. La. Aug 22, 2022); Burns v. BP Expl. &
Prod., 2022 U.S. Dist. LEXIS 132199, 2022 WL 2952993
(E.D. La. July 25, 2022); Carpenter v. BP Expl. & Prod.,
2022 U.S. Dist. LEXIS 124533, 2022 WL 2757416 (E.D.
La. July 14, 2022); Johns v. BP Expl. & Prod., 2022 U.S.
Dist. LEXIS 98369, 2022 WL 1811088 (E.D. La. June 2,
2022).
Prest urges, however, that expert testimony is not
required to support his claim that stress indirectly related
to chemical exposure exacerbated his CSR.40 In support
of his argument, Prest cites Walker v. BP Expl. & Prod.,
Inc., 2022 U.S. Dist. LEXIS 106512, 2022 WL 2160409,
at *5 (E.D. La. June 15, 2022), in which another section of
this court stated that if a plaintiff claims he “experiences
depression and anxiety due to the hardship of his alleged
ordeal with exposure and various physical injuries and
conditions,” as opposed to depression and anxiety caused
by physical neurological changes resulting from chemical
exposure, “such allegations would sound more in the
39. R. Doc. 49.
40. R. Doc. 59 at 7-9.
28a
Appendix C
register of damages for ‘mental pain and suffering,’ or
possibly ‘loss of enjoyment of life.’” Id. (alteration omitted).
Nevertheless, the Walker court did not address the
plaintiff’s purported claim for emotional distress because
the parties did not discuss the issue with specificity in the
briefing before the court. Id.
Here, Prest asserts that he experienced stress,
anxiety, and depression – emotional issues – not due to
neurological changes caused by chemical exposure, but
rather as side-effects of dealing with the oil spill. Generally,
a plaintiff may not recover for emotional injuries absent
an accompanying physical injury. SCF Waxler Marine,
L.L.C. v. M/V Aris T, 24 F.4th 458, 476 (5th Cir. 2022).
However, under a zone-of-danger tort theory (which the
Fifth Circuit has not adopted or precluded under general
maritime law), a plaintiff can recover for emotional injuries
if he is “placed in immediate risk of physical harm by [a
defendant’s negligent] conduct.” Id. (quotation omitted).
The Fifth Circuit explained in SCF Waxler:
Even assuming arguendo that plaintiffs can
recover under the zone-of-danger theory in
general maritime law, analogous case law
from other contexts state that a plaintiff must
establish that “the claimant was objectively
within the zone of danger; claimant feared for
his life at the time of the accident or person
was in danger, and his emotional injuries
were a reasonably foreseeable consequence
of the defendant’s alleged negligence.” To be
29a
Appendix C
in the zone of danger, a plaintiff must be in
“immediate risk of physical harm.”
Id. (quoting, first, Owens v. Global Santa Fe Drilling Co.,
2005 U.S. Dist. LEXIS 6225, 2005 WL 840502, at *3 (E.D.
La. Apr. 8, 2005), and then CONRAIL v. Gottshall, 512
U.S. 532, 548, 114 S. Ct. 2396, 129 L. Ed. 2d 427 (1994)).
The Fifth Circuit explained further that federal appellate
courts addressing the zone-of-danger test in maritime
cases hold that “a plaintiff was objectively within the zone
of danger if he (1) was at the same location where people
got injured by the alleged negligent conduct . . . ; (2) could
not leave the dangerous area . . . ; or (3) experienced a
near-miss collision.” In re Deepwater Horizon, 841 F.
App’x 675, 680 (5th Cir. 2021).
Because Prest does not plead any of these scenarios,
he was not in any zone of danger and may not recover
for emotional injuries. He worked cleaning up oil on or
near the coast (many miles from the Deepwater Horizon
accident site) and began work a few weeks after the initial
explosion. Indeed, the Fifth Circuit affirmed the district
court’s dismissal of the claims for emotional distress made
by fishermen who responded to the Deepwater Horizon
accident to aid with rescue efforts. Id. The court reasoned
that dismissal was proper because the fishermen were not
in the zone of danger as they remained 100 feet or more
from the rig and could have moved away from the area.
Id. The same can certainly be said of Prest. Accordingly,
Prest was not in the zone of danger and cannot recover
for emotional injuries under the prevailing law.
30a
Appendix C
III. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion to strike
Ross (R. Doc. 50) is GRANTED.
IT IS FURTHER ORDERED that Defendants’
motion for summary judgment (R. Doc. 51) is GRANTED,
and Prest’s claims against them are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana, this 8th day of November,
2022.
/s/ Barry W. Ashe
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
31a
Appendix
D REASONS OF THE
APPENDIX D — ORDER
AND
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF LOUISIANA,
FILED OCTOBER 18, 2022
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 17-3409 SECTION M (4)
KIRK PREST
VERSUS
BP EXPLORATION & PRODUCTION INC., et al.
October 18, 2022, Filed
ORDER & REASONS
Before the Court is a Daubert motion in limine
to exclude the general causation opinions of plaintiff’s
medical expert Dr. Jerald Cook filed by defendants BP
Exploration & Production Inc., BP America Production
Company, BP p.l.c. (collectively, “Defendants”).1 Plaintiff
Kirk Prest responds in opposition. 2
Defendants’ motion here is nearly identical to the
Daubert motions regarding Cook filed by Defendants,
1. R. Doc. 40.
2. R. Doc. 44.
32a
Appendix D
and granted by this Court, in other B3 cases. 3 See, e.g.,
Carpenter v. BP Expl. & Prod., Inc., 2022 WL 2757416
(E.D. La. July 14, 2022); Johns v. BP Expl. & Prod. Inc.,
2022 WL 1811088 (E.D. La. June 2, 2022); Johnson v. BP
Expl. & Prod. Inc., 2022 WL 1811090 (E.D. La. June 2,
2022); Macon v. BP Expl. & Prod. Inc., 2022 WL 1811135
(E.D. La. June 2, 2022); Murray v. BP Expl. & Prod.
Inc., 2022 WL 1811138 (E.D. La. June 2, 2022); Street v.
BP Expl. & Prod. Inc., 2022 WL 1811144 (E.D. La. June
2, 2022).
Accordingly, for the reasons stated in the Orders &
Reasons issued in those cases,
IT IS ORDERED that Defendants’ Daubert motion
to exclude Cooke (R. Doc. 40) is GRANTED.
3. Dr. Cook updated his report on September 30, 2022. R.
Doc. 40-5. The Court has reviewed the new report and concludes
that it does not cure the previously identified deficiencies in
Cook’s prior reports; specifically, the September 30 report does
not provide admissible general causation opinions. Id. Prest
admits in his opposition memorandum that applying the Court’s
prior reasoning in similar motions to this one would lead to the
same result, namely, exclusion of Cook’s opinions. R. Doc. 44 at
6. Prest advocates for a different approach that ignores Fifth
Circuit toxic tort precedent and blames Defendants for the lack
of dose-response data. Id. at 6-25. The Court is not persuaded by
these arguments.
33a
Appendix D
New Orleans, Louisiana, this 18th day of October,
2022.
/s/ Barry W. Ashe
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
34a
Appendix
E
APPENDIX E — DENIAL
OF REHEARING
OF THE
UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, FILED JULY 29, 2024
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 22-30779
KIRK PREST,
Plaintiff-Appellant,
versus
BP EXPLORATION & PRODUCTION,
INCORPORATED; BP AMERICA
PRODUCTION COMPANY; BP, P.L.C.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:10-MD-2179, 2:17-CV-3409
July 29, 2024, Filed
ON PETITION FOR REHEARING AND
REHEARING EN BANC
Before Stewart, Dennis, and Wilson, Circuit Judges.*
* Judges Jerry E. Smith, James C. Ho, and Dana M. Douglas
did not participate in the consideration of the rehearing en banc.
35a
Appendix E
Per Curiam:
The petition for panel rehearing is DENIED. Because
no member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc
(Fed. R. A pp. P. 35 and 5th Cir. R. 35), the petition for
rehearing en banc is DENIED.
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