Opposition Brief — Diamond Offshore Drilling, Inc. v. Lewis

jn The

Supreme Court of the Anited States

ro

v

DIAMOND OFFSHORE DRILLING, INC.,

Petitioner,

Respondent.

On Petition For Writ Of Certiorari

To The Louisiana Court Of

For The Fourth Circuit

*

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

©

ROBERT E. ARCENEAUX

47 Beverly Garden Drive

Metairie, LA 70001

(504) 833-7533

Attorney for Respondent

Jimmy Lewis

COUNTER QUESTIONS

PRESENTED FOR REVIEW

I. Does a lower court who allegedly commits error in

its application of the Daubert test in ruling on the

admissibility of expert testimony in an admiralty

case, commit legal error by “lowering the standard of

admissibility of evidence,” or does it merely abuse

its discretion in acting as gatekeeper under well-

established law?

iI. Under general maritime law, can a maritime

employer be required to pay cure when:

A. the plaintiff has not reached maximum

medical improvement, and is undergoing therapeutic

treatments that are improving his condition;

B. future care will continue to afford him im-

provement, for a specified duration according to a

specific treatment plan;

C. the employer fails to prove that there were

collateral sources that supplied the injured employee

with duplicative cure?

ll

TABLE OF CONTENTS

Page

OPIN IO Ie ee Baris siila tab isncccccvcsscccsescesscceee 1

STATE MEINE OP Trai Wi iivccccsccsccsccscsscesccesoeeee 2

REASONS WHY WRIT SHOULD NOT BE

CORRABY 6 tet sin sias aE a eta secscnscccscesccscescees. 5

I. No writ worthy Daubert errors were

COMMNIINI ls SEA ihctctesecccserescccscececees 5

A. The lower courts applied Daubert,

even if they did so in an erroneous

I Raisin cetsccesecscscccccccccces. +)

1. The lower courts conducted Dau-

bert hearings on each of Diamond’s

requests, and held that Dr. Jaffe’s

testimony was admissible under

the Daubert standard. .................... 5

2. The district court was not clearly

erroneous in admitting Dr. Jaffe’s

occ cecscscccscssscccees 6

B. Diamond continues to misrepresent

this case as one involving admission

of expert testimony regarding the

cause of a disease which allegedly has

GATE “WARPERIO WEE GUBUIG, 60. cccccccscesccccscscccees 16

C. State law procedural matters prevent

any potential Daubert issue from be-

SURE PIR rea baceseccccceessscccceseses 17

11]

TABLE OF CONTENTS — Continued

Page

II. There is no writ worthy issue regarding

the sufficiency of the evidence................... 19

III. There is no writ worthy issue about

maintenance and cure for an incurable

a a 22

IV. There is no writ worthy issue about

TUCAATO CUETO, coscccccccssvessones Licqeberenadcummidunenets 23

V. There is no writ worthy issue with regard

to collateral PRYMENEGS. .........cccsccccccccccssesess 24

CP IUG AIP EPIOS csiecdiesossinicneindeccenis diane 25

TABLE OF AUTHORITIES

Page

CASES

American Dredging Co. v. Miller, 510 U.S. 443,

114 S.Ct. 981, 127 L.Ed.2d 285 (1994)................... 17

Black v. Food Lion, Inc., 171 F.3d 308 (5th Cir.

RE ARIE Ce re atec tv Se Magni Bat A hart Pa Ran Cc PN 8, 15

Boudreaux v. United States, 280 F.3d 461 (5th

en So a oe sama nauaenabsaseaes 22

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58

S.Ct. GOL, SS Li. Bd. GOS (IGBS).cccccoscccccsccovescsscccceees 23

Coury Moss, Inc. v. Coury, 981 So.2d 936 (La.

App. 3rd Cir. 2008), writ denied, 981 So.2d

Ny I ac lasiicag ideas sgtactdlandanintiacesiassiniaciocaes 19

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d

NE 1 Es cach Asicind tseinini nn ahannianicasainsacoveeaesonek passim

Davis v. Odeco, 18 F.3d 1237 (5th Cir. 1994),

cert. denied, sub nom., Murphy Exploration

Company v. Davis, 513 U.S. 819, 115 S.Ct.

Fly BS Be Oe CED cnesivvasaciosvncsscavcncans 20, 21, 22

Ferebee v. Chevron Chemical Co., 736 F.2d 1529

(D.C. Cir. 1984), cert. denied, 469 U.S. 1062,

105 S.Ct. 545, 83 L.Ed.2d 432 (1984)...............0.0... 8

Gypsum Carrier, Inc. v. Handelsman, 307 F.2d

SE NE EN CIID iccvicardncdessuctuvcndevespacdsacesbiadbaxecens 23

Knight v. Kirby Inland Marine Inc., 482 F.3d

Be CO Ee BEE kncenssneviviecsiasicccisounenbinvadieanbaeneesisen 7

Landry v. 2-R. Drilling Company, 511 F.2d 138

Ei cacicsasasoisecuacerbcssventesadaminavuetonsatansatadarsacnicaesaas 20

TABLE OF AUTHORITIES — Continued

Page

Levine v. First National Bank of Commerce,

ee NE EE Es Be Pecccisssceccseusosiarsenssesocasersecees 18

Mistich v. Volkswagen of Germany, 666 So.2d

SS EE NERO ee rome) We aT PRE 6

Moore v. Ashland Chem., Inc., 151 F.3d 269

(5th Cir. 1998), cert. denied, 526 U.S. 1064,

119 S.Ct. 1454, 143 L.Ed.2d 541 (1999)................... 8

Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th

ag i a 8

Pitre v. Louisiana Tech University, 673 So.2d

585 (La. 1996), cert. denied, 519 U.S. 1007,

117 S.Ct. 509, 136 L.Ed.2d 399 (1996)................... 18

Pumphrey v. City of New Orleans, 925 So.2d

UT MII) os sce nusamaupnananiadadaceaaundsebioncectes 18

Rashdi v. Am. Presidential Lines, 96 F.3d 124

rhe ARN Der ea NE PRON ERD I 22

Rogers v. Missouri Pacific Railroad Co., 352

Rie ly FE teres Ge CRE Picssiccscvevseiasinesosssnevesscs 19

Ruiz-Troche v. Pepsi Cola Bottling Co., 161 F.3d

ge RRR ay a ee SO eR 7

Terrance v. Dow Chemical Co., 971 So.2d 1058

(La. App. lst Cir. 2007), writ denied, 970

I ins seapiadna reguenmiennonedudvancteenses 19

Vallot v. Central Gulf Lines, Inc., 641 F.2d 347

I I a 20

Wills v. Amerada Hess Corp., 379 F.3d 32 (2d

Na INN oscars gs ohopnmncaadetadndeouesunscidk ewneddansatuncntecesdes l

v1

TABLE OF AUTHORITIES - Continued

RULES

U.S. Supreme Court Rule 10......................... seneenenlelan 6

1

OPINIONS BELOW

Respondent objects to those portions of the

petitioner’s statement that are nothing more than

petitioner’s erroneous arguments about the holdings

of the courts below. Respondent vehemently objects to

the statement that the appellate court held that there

was “no valid scientific evidence of causation.” This is

simply false. Likewise false is the assertion that the

appellate court relied upon pre-Daubert law. The

appellate court found that it would not revisit the

Daubert issue as it had previously considered it on

interlocutory writs and found no abuse of discretion

in the trial court’s application of the doctrine. The

court then went on to apply the law with regard to

the standard of proof (featherweight) in Jones Act

and general maritime law cases, which is of course an

entirely different issue than admissibility of evidence

under Daubert. See e.g., Wills v. Amerada Hess Corp.,

379 F.3d 32, 47 (2d Cir. 2004) (holding that even

though a Jones Act “plaintiff faces a relaxed burden of

proof with regard to causation, the district court’s

admission of expert testimony is nonetheless gov-

erned by the strictures of [Evidence] Rule 702 and

Daubert,” and noting that the Sixth and Ninth

Circuits have reached the same conclusion). Whether

the appellate court failed to “adequately” discuss the

law with regard to maintenance and cure is certainly

a matter of opinion, and is hardly writ worthy even if

true.

Moreover, there are erroneous factual statements

made, such as that it is “undisputed” the causes of

2

SIBM are unknown and that it is incurable. Likewise

erroneous is the contention that respondent alleged

that his injuries are the result of SIBM. His injuries

are the result of acute metal poisoning, exhaustion,

and improper nutrition.

STATEMENT OF THE CASE

Jimmy Lewis is a functional! quadriplegic. His

condition differs from that of a true quadriplegic only

in that his spinal cord is not severed. Instead, the

muscles that are enervated by the nerves coming

from the spinal cord do not work properly. Supp.

Tran. 9/18/09, II of 8, at 59-60, 62, 63; III of 8, at 75,

76, 98, 100. His diagnosis includes quadriplegia,

sporadic inclusion body myositis (SIBM), malignant

hypertension, and intestinal inflammation all as a

result of being poisoned by toxic chemicals and heavy

metals while working aboard the vessel Ocean Spartan.

Supp. Tran. 9/18/09, III of 8, at 78-80, 101-102, 111-

112; P. Ex. 8, at 43, 143-144.

Mr. Lewis began working on the Ocean Spartan,

a movable, ocean going drilling rig then working in

the Gulf of Mexico, in 1987, as a Motorman. Supp.

Tran. 9/18/09, II of 8, at 96-97. Mr. Lewis was an

excellent employee, a fact conceded by his fellow

employees and supervisors, and documented in his

Employment Record, entered as a joint exhibit. Supp.

Tran. 9/18/09, V of 8, at 99.

3

The Ocean Spartan sailed from the Gulf of

Mexico to Lake Maracaibo, Venezuela, in 1991 and

immediately began drilling operations. Supp. Tran.

9/18/09, II of 8, at 98. Lake Maracaibo is a highly

polluted body of water, a fact known to the vessel’s

crew as well as supervisory personnel. Supp. Tran.

9/18/09, II of 8, at 104, VII of 8, at 27, 116. The Alfa

Laval water making machine aboard the SPARTAN

“wasn’t designed to make water from the lake water.”

Supp. Tran. 9/18/09, V of 8, at 95. Yet, crew members

testified that throughout the three years in Venezuela,

in Lake Maracaibo, they were using the water maker.

Supp. Tran. 9/18/09, II of 8, at 106-108; III of 8, at 31.

Despite company rules to the contrary, Diamond’s

tool pusher (the equivalent of the vessel captain),

Wade Reason, testified that he regularly ordered that

oil based mud be washed overboard into the waters of

Lake Maracaibo. Supp. Tran. 9/18/09, VII of 8, at 94.

The drilling mud was washed overboard in the imme-

diate vicinity of the intake from which the vessel’s

drinking water was obtained from the lake. Supp.

Tran. 9/18/09, VI of 8, at 122. Literature provided by

Alfa Laval, the maker of the vessel’s water making

machine, warned against using the machine to proc-

ess polluted water. Supp. Tran. 9/18/09, VI of 8, at

128. In addition, the machine malfunctioned to the

extent that it pumped polluted lake water directly

into the vessel’s drinking water system. Supp. Tran.

9/18/09, II of 8, at 106-108; VIII of 8, at 31. The

drilling mud used included quantities of antimony,

arsenic, barium, calcium, lead, mercury, nickel,

4

vanadium and zinc, among other heavy metals and

toxins detailed in Exhibit D-5 and all of which were

found in similar concentrations in Mr. Lewis’ body.

Supp. Tran. 9/18/09, VI of 8, at 15; III of 8, at 78-80,

101-102, 111-112.

Mr. Lewis continued to work on the Ocean Spartan

and to suffer recurring complaints. He sometimes felt

weak while working on the Ocean Spartan in Lake

Maracaibo but attributed his weakness to his con-

stant diarrhea and nausea as well as having to work

in temperatures which reached 140 to 160 degrees

in the areas such as the Mud Room.’ This subjected

Mr. Lewis to heat shock.’ As Mr. Lewis stated, he

attributed his occasional feelings of weakness “to

working conditions, stress, and heat, and bad water

and food.” Supp. Tran. 9/18/09, VIII of 8, at 7.

' The Mud Room was the area in which the equipment used

for circulating the drilling mud was located. The temperature of

the mud as it came from the drill hole reached as much as 150 to

160 degrees Supp Tran. 9/18/09, VI of 8, at 9-10, 106-111. Mr.

Lewis had to enter the area as often as six or eight times a day

and spend extended periods there when working on machinery.

Supp Tran. 9/18/09, II of 8, at 20.

* Heat shock 1s exposure to an extreme condition such as

heat for a sufficient period of time, typically minutes, for the

immune system of the body to mobilize a series of inflammatory

proteins called heat shock proteins (“HSP”). These proteins,

whose effect is long-lasting, reduce the body's protective system

and make an individual chronically susceptible to toxie metal

accumulation inside the mitochondria and cause death to the

mitochondria. P. Ex. 8, at 43, 77.

Laboratory tests show that Mr. Lewis’ body

contains substantial amounts of antimony, arsenic,

barium, cadmium, chromium, cobalt, copper, fluoride,

lead, mercury, nickel, vanadium, and zinc. Tests also

show that Mr. Lewis is highly allergic to many of the

toxins contained in the drilling fluids used on the

Ocean Spartan, arsenic in particular. Tests requested

by his treating physician show that his particular

genetic make-up, APO-3, makes it virtually impos-

sible for his body to rid itself of the poisons

encountered on the Ocean Spartan.

°

REASONS WHY WRIT SHOULD

NOT BE GRANTED

I. No writ worthy Daubert errors were com-

mitted.

A. The lower courts applied Daubert, even

if they did so in an erroneous manner.

1. The lower courts conducted Daubert

hearings on each of Diamond’s re-

quests, and held that Dr. Jaffe’s

testimony was admissible under the

Daubert standard.

Diamond pretends in its writ as if the lower

courts ignored Daubert entirely, and held that the

Daubert rule is not applicable in admiralty cases.

This is simply wrong. Diamond asked for and

received Daubert hearings with regard to the two

experts it objected to, and even went to the

6

extraordinary step of taking intermediate inter-

locutory supervisory writs prior to trial with regard to

one of them (Dr. Jaffe). See page 18, infra. It re-

ceived a second Daubert hearing immediately prior to

trial with regard to the other (Dr. Carter). Petitioner’s

real complaint is that Daubert was misapplied, not

that it was ignored. And, it makes this complaint

without any mention of the appropriate standard of

review to be applied in determining whether the

lower courts committed error in their Daubert

rulings, which is “clearly erroneous.” See Mistich v.

Volkswagen of Germany, 666 So.2d 1073, 1079 (La.

1996). As is stated in this Court’s Rule 10: “A petition

for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings

or the misapplication of a properly stated rule of law.”

2. The district court was not clearly

erroneous in admitting Dr. Jaffe’s

testimony.

Diamond’s main contention with regard to Dr.

Jaffe’s testimony is that his causation conclusion is

not supported by any peer reviewed commentary, or

empirical studies. This is incorrect, as will be

demonstrated below. But even if it were, that would

not be automatic grounds for exclusion. If Dr. Jaffe’s

conclusion is based upon sound scientific reasoning -

the kind of analytic thought process employed by

those in his field to opine about the causes of

particular illnesses in the absence of concrete and

definitive studies —- than it meets the requirements of

7

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and

is admissible. “(TJhere is no bright-line standard and

when an expert otherwise reliably utilizes scientific

methods to reach a conclusion, lack of textual support

may go to the weight, not the admissibility of the

expert’s testimony Knight v. Kirby Inland Marine

Inc., 482 F.3d 347, 354 (5th Cir. 2007). “In short,

Daubert neither requires nor empowers trial courts to

determine which of several competing theories has

the best provenance.” Ruiz-Troche v. Pepsi Cola

Bottling Co., 161 F.3d 77, 85 (1st Cir. 1998) (citations

omitted). This is true even in cases where a particular

theory of causation advanced by an expert has not

been studied before, and is not the subject of peer

reviewed commentary.”

° As the Fifth Circuit observed

The lack of literature on injection-related salmonella

infections of the joint does not undermine Dr. Coco’s

hypothesis. As the Supreme Court explained in

Kumho Tire, “(i]t might not be surprising in a par-

ticular case, for example, that a claim made by a

scientific witness has never been the subject of peer

review, for the particular application at issue may

rever previously have interested any scientist. Where,

as here, there is no evidence that anyone has ever

contracted a salmonella infection from an injection of

any kind into the knee, it is difficult to see why a

scientist would study this phenomenon. We conclude,

therefore, that the lack of reports in the literature

that any knee injectable other than Synvisc has

caused a salmonella infection, supports, rather than

contradicts, Dr. Coco’s conclusion that the infection

(Continued on following page)

8

There can be no doubt as to Dr. Jaffe’s quali-

fications. Dr. Russell Jaffe, MD, Ph. D., CCN, is a

Diplomat of both the National Board of Medical

Examiners and the American Board of Clinical

Pathology and has a dual certification for both

Clinical and Chemical Pathology. He received his

undergraduate and medical training at Boston Uni-

versity. He was at the National Institutes of Health

(NIH) in Bethesda, Md., from 1973 through 1979,

serving as a Senior Staff Physician from 1975

through 1979. While at NIH he worked in conjunction

with Dr. King Engel in dealing with patients with

Inclusion Body Myosotis. P. Ex. 8, at 33. Dr. Jaffe

has served as a consultant with numerous industry

groups and corporations including the Health Insur-

ance Association of America and Royal Dutch Shell

with regard to issues of hypersensitivity and immune

reactions to heavy metals including mercury,

cadmium and arsenic. P. Ex. 8, at 147-48. Dr. Jaffe

worked on the first indoor environmental quality

did not amse due to unsterile technique or other

source not related to Synvisc.

Pipitone v. Biomatrix, Inc., 288 F.3d 239, 246 (5th Cir 2002),

distinguishing Moore v. Ashland Chem., Inc., 151 F.3d 269, 278

(5th Cir. 1998), cert. denied, 526 U.S. 1064, 119 S.Ct. 1454, 143

L.Ed.2d 541 (1999), and Black v. Food Lion, Inc., 171 F 3d 308,

312-13 (5th Cir. 1999). See also Ferebee v. Chevron Chemical Co.,

736 F.2d 1529 (D.C. Cir. 1984), cert. denied, 469 U.S. 1962, 105

S Ct. 545, 83 L.Ed.2d 432 (1984) (cause and effect relationship

need not be established by animal or human studies before a

doctor can testify “as long as the basic methodology employed to

reach such a conclusion is sound.”).

9

report for the Department of Consumer Affairs of the

State of California. These studies addressed the effect

of heavy metais in the working environment. P. Ex. 8,

at 147-49. Dr. Jaffe has been involved in developing

functional and predictive tests to measure toxic

metals at the cellular level and has developed meth-

odology to examine the immune hypersensitivity of

certain individuals who develop delayed reactions

to heavy metals, such as mercury, cadmium and

arsenic. P. Ex. 8, at 148. He is the Director and CEO

of a nationally recognized testing laboratory. P. Ex. 8,

at 8-9. In short, Dr. Jaffe is eminently suited to

address questions such as those presented in this

case including the cause of the cell death in Mr.

Lewis’ muscles and its relationship to heavy metals,

the effect on the mitochondria and the creation of

inclusions, and whether heavy metals caused,

triggered or accelerated a _ previously benign

condition. Further, with his laboratory and testing

background, Dr. Jaffe is more than qualified to

address issues regarding testing for heavy metals as

well as their effect.

Nor is there anything lacking in Dr. Jaffe’s

methodology. He studied Mr. Lewis’ medical records,

and consulted extensively with Dr. Carter, the

treating physician. P. Ex. 8, at 7-8, 13. He interviewed

Mr. Lewis to rule out other potential causes of his

condition. P Ex. 8, at 25. He reviewed the toxi-

cological reports of the conditions on board the rig. P.

Ex. 8, at 16. He reviewed all the available literature

on the subject of SIBM, including studies that have

10

ruled out a host of possible causes, such as genetics,

psychological factors, viruses, and infections. P. Ex. 8,

at 31, 133-134. But, it is important to note that the

focus of Dr. Jaffe’s inquiry was not SIBM in general,

but rather the specifics of Mr. Lewis’ case, a task for

which he was particularly well suited given that he

has studied the effect of heavy metals on the body as

was presented by Mr. Lewis’ situation. P. Ex. 8, at 31,

104, 147.

At this point, it is best to turn to the words of

Dr. Jaffe himself, who best explains the soundness

of his reasoning that produced his conclusion that

Mr. Lewis’ condition was caused, at least in part, by

the conditions he was exposed to and under which he

worked on the Ocean Spartan.

Q. So it would be fair to say then that

youre not aware of any credible

scientific studies that established that

heavy metal exposure causes sporadic

inclusion body Myosotis? * * *

A. The simple answer to your question is

no, and there is a qualification. * * * The

qualification is that I find strong

evidence that exposure to toxic metals

like lead, mercury, cadmium and arsenic

at levels that Mr. Lewis could have been

exposed to, at a time when he was

distressed because of heat shock expo-

sure that would have reduced his innate

protective antitoxic mineral production

and made him now newly and chron-

ically susceptible to toxic metal

P. Ex. 8,

4a

accumulation, and that toxic metal

accumulation inside the mitochondria

causes death to the mitochondria and a

dead mitochondria become an inclusion

body.

So I can point you to literature that

says toxic metals are bad for mitochon-

dria, they uncouple and electrically

short-circuit the battery and the cell.

The mitochondria is actually a _ cell

inside our cells, this is a_ technical

footnote, but mitochondria actually are

independent organisms living inside our

cells and they have their own DNA, they

divide on their own sequence, it is a

whole complicated history. But the

relevant point here is that toxic metals

at the level that Mr. Lewis was exposed

to them might well have under certain

conditions accumulated in him and

caused the death of mitochondria, and

those dead mitochondria become inclu-

sion bodies, what we called in the biopsy

inclusion body Myosotis. That’s my

reasonably certainly medical opinion.

at 42-44.

The best evidence we have is that the

people whose muscles die for lack of

energy do so because their batteries,

their mitochondria have been poisoned.

That is the best information we have

scientifically.

O P

& P

12

And you mentioned early on there was a

study you referenced that suggested that

— well you said showed that in fact the

inclusions could be caused by exposure

to heavy metals.

Correct.

What is that study?

The study is as follows: If you expose a

cell or an organism to mercury or lead or

cadmium, or more particularly to a

combination of them, that you first

find that their mitochondria become

uncoupled, they do not produce energy.

And if you keep that up chronically, you

find that the mitochondria die and the

remnants of them are what we call

inclusion bodies and inclusion body

Myosotis.

Are these the same inclusions that you

find in inclusion body Myosotis?

The same, the very same. * * *

Is there more than one study?

There are several studies, but this

particular study points out that lead

causes the fibrillation, which means the

production of what are abnormal pro-

teins specifically something called alfa

synuclean. And when that _ specific

molecule inside the mitochondria gets

oxidized, that mitochondria, that battery

inside the cell is on its way to dying. And

13

if [it] doesn’t get corrected, rehabilitated

or protected by an antioxidant, by

ascorbate, that mitochondria is on its

way to dying.

And this study has been ... in the

test tube, but other studies where you

feed lead, say inadvertently to battery

workers in Vermont, you find that they

get a specific kind of muscle fatigue and

atrophy, and when you do biopsies and

look at the ulrastructure you find

inclusion bodies.

No it isn’t inclusion body myositis,

but it is inclusion bodies caused by toxic

metals. So not all inclusion bodies are

definitive for the diagnosis of inclusion

body Myosotis, as often happens in

science. * * * Medicine is a clinical art,

it’s a descriptive art, it is not as much of

a science as we would like it to be.

In your ~— have you attempted to do an

extensive research of this question of the

inclusions and the — and inclusion body

Myosotis?

I have.

Are you aware or have you found any

research, any studies which rule out

exposure to heavy metals as they cause

an —

Not one, that has not been ruled out.

P. Ex. 8,

P. Ex. 8,

14

Those exhibits you’ve produced for us,

are those peer-reviewed documents.

Every one of these documents is peer

reviewed.

at 142-149.

Can you say with any degree of medical

probability whether Mr. Lewis would

have accrued this disease even had he

not been employed on the Ocean

Spartan?

I can say within a reasonable degree of

medical certainty that he would not.

* *k *

What basis do you have to say that?

Because you asked my _ considered

scientific medical opinion, based on hun-

dreds of hours of research, of synthesis

of information, of doing my own dis-

cussions, as well as my readings of

everything that I could — everything I

could get my hands on, everything that

was made available to me, I have put

together. And it is my _ considered

medical opinion that witheut his specific

work history on the oil rig in Lake

Maracaibo, Venezuela that he would not,

in my opinion, have sporadic inclusion

body Myosotis.

at 99.

15

Dr. Jaffe’s methodology, reasoning, and conclu-

sion is not the kind of rank speculation that was

rejected in Food Lion, because his approach to the

problem reveals a well accepted method applying

scientific principles which are well established in the

literature as to how heavy metal intoxication could

lead to death of the mitochondria and thus body

inclusions. He used all the tools of medicine and

science at his disposal to carefully evaluate the facts

before him, and to reach a carefully considered

opinion based upon the best science and information

available to him.* True, unlike the defense experts, he

did not throw up his hands and say, “SIBM, end of

discussion ~— no cause, no cure.” Rather, he was called

upon to study the specifics of Mr. Lewis’ case and

determine the most probable cause of his present

condition, given all that he had endured on the Ocean

Spartan. There was sufficient information in the

scientific literature, as well as in his own area of

expertise, to allow him to complete this task.

The district court certainly was not “clearly

erroneous” in allowing him to testify. And yet, even if

it was, there would be nothing presented here except

the failure to apply well established law correctly,

* He even consulted a neurologist to confirm his approach

and conclusions, thus eliminating one of Diamond’s chief

complaints that Dr. Jaffe was not qualified to opine because he

was not a neurologist This Board Certified neurologist was in

full agreement with Dr. Jaffe’s logic, science, and conclusions P.

Ex. 8, at 128-30.

16

which is not an error that justifies this Court’s

intervention.

B. Diamond continues to misrepresent

this case as one involving admission of

expert testimony regarding the cause

of a disease which allegedly has an

“unknown” cause.

The issue in this case is not whether metal

poisoning is the cause of Sporadic Inclusion Body

Myositis. It is not even whether heavy metals are

a cause. It is whether the conditions experienced by

Mr. Lewis aboard the Ocean Spartan — the toxic

drilling mud, drinking contaminated water, eating

unnutritious food, and working in 160 degree

temperature — was a cause of his present condition,

which is a quadriplegic state that has been charac-

terized as adult muscular dystrophy, in addition to

chronic diarrhea and high blood pressure.

One fact that Diamond continues to ignore in its

“SIBM — no cause, no cure” approach to this case

is that Mr. Lewis’ alieged SIBM is very atypical.

Generally the disease has a long latency period, and

is characterized as an older person’s disease, usually

not beginning until at least the mid-50’s and not

manifesting itself to its full extent, and thus resulting

in a wheel-chair confined life, until much later. Here,

Mr. Lewis’ case progressed rapidly, had a_ short

latency, and struck fully when he was 35. P. Ex. 8, at

46, 76.

17

Accordingly, in evaluating the evidence of cause,

it was the petitioner’s experts who sought to look

beyond the diagnosis of SIBM, and did not simply

throw their hands up decrying this is a hopeless case.

They probed further, and sought to determine the

source of Mr. Lewis’ condition, whether it was

independent of SIBM, the result of an exacerbated

case of SIBM, or SIBM itself. In so doing, they relied

upon all the tools available to them, as well as their

high degree of specialization and skill. There was no

error in the evidence that the jury received on the

issue of cause, even if, conceding for the sake of

argument that the general cause of generic SIBM in

the population at large might not be presently known.

C. State law procedural matters prevent

any potential Daubert issue from

being writ worthy.

This Court should not reach the admission of

Dr. Jaffe’s testimony, because Louisiana procedural

law’ renders any Daubert challenge to their testi-

mony moot. Prior to trial, Diamond took interlocutory

writs to the Louisiana Fourth Circuit Court of

* See e.g., American Dredging Co. v. Miller, 510 US. 443,

114 SCt 981, 127 L.Ed.2d 285 (1994), state forum non

conveniens law applics in maritime cases and is not preempted

by federal maritime law because the state law did not work a

matenal prejudice to a charactenstic feature of general

maritime law, and that uniformity is not required on matters

related to procedure.

18

Appeal, which held that there was “no abuse of

discretion” in the trial court’s denial of Diamond’s

motion to exclude Mr. Jaffe’s testimony. See Lewis v.

Odeco, 2006-C-1485 (La. App. 4th Cir. 11/14/06) (“Writ

Denied. We find no abuse of discretion by the trial

court.”). On appeal, the Fourth Circuit refused to

revisit that issue, relying on the “law of the case

doctrine” to find that it had already reviewed that

issue, and would not do so again. See App. 11-12.

Accordingly, before any court could properly

reach the Daubert issue, it would have had to find

error in the intermediate appellate court’s handling of

the issue. Yet, Diamond did not even assert a single

reason in its writ application for why the law of the

case doctrine was improperly applied. “The law of the

case principle is not applied to prevent a higher court

from considering the correctness of a ruling by an

intermediate appellate court. Pitre v. Louisiana Tech

University, 673 So.2d 585, 589 (La. 1996), cert.

denied, 519 U.S. 1007, 117 S.Ct. 509, 186 L.Ed.2d 399

(1996).” Levine v. First National Bank of Commerce,

948 So.2d 1051, 1057 (La. 2006). Nonetheless, unless

consideration of an issue previously decided by a

lower court is necessary for advancement of the law,

the first step in determining whether to review an

issue subject to the “law of the case” doctrine in a

lower court is to determine whether the lower court

erred in its discretionary application of the doctrine

to its own ruling. See Pumphrey v. City of New

19

Orleans, 925 So.2d 1202, 1208 (La. 2006).° Diamond

does not even bother to explain how this case

presents a Daubert issue for this Court, since any

purported Daubert issue with regard to Dr. Jaffe was

settled long ago, on interlocutory writs, and the

Louisiana appellate courts properly applied their own

rules of appellate review to conclude that recon-

sideration of the issue was procedurally improper.

Ii. There is no writ worthy issue regarding

the sufficiency of the evidence

The standard of review is narrow on a causation

issue since a seaman is entitled to recover if it is

shown that the fault of the defendant played any

part, however small, in causing the injury. If there is

any evidence from which the jury may infer that

negligence played some contributing role in bringing

about the injury, even though entirely circumstantial

the burden of proof is met. Rogers v. Missouri Pacific

* This is logical because if a higher court simply ignores the

doctrine, and reviews any issue subject to the doctmne anew, as

if it had never been raised before, then the purposes of the law of

the case doctrine are frustrated. These purposes include

avoiding relitigation of the same issuc, promoting consistency of

results, and encouraging efficiency and fairness to the parties by

affording a single opportunity for the argument and decision of

the matter at issue See Coury Moss, Inc. v. Coury, 981 So 2d

936, 939 (La. App. 3rd Cir. 2008), writ denied, 981 So.2d 936 (La.

2008); Terrance v. Dow Chemical Co , 971 So.2d 1058, 1063 (La.

App. Ist Cir. 2007), writ denied, 970 So.2d 534 (La. 2007)

20

Railroad Co., 352 U.S. 500, 506-07, 77 S.Ct. 443, 447-

48 (1957). The Fifth Circuit has frequently charac-

terized this burden of proof as very light or feather-

weight. See Vallot v. Central Gulf Lines, Inc., 641 F.2d

347, 350 (5th Cir. 1981). Moreover, the jury is entitled

to make permissible inferences of causation from

unexplained events. Landry v. 2-R. Drilling Com

pany, 511 F.2d 138 (1975).

Dr. Jaffe’s testimony was more than sufficient to

meet that standard of proof, and even if it was not,

there is no writ worthy issue to consider here — just

an error in the application of a well-established rule.

Contrary to Diamond’s contention, the Court of

Appeal’s reliance on Davis v. Odeco, 18 F.3d 1237 (5th

Cir. 1994), cert. denied, sub nom., Murphy Ex-

ploration Company v. Davis, 513 U.S. 819, 115 S.Ct.

78, 130 L.Ed.2d 32 (1994), was not error. Davis was

not a pre-Daubert case, as Diamond contends. Davis

had nothing to do with admissibility of expert

testimony. Rather, Davis was a case which clearly

held that the opinion of an expert, if admitted, that

plaintiff's exposure to hydrocarbons caused him to

contract a rare disease was sufficient to meet the

“featherweight” standard because “there was not a

complete absence of probative factual evidence on the

issue of medical causation — as there must be to

overturn a jury verdict under the Jones Act. /d., at

1242.

If anything, it is Diamond that is trying to use

this writ to entreat this Court to change the law, by

conflating the Daubert test with the burden of proof

21

standard in maritime cases. Diamond would have

this Court use the Daubert rule to decide whether

the burden of proof has been met, thus eviscerating

the “featherweight” standard of proof, instead of

respecting that the Daubert issue relates to admis-

sibility of evidence, leaving to the jury the role of

evaluating the weight to be given to evidence

presented to it. Current case law recognizes this

distinction. There is no reason given by Diamond for

this Court to grant writs and overturn that body of

jurisprudence.’

" Interestingly, in the Davis v. Odeco case, the defendant

sought writs to this Court making the identical argument

Diamond makes herein:

The age of “toxic tort” litigation is upon us. In

increasing numbers, litigants are asking lay juries to

decide complex medical issues which decades of

medical experts have been unable to resolve. The

Fifth Circuit’s decision, if allowed to stand, means

that any Jones Act claimant may, on the most scant

medical evidence, establish employer negligence and

medical causation to support a jury award for any

disease which develops, regardless of the tenuous

connection between employment and genesis of the

disease. This is an issue of significant importance, as

a single medical witness who makes a causal

connection for a Jones Act plaintiff under his

“featherweight” burden of proof can *12 now establish

employer liability. This is a departure from the

direction of this Court’s decisions, such as Daubert v

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113

S.Ct. 2786 (1993).

Murphy Exploration & Production Company, Petitioner v. Willve

Earl Davis, Respondent, 1994 WL 16101716 (Appellate Petition,

(Continued on following page)

22

III. There is no writ worthy issue about main-

tenance and cure for an incurable disease.

Maximum medical cure occurs when “it is

probable that further treatment will result in no

betterment in the claimant’s condition.” Rashdi uv.

Am. Presidential Lines, 96 F.3d 124, 128 (5th Cir.

1996). See e.g., Boudreaux v. United States, 280 F.3d

461, 468 (5th Cir. 2002). (“As the court found that

further treatment would, in fact, improve Boudreaux’s

condition, it necessarily follows that he has not

reached maximum medical cure.”).

Both Dr. Carter, the treating physician, and

Dr. Jaffe testified that Mr. Lewis would improve, if he

continued to receive chelation therapy and hyperbaric

treatment, although he would never be cured. P. Ex.

8, at 138. The jury was shown a video tape docu-

menting the effects of the treatment, and showing

that Mr. Lewis has regained some use of his ex-

tremities as a result of treatment. See P-Ex. 20. Dr.

Paul Harsch, the doctor administering these treat-

ments, concurred that more treatment would produce

even further gains. Supp. Tran. 9-18-07, IV of 8, at

13-16.

There was no error in the application of these

facts to the law. The jury was free to reject Diamond’s

Motion and Filing) (U.S. Jun. 10, 1994) Petition for Writ of

Certioran (No 931986) This Court denied certiorari. Murphy

Exploration & Production Co. v. Davis, 513 U.S. 819, 115 S.Ct.

78, 130 L.Ed.2d 32 (1994).

23

repeated mantra that Mr. Lewis’ condition was

“incurable,” and accept the more humane view that

anything that would improve his condition should be

done, and the law provides that Diamond is liable for

any expenses incurred in so doing.

Moreover, if there was error, it was harmless.

The Court oi Appeal shifted a future medical care

award of $1.2 million from general damages to “cure.”

If these damages were not available as “cure,” they

were available as general damages, and so Mr. Lewis

has received no undue recovery.

IV. There is no writ worthy issue about future

cure.

Future cure is awardable in certain circum-

stances. Future maintenance and cure can be

awarded only in “such amounts as may be needful in

the immediate future for the maintenance and cure of

a kind and for a period which can be definitely

ascertained,” at the time of the award. Moreover,

maintenance and cure cannot be awarded beyond the

time when maximum possible cure has been affected,

and the seaman’s physical condition has become fixed

beyond further improvement. Gypsum Carrier, Inc. v.

Handelsman, 307 F.2d 525, 532 (9th Cir. 1962), citing

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531-32, 58

S.Ct. 651, 82 L.Ed. 993 (1938).

Respondent’s complaint here is that there was an

error in the factual finding that Mr. Lewis’ need for

24

care was “immediate” and for a “period which can be

definitely ascertained.” Such alleged factual errors do

not present a writ worthy consideration for this

Court.

Moreover, any error is moot. If “future cure”

should not have been awarded, the amount of “future

cure” awarded here, $1.2 million, would have to be

added back into general damages, from which it was

subtracted by the Court of Appeal. At the end of the

day, the amount of Mr. Lewis’ recovery is completely

unaffected.

V. There is no writ worthy issue with regard

to collateral payments.

Diamond attempts to fabricate a legal issue with

regard to alleged collateral payments made to the

Lewises, for which it should have received a credit

against its cure award. Pretermitting the issue of

whether the collateral source rule applies, the Court

of Appeal rejected any credit because Diamond failed

to carry its burden of proof with regard to the

existence or amount of such collateral payments.

Moreover, Diamond failed to plead the affirmative

defense of set-off as it was required to do in order to

claim this credit. Even if there was a mistake as to

25

the proof,’ which there was not, no legal error worthy

of this Court’s attention was committed.

¢

CONCLUSION

For the reasons expressed herein, petitioner’s

petition for writ of certiorari should be denied.

Respectfully submitted,

ROBERT E. ARCENEAUX

47 Beverly Garden Drive

Metairie, LA 70001

(504) 833-7533

Attorney for Respondent

Jimmy Lewis

* There was no mistake as to Diamond's failure to prove its

claim. The only evidence it can point to are the Lewis’ medical

records, which were admitted by stipulation. Diamond, however

reserved the rmght to question Mr Lewis about whether any

expenses reflected therein were “actually incurred,” see Supp

Trans 9-18-08, III of 8, at 5, but it did not avail itself of this

opportunity Moreover, while the records might show who paid

some of the bills, such as Medicaid or Mr. Lewis’ private insurer,

they do not show what subrogation rights attached to these

payments. If Medicaid had a right to subrogation (which it does

under federal law) or if Mr. Lewis’ insurer had such a right

under the terms of the insurance policy (which is customary),

then these “collateral” payments were not free of cost to Jimmy

Lewis, and allowing Diamond a set-off would double penalize

Mr. Lewis for them.