Novelozo v. BP Exploration & Production Inc. et al
ORDER AND REASONS granting 25 Motion in Limine to exclude the causation testimony of Dr. Jerald Cook. FURTHER ORDERED that 26 Motion for Summary Judgment is granted. Novelozo's claims are dismissed with prejudice. Signed by Judge Lance M Africk on 05/09/2022. (ko)
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 1 of 23
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BP EXPLORATION & PRODUCTION
INC., ET AL.
ORDER & REASONS
Before the Court is a motion 1 in limine to exclude the opinions of plaintiff ’s
medical causation expert, Dr. Jerald Cook (“Cook”), filed by defendants, BP
Exploration & Production, Inc., BP America Production Company, and BP p.l.c.
(collectively, “BP”). BP has also filed a motion 2 for summary judgment, contending
that if the Court grants BP’s motion in limine, then summary judgment will also be
warranted because plaintiff, Urlic Novelozo (“Novelozo”), will lack necessary expert
testimony. Novelozo opposes 3 both motions. For the following reasons, the Court
grants BP’s motion in limine and BP’s motion for summary judgment. 4
R. Doc. No. 25 (motion in limine); R. Doc. No. 40 (reply memorandum).
R. Doc. No. 26.
3 R. Doc. No. 25 (opposition to motion in limine); R. Doc. No. 43 (sur-reply
memorandum with respect to motion in limine); R. Doc. No. 34 (opposition to motion
for summary judgment).
4 This opinion is nearly identical to this Court’s opinion resolving a similar motion in
limine and a motion for summary judgment in Murphy v. BP Exploration &
Production, Inc., et al., Civil Action No. 13-1031. The plaintiff in Murphy also
retained Cook to serve as an expert witness, and the motions in both cases were
submitted contemporaneously. In each case, the parties’ arguments identified the
same issues, and Cook’s opinions suffered from the same infirmities.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 2 of 23
The instant action is a “B3” case arising out of the 2010 Deepwater Horizon oil
spill in the Gulf of Mexico. 5 B3 cases involve “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).” See In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of
Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1,
2021) (Barbier, J.).
During the course of the MDL proceedings, Judge Barbier
approved the Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, which included a Back-End Litigation Option (“BELO”) permitting
certain class members to sue BP for later-manifested physical conditions. Id. at *2.
The B3 plaintiffs, by contrast, either opted out of the class action settlement
agreement or were excluded from its class definition. Id. at *10 n.3. In any event,
“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.” 6
Novelozo alleges that from June through August of 2010 he did oil clean-up
work on beaches in Florida following the Deepwater Horizon oil spill. 7 According to
Novelozo, he was exposed to both oil and dispersants. 8 Novelozo also alleges that, as
R. Doc. No. 9 (“Severing 780 Cases in the B3 Pleading Bundle and Re-allotting Them
Among the District Judges of the Eastern District of Louisiana”) (Barbier, J.).
6 R. Doc. No. 9, at 53 (“Case Management Order for the B3 Bundle”) (Barbier, J.); see
id. at 54 (noting that “proving causation will be a key hurdle for the B3 plaintiffs.”).
7 R. Doc. No. 1, at 8.
8 Id. at 1.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 3 of 23
a result of this exposure, he suffers from a lengthy list of unpleasant symptoms. 9
Novelozo filed the instant civil action, seeking a bench trial with respect to his claims
of negligence under general maritime law. 10
Novelozo relies on Cook, a retired Navy physician with a master’s degree in
environmental toxicology, to provide a medical causation analysis supporting
Novelozo’s claim that his exposure to oil and dispersants caused his health
problems. 11 Cook is board certified in occupational medicine, public health, and
general preventive medicine. Cook is also a fellow of the American College of
Occupational and Environmental Medicine. 12
Cook reviewed Novelozo’s medical records, employment records, claim
documents, other records, and two additional expert reports. 13 With respect to the
chemicals that Novelozo encountered during his cleanup work, Cook “primarily relied
on the exposure assessment conducted by Rachael Jones, Ph.D., CIH.” 14 Based on
Jones’ exposure report, Cook noted that “Novelozo was exposed to volatile organic
Id. at 8. Among other symptoms, Novelozo alleges that he suffers from “dizziness,
lighted headiness, stomach problems, stress, skin rashes, respiratory problems,
breathing problems, sleep problems, abdominal pain, bowel problems, nausea, vision
problems, memory problems, bloody nose, low sexual drive and lose [sic] of energy.”
10 R. Doc. No. 1, at 10–15; R. Doc. No. 22 (scheduling order), at 3 (noting, after a
conference with counsel, that the matter is set for trial “before the District Judge
without a jury.”) (emphasis in original).
11 R. Doc. No. 25-3, at 1–2.
13 Id. at 4.
14 Id. Dr. Rachael Jones (“Jones”) produced a report report: Exposures of Mr. Ulric
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 4 of 23
compounds, polycyclic aromatic hydrocarbons, elevated
fine particulate matter
(PM2.5), crude oil or oily water.” 15
To the Court’s astonishment, Cook’s report includes the statement that
“Novelozo had reported in our phone conversation that he had used personal
protective equipment (PPE).” 16 However, Cook stated in his deposition testimony
that he “never actually connected with [Novelozo],” so Cook prepared his report
“without an interview, and [Cook had] never spoken with [Novelozo].” 17
questioned further, Cook confirmed that he “issued [his] report without the benefit of
[Novelozo’s] deposition and without ever having spoken to [him].” 18 Novelozo does
not explain this discrepancy between Cook’s testimony and his report.
Cook’s report is organized into several sections. The first outlines his
qualifications, which BP does not challenge. 19 The next sections identify materials
that Cook reviewed to formulate his opinion. Next, Cook’s report describes the
methodology he used in connection with his general causation analysis related to the
following diseases: chronic rhinosinusitis, respiratory illness, dermatitis, and dry eye
and chronic conjunctivitis. 20 Cook then details a specific causation analysis with
respect to Novelozo and those diseases. 21
R. Doc. No. 25-3, at 6.
R. Doc. No. 25-3, at 6 (emphasis added).
17 R. Doc. No. 47-1, at 15.
19 R. Doc. No. 25-1, at 8.
20 R. Doc. No. 25-3, at 28–42.
21 Id. at 42–44.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 5 of 23
In the context of his general causation analysis, Cook performed a “literature
review of peer-reviewed studies,” where his sources were “selected based on the
quality of the study and study design.” 22 According to Cook, “[t]he hierarchy of
clinical evidence shows that systematic reviews and metanalyses are the most
reliable in predicting clinical outcomes because they are designed to include the most
relevant collection of available studies.” 23
In connection with his literature review, Cook consulted the Bradford Hill
factors, which environmental toxicologists employ for causation analysis. 24
Bradford Hill factors include: (1) temporal relationship; (2) strength of the
association; (3) dose-response relationship; (4) replication of the findings; (5)
biological plausibility; (6) consideration of alternative explanations; (7) cessation of
exposure; (8) specificity of the association; and (9) consistency with other
Cook explains that “[d]rawing causal inferences after finding an
association and considering these factors requires judgment and analysis to
determine if a cause-and-effect relationship exists or not.” 26
In terms of general causation, Cook’s report concluded that “exposure to
volatile organic compounds, polycyclic aromatic hydrocarbons, elevated fine
Id. at 21.
24 Id. at 22. “Sir Bradford Hill was a world-renowned epidemiologist who articulated
a nine-factor set of guidelines in his seminal methodological article on causality
inferences.” Jones v. Novartis Pharm. Corp., 234 F. Supp. 3d 1244, 1267 (N.D. Ala.
2017) (internal citations and quotations omitted).
25 R. Doc. No. 25-3, at 22–23.
26 Id. at 22.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 6 of 23
particulate matter (PM2.5), and crude oil or oily water can result in chronic
conjunctivitis[.]” 27 Ultimately, Cook opined that “[i]t is within a reasonable degree of
medical certainty that” Novelozo’s exposures performing oil spill clean-up work “are
a significant, contributing cause” of “his symptoms, rashes, skin irritation, itching,
sinus problems, eye irritation, and breathing problems.” 28
STANDARDS OF LAW
Motion in Limine Standard
As an initial matter, the Fifth Circuit has “noted that the importance of the
trial court’s gatekeeper role is significantly diminished in bench trials, as in this
instance, because, there being no jury, there is no risk of tainting the trial by exposing
a jury to unreliable evidence.” Whitehouse Hotel Ltd. P’ship v. C.I.R., 615 F.3d 321,
330 (5th Cir. 2010) (citing Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000)). Courts
have taken this point into consideration when denying Daubert motions filed before
bench trials. See, e.g., Trevelyn Enters., L.L.C. v. SeaBrook Marine, L.L.C., No. 1811375, 2021 WL 65689, at *2 (E.D. La. Jan. 7, 2021) (Lemmon, J.). But, “[a]lthough
the ‘gate-keeper’ role may be diminished, the Court is still required to perform its
gate-keeping function.” United States v. E.R.R. LLC, No. 19-2340, 2020 WL 2769881,
Id. at 44.
Id. Cook’s conclusion does not specifically link Novelozo’s symptoms to the illnesses
that Cook considered, i.e. chronic rhinosinusitis, respiratory illness, dermatitis, and
dry eye and chronic conjunctivitis.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 7 of 23
at *3 (E.D. La. May 28, 2020) (Fallon, J.) (citing Metavante Corp. v. Emigrant Sav.
Bank, 619 F.3d 748 (7th Cir. 2010)).
Federal Rule of Evidence 702 governs the admissibility of expert witness
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 588 (1993);
United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). 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
(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;
(d) the expert has reliably applied the principles and methods to the
facts of the case.
“To qualify as an expert, ‘the witness must have such knowledge or experience in [his]
field or calling as to make it appear that his opinion or inference will probably aid the
trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir.
2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)).
Daubert “provides the analytical framework for determining whether expert
testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,
243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to
the Daubert framework, which requires a trial court to make a preliminary
assessment to “determine whether the expert testimony is both reliable and
relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir.
2004); see Kumho Tire, 526 U.S. at 147.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 8 of 23
A number of nonexclusive factors may be considered with respect to the
reliability inquiry, including: (1) whether the technique has been tested, (2) whether
the technique has been subjected to peer review and publication, (3) the technique’s
potential error rate, (4) the existence and maintenance of standards controlling the
technique’s operation, and (5) whether the technique is generally accepted in the
relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry
must remain flexible, however, as “not every Daubert factor will be applicable in every
situation; and a court has discretion to consider other factors it deems relevant.” Guy
v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex.
Children’s Hosp. Select Plan, 167 F. App’x 377, 381 (5th Cir. 2006) (“[A] trial judge
has ‘considerable leeway’ in determining ‘how to test an expert’s reliability.’” (quoting
Kumho Tire, 526 U.S. at 152)). “Both the determination of reliability itself and the
factors taken into account are left to the discretion of the district court consistent
with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301
(5th Cir. 2000).
As for determining relevancy, the proposed testimony must be relevant “not
simply in the way all testimony must be relevant [under Rules 401 and 402], but also
in the sense that the expert’s proposed opinion would assist the trier of fact to
understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d
581, 584 (5th Cir. 2003). “There is no more certain test for determining when experts
may be used than the common sense inquiry whether the untrained layman would be
qualified to determine intelligently and to the best degree the particular issue
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 9 of 23
without enlightenment from those having a specialized understanding of the subject
involved in the dispute.” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003)
(quoting Fed. R. Evid. 702, Advisory Committee Note).
“[W]hen expert testimony is challenged under Rule 702 and Daubert, the
burden of proof rests with the party seeking to present the testimony.” Kennedy v.
Magnolia Marine Transp. Co., 189 F. Supp. 3d 610, 615 (E.D. La. 2016) (Africk, J.).
The Court applies a preponderance of the evidence standard when performing its
gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. And the
Court is not bound by the rules of evidence—except those rules concerning
privileges—when doing so. See id.
Summary Judgment Standard
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, a court determines that
there is no genuine dispute of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment
always bears the initial responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce
evidence negating the existence of a material fact; it need only point out the absence
of evidence supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 10 of 23
allegations should suffice to require a trial when there is no evidence to support them
even if the movant lacks contrary evidence.”).
Once the party seeking summary judgment carries that burden, the
nonmoving party must come forward with specific facts showing that there is a
genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by
creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
“Although the substance or content of the evidence submitted to support or
dispute a fact on summary judgment must be admissible . . . the material may be
presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore
Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).
The party responding to the motion for summary judgment may not rest upon the
pleadings but must identify specific facts that establish a genuine issue.
Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be
believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]
favor.” Id. at 255.
LAW & ANALYSIS
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 11 of 23
BP’s Motion in Limine
B3 plaintiffs have the burden of proving that “the legal cause of the claimed
injury or illness is exposure to oil or other chemicals used during the response.” In re
Oil Spill by Oil Rig “Deepwater Horizon”, 2021 WL 6053613, at *11; accord Perkins
v. BP Expl. & Prod., Inc., No. 17-4476, 2022 WL 972276, at *2 (E.D. La. Mar. 31, 2022)
“Courts use ‘a two-step process in examining the admissibility of causation
evidence in toxic tort cases. First, the district court must determine whether there is
general causation. Second, if it concludes that there is admissible general-causation
evidence, the district court must determine whether there is admissible specificcausation evidence.’” Seaman v. Seacor Marine, LLC, 326 F. App’x 721, 722 (5th Cir.
2009) (quoting Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)
(emphases added in Seaman)). “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.”
(quoting Knight, 482 F.3d at 351).
With respect to general causation, “[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 plaintiffs’ burden in a toxic tort
case.” Id. (quoting Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)). “A
plaintiff in such a case cannot expect lay fact-finders to understand medical
causation; expert testimony is thus required to establish causation.” Id.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 12 of 23
Cook’s General Causation Analysis
Cook fails to verify Novelozo’s illnesses:
BP first objects that Cook failed to perform a necessary threshold task in his
analysis: establishing or verifying Novelozo’s diagnoses. 29 BP references the
American Medical Association’s Guide to the Evaluation of Disease and Injury
Causation (“AMA Guide”), which Cook maintains in his office as a “ready reference.” 30
According to the AMA Guide:
The first step is to establish or verify the diagnosis (i.e., determine what
is wrong with the patient, or what does the patient have?). This step is
accomplished by careful review of the available medical records and/or
examination of the patient. […] Exposure becomes relevant only when
the presence of disease or illness is established. 31
BP also emphasizes32 that Cook’s report notes the importance of a person’s diagnosis:
“There are multiple reasons why [Novelozo] may be experiencing symptoms. A wellexplained diagnosis may provide clues as to the etiology of his health problems.” 33
When questioned in his deposition, Cook agreed that a symptom, as opposed to a
“condition and/or disease” are different things, and that “multiple diseases might
produce similar symptoms.” 34
Cook’s report states that, based on the available medical records, Novelozo “has
R. Doc. No. 25-1, at 8.
R. Doc. No. 25-4, at 67.
31 R. Doc. No. 25-1, at 8 (quoting Melhorn, M.D., et al., AMA Guide to the Evaluation
of Disease and Injury Causation, (2d ed.) (attached to defendants’ motion as R. Doc.
No. 25-5) at 578 (emphasis added)).
32 Id. at 9.
33 R. Doc. No. 25-3, at 43.
34 R. Doc. No. 25-4, at 70–71.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 13 of 23
not had a complete workup to determine the specific diagnoses for his chronic and
frequently recurring symptoms.” 35 In his deposition, Cook agreed that his ability to
verify Novelozo’s diagnoses was “compromised” and not “well-established.” 36
Further, Cook testified that he was “unable to perform step 1 [of the AMA Guide] to
[his] satisfaction,” and Cook had to rely on “the very limited information,” available. 37
Expert testimony “must be reliable at each and every step or else it is
inadmissible.” Knight, 482 F.3d at 355. The Court’s review of the relevant section of
the AMA Guide—which BP included in the record—demonstrates that the AMA’s
framework is a published technique with explicit standards controlling its operation.
Burleson, 393 F.3d at 584 (discussing the nonexclusive factors for the reliability
inquiry). But Cook’s inability to perform step one of the AMA Guide’s framework “to
[his] satisfaction” is concerning because “[e]xposure becomes relevant only when the
presence of disease or illness is established.” 38 Cook’s failure to establish Novelozo’s
potential diseases reveals that Cook has not “reliably applied the principles and
methods to the facts of this case.” Fed. R. Evid. 702(d).
This deficiency is particularly concerning because “the fundamental question
underlying [Cook’s] testimony,” as well as the Court’s ruling on BP’s Daubert motion,
is “whether the chemicals that [Novelozo was] exposed to and the type of exposures
[Novelozo] experienced cause [Novelozo’s illnesses].”
R. Doc. No. 25-3, at 43.
R. Doc. No. 25-4, at 69–70.
37 Id. at 70.
38 25-5, at 3 (emphasis added).
Knight, 482 F.3d at 352.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 14 of 23
Without verifying Novelozo’s diagnoses, Cook has not sufficiently explained how any
particular study can provide “a reliable basis for the opinion that the types of
chemicals [Novelozo was] exposed to could cause [his] particular injury in the general
population.” Id. at 353. This lack of verification weighs against admitting Cook’s
Cook does not follow a sequential process for his analysis:
With respect to general causation, the Fifth Circuit has explained that “the
most useful and conclusive type of evidence […] is epidemiological studies.” Allen, 102
F.3d at 197. “When, as here, a review of epidemiological studies forms the basis of
an expert opinion, the essential first step requires the expert to identify an
association noted in the literature between exposure to the toxic agent and a
particular disease or adverse effect.” In re Deepwater Horizon BELO Cases, No. 19963, 2020 WL 6689212, at *10 (N.D. Fla.) (Rodgers, J.) (citing the Federal Judicial
Center’s Reference Manual on Scientific Evidence, at 566 (3d ed. 2011) (hereinafter,
Federal Reference Manual)). 39
“The second step requires a determination by the expert of whether the
identified association ‘reflects a true cause-effect relationship’ between exposure to
the substance at issue and the disease.” Id. (quoting Federal Reference Manual at
Judge Rodgers’ opinion addressed a group of BELO plaintiffs who were selected for
a bellwether process that began with resolving the issue of general causation. 2020
WL 6689212, at *1. Judge Rodgers concluded that the expert’s opinion in that case
fell “woefully short,” of the Daubert standard, id. at *12, and the Eleventh Circuit
affirmed, describing Judge Rodgers’ analysis as “well-reasoned.” In re Deepwater
Horizon BELO Cases, No. 20-14544, 2022 WL 104243 (11th Cir. 2022) (per curiam).
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 15 of 23
597). “To make this determination, scientists consider other criteria indicative of
causation, such as the widely recognized Bradford Hill factors.” Id. The Federal
Reference Manual emphasizes that “these guidelines [for evaluating causation] are
employed only after a study finds an association to determine whether the association
reflects a true causal relationship.” Federal Reference Manual, at 598-99 (emphasis
According to BP, “[t]hat is not how [Cook] went about his general causation
analysis.” 40 BP argues that “Cook testified that he reviews epidemiology during his
Bradford Hill analysis rather than beforehand.” 41 Indeed, BP’s concern is wellfounded because, at his deposition, Cook testified that “[he] did not specify a
sequential process.” 42 Cook conceded that he did not document a positive association
in his report before proceeding to a causation analysis. 43 Further, Cook stated that
he “did not follow a -- a cookbook or recipe,” and that he did not think that he
“described [his] method well enough for any peer to review it.” 44
“[T]he party seeking to have the district court admit expert testimony must
demonstrate that the expert’s findings and conclusions are based on the scientific
method, and, therefore, are reliable.” Moore v. Ashland Chemical, Inc., 151 F.3d 269,
276 (5th Cir. 1998). “This requires some objective, independent validation of the
expert’s methodology.” Id. “The expert’s assurances that he has utilized generally
R. Doc. No. 25-1, at 11.
Id. (emphasis in original).
42 R. Doc. No. 47-1, at 22.
43 Id. at 22–23.
44 R. Doc. No. 25-6, at 8–9.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 16 of 23
accepted scientific methodology is insufficient.” Id.
Cook’s failure to follow a methodology that has “objective, independent
validation,” is concerning to the Court. Id. Novelozo attempts to justify Cook’s
methodology by arguing that “the existence of epidemiology that supports an
association is what is important, not the order that the analysis is done.” 45 But even
Cook’s report notes that “[d]rawing causal inferences after finding an association and
considering [the Bradford Hill] factors requires judgment and analysis to determine
if a cause-and-effect relationship exists or not.” 46 Cook’s deposition testimony reveals
that Cook did not identify the required association in the epistemological literature
before proceeding to the Bradford Hill analysis. In light of that testimony, Novelozo
has failed to demonstrate that Cook’s methodology is “generally accepted in the
relevant scientific community.” Burleson, 393 F.3d at 584. This deficiency weighs
against admitting Cook’s opinions.
Cook fails to establish the relevancy of studies that he consulted:
Next, BP protests that Cook’s report relies on studies unrelated to the
Deepwater Horizon spill and that Cook fails to explain why those other studies are
relevant here. 47 Specifically, BP notes that Cook’s report “cites studies from the 2003
Tasman Spirit tanker spill in Pakistan, from the 1996 Sea Empress tanker spill in
the United Kingdom, and from the 2002 Prestige tanker spill off the coast of Spain.” 48
R. Doc. No. 35, at 8–9.
R. Doc. No. 25-3, at 22 (emphasis added).
47 R. Doc. No. 25-1, at 12.
48 Id. at 12–13.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 17 of 23
BP maintains that in referencing these other incidents, Cook does not “explain how
the products spilled in those places compared to the weathered oil from the
Deepwater Horizon spill, or how the workers’ exposures were similar or different.” 49
“[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). “A
court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered.” Id.
With respect to Judge Rodgers’ exclusion of medical causation evidence offered
by Dr. Patricia Williams, the Eleventh Circuit noted with approval Judge Rodgers’
“well-reasoned” observations that Williams referenced studies of oil spills that
“occurred close to shore and involved fresh crude oil, whereas the Deepwater Horizon
spill occurred approximately 125 miles offshore of Florida, and exposed cleanup
workers on Florida beaches to weathered oil.” 2022 WL 104243, at *2. Essentially,
there was “no evidence” that the conditions present in the cases before Judge Rodgers
“were somehow comparable to the conditions present in the[ ] studies [cited by Dr.
Williams].” Id. at *3.
Cook’s report suffers from this very same flaw. Cook mentions the reported
findings concerning the Tasman Spirit, the Sea Empress, and the Prestige oil spills. 50
But Cook fails to adequately explain any similarity between those studies and the
Id. at 13.
R. Doc. No. 25-3, at 32, 38–39, 50.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 18 of 23
Deepwater Horizon spill, 51 even though Cook acknowledges that “weathered crude
oil differs from the specific chemicals of fresh crude oil.” 52 In short, Cook’s opinions
are connected to these studies merely by his ipse dixit, and “there is simply too great
an analytical gap between the data and the opinion proffered.” Joiner, 522 U.S. at
Cook fails to identify a harmful dose:
BP also contends that Cook’s general causation opinions should be excluded
because they fail to identify a harmful dose of exposure to any chemical. 54 The Court
As previously stated, a causation expert must identify “the harmful level of a
exposure to a chemical.” Allen, 102 F.3d at 198-199. The Fifth Circuit states that
Id. at 27.
53 In his opposition memorandum, Novelozo stresses that Cook also relied “on the
results [sic] peer reviewed scientific studies coming from the GuLF STUDY[.]” See
R. Doc. No. 35, at 9. Cook’s generalized summary of the GuLF Study is unreliable
because Cook merely restates the study’s hypothesis without any evaluation of the
study’s findings. R. Doc. No. 25-3, at 24 (“The researchers set out with the hypothesis
that exposure to constituents of oil, dispersants, and oil-dispersant mixtures, as well
as to spill-related stress by workers engaged in clean-up of the Deepwater Horizon
oil spill, are associated with adverse health effects, particularly those associated with
respiratory, neurological, hematologic, and psychological or mental health.”
(emphasis added)). Cook appears to conclude that the GuLF Study and another study
by Alexander “consistently demonstrate a cause-and-effect relationship between
exposure to these oil products and subsequent adverse health effects.” Id. But Cook
does not specify the particular “adverse health effects” that the studies found.
Similarly, Cook includes this discussion in the portion of his report dedicated to
“strength of the association.” But Cook performs no actual analysis regarding the
strength of the association, such as with a statistical confidence interval—one of the
tools that Cook mentions to measure such strength. On balance, Cook’s conclusion
lacks supporting reasoning.
54 R. Doc. No. 25-1, at 14–15.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 19 of 23
this detail is one of the “minimal facts necessary to sustain the plaintiff’s burden in a
toxic tort case.” Id. at 199. See also McGill v. BP Expl. & Prod., Inc., 830 F. App’x
430, 433 (5th Cir. 2020) (affirming the exclusion of an expert’s opinions when “[n]one
[of the studies on which the expert relied] provide conclusive findings on what
exposure level of Corexit is hazardous to humans.”).
BP has repeatedly emphasized Cook’s failure to specify a harmful dose of any
chemical to which Novelozo was allegedly exposed. 55 Novelozo asserts that BP’s
argument is “wrong,” and points to a portion of a report, authored by Jones, upon
which Cook relied. 56 However, the referenced portion of Jones’ report in no way
establishes a harmful level of a chemical.
Specifically, Jones’ report lists that
Novelozo was exposed to volatile organic compounds, polycyclic aromatic
hydrocarbons, particulate matter, crude oil, oily water, sand, and dispersants. 57
While Jones’ report does provide statistical approximations of the amounts of these
various substances to which Novelozo was exposed, Jones in no way quantifies the
level at which these substances are unsafe or harmful to humans. 58
R. Doc. No. 25, at 1 (“Cook’s general causation opinions fail to identify the harmful
level of exposure to weathered oil needed to cause the plaintiff’s alleged conditions.”);
R. Doc. No. 25-1, at 14–15; R. Doc. No. 40, at 2 (“[T]he plaintiff’s opposition never
addresses [Cook’s] failure to identify a harmful level of toxic exposure capable of
causing Novelozo’s injuries. […] Cook does not mention a causal dose of a toxicant
anywhere in his report.”).
56 R. Doc. No. 35, at 4.
57 R. Doc. No. 35-1, at 20–21.
58 Id. “Yet, Dr. Prellop makes no connection between Ferox and bladder cancer
specifically. And, she provides no clue regarding what would be a harmful level of
Ferox exposure.” Seaman, 326 F. App’x at 722 (citations omitted) (emphasis in
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 20 of 23
In that section of his report related to the third Bradford Hill factor, “dose
response relationship,” Cook notes that “[t]here is a toxicology maxim that the dose
determines the poison.” 59 Even though Cook cites to a study of “BP Gulf Oil Spill
Disaster response workers,” and Cook mentions the risk of exposure to fine
particulate matter and volatile compounds, he provides no analysis or discussion of
the level of these chemicals that would “determine[ ] the poison,” even though this
section of his report is dedicated to the issue of a dose response relationship. 60 Cook’s
deposition testimony likewise confirms that he was unable “to identify the dose of
these toxic chemicals that were necessary to cause any of the health effects,”
discussed in Cook’s report. 61 This failure weighs heavily in favor of exclusion.
Novelozo presents other evidence outside Cook’s report:
Novelozo attempts to buttress Cook’s opinions by referencing several other
items of evidence, including materials that Novelozo acquired after Cook produced
his report, such as a “general causation report” authored by Jones, 62 and Exhibits 3
R. Doc. No. 25-3, at 24.
Cf. id. at 6 (noting that “aromatic compounds have known toxicity” yet failing to
state the known level of toxicity).
61 R. Doc. No. 47-1, at 45–46.
62 R. Doc. No. 35, at 10. Although Novelozo characterizes this document as a “general
causation report,” it is instead a report detailing occupational exposures among
workers that participated in the Deepwater Horizon oil spill clean-up activities. See
R. Doc. No. 35-3, at 1. Specifically, in the pages that Novelozo references, the report
details the nature and extent of workers’ exposures to certain types of chemicals in
prior oil spill incidents. Id. at 17–24. While Jones—who has a PhD degree, but is not
a medical doctor—summarizes the findings of a number of studies, she does not
provide a general causation opinion. Id.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 21 of 23
and 4 to Novelozo’s sur-reply memorandum. 63 But as Novelozo concedes in his surreply memorandum, Cook does not rely on these documents to support his causal
opinion, and Novelozo states that he does not seek to amend or supplement his expert
reports. 64 The Court cannot review these items of evidence and form its own expert
opinion that was not offered by a party. Seaman, 326 F. App’x at 722 (“A plaintiff in
such a case cannot expect lay fact-finders to understand medical causation; expert
testimony is thus required to establish causation.”).
Overall, an “expert must ‘employ[ ] in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.’”
Wells v. SmithKline Beecham Corp., 601 F.3d 375, 378 (5th Cir. 2010) (quoting Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Such rigor is not evident on this
After reviewing Cook’s expert report, his deposition testimony, and the
authorities provided by the parties, the Court determines, based on the various
shortcomings identified above, that Novelozo has failed to meet his burden to prove
by a preponderance of the evidence that Cook’s report is reliable with respect to his
general causation analysis. On the contrary, Cook’s opinions are not the product of
reliable principles and methods, and Cook has not reliably applied his principles and
R. Doc. Nos. 43-3 & 43-4. Exhibit 3 is a document consisting of 25 pages, and
Novelozo maintains that it “shows BP’s knowledge of the analytes found in crude oil
and the associated health effects, as the Court will see when it reviews Exhibit 3.”
See R. Doc. No. 43, at 4. But Novelozo does not specify the “health effects,” he claims
are associated with the analytes found in crude oil, and he does not direct the Court’s
attention to any specific page of the exhibit. United States v. Del Carpio Frescas, 932
F.3d 324, 331 (5th Cir. 2019) (“Judges are not like pigs, hunting for truffles buried in
the record.”) (quotation marks and citation omitted).
64 R. Doc. No. 43, at 3.
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 22 of 23
methods to the facts of this case. Fed. R. Evid. 702(c), (d). 65
BP’ Motion for Summary Judgment
Having determined that Cook’s opinions should be excluded, the Court now
turns to BP’s motion for summary judgment. After reviewing the parties’ arguments,
the Court concludes that summary judgment must be granted.
BP specifies that “Novelozo’s only expert offering an opinion regarding medical
causation is [Cook.]” 66
Further, BP argues that without Cook’s opinions, all of
Novelozo’s claims will lack necessary expert support to meet his burden of proof with
respect to causation. 67
Novelozo does not dispute that Cook is his only expert for medical causation. 68
Novelozo’s opposition to BP’s motion for summary judgment rests entirely on his
opposition to BP’s motion in limine. 69 Novelozo advances no other arguments in
Because Novelozo has not demonstrated that Cook’s opinions are admissible, the
Court need not reach the issue of specific causation. “Evidence concerning specific
causation in toxic tort cases is admissible only as a follow-up to admissible generalcausation evidence. […] if [the court] concludes that there is admissible generalcausation evidence, the district court must determine whether there is admissible
specific-causation evidence.” Johnson v. Arkema, Inc., 685 F.3d 452, 468 (5th Cir.
2012) (quoting Knight, 482 F.3d at 351).
66 R. Doc. No. 26-3, at 1.
67 R. Doc. No. 26-1, at 4–6.
68 R. Doc. No. 34-1, at 1; see also E.D. La. Local Civil Rule 56.2 (“All material facts in
the moving party’s statement will be deemed admitted, for purposes of the motion,
unless controverted in the opponent’s statement.”).
69 R. Doc. No. 34, at 1 (“Defendants’ motion [for summary judgment] is premised on
the Court granting [the] motion to exclude [Novelozo’s] causation expert, [Cook].
Case 2:13-cv-01033-LMA-KWR Document 50 Filed 05/09/22 Page 23 of 23
opposition to summary judgment, nor does he point to any other evidence in the
record to oppose summary judgment. 70
Because Novelozo lacks expert testimony with respect to the issue of general
causation, Novelozo has failed to present a genuine issue of material fact with respect
to his claims that his injuries were caused by exposure to oil and dispersants. BP is
therefore entitled to summary judgment. McGill, 2020 WL 6038677, at *3 (affirming
summary judgment against a Deepwater Horizon plaintiff in a BELO case after
plaintiff’s medical causation expert was excluded for failing to satisfy Fed. R. Civ. P.
702 and Daubert); Johnson v. BP Exploration & Prod., Inc., No. 19-10090, 2020 WL
6742799, at *2 (E.D. La. Nov. 17, 2020) (Barbier, J.) (granting summary judgment
against a plaintiff in a BELO civil action where the plaintiff lacked an expert opinion).
For all the foregoing reasons,
IT IS ORDERED that BP’s motion in limine to exclude the causation
testimony of Dr. Jerald Cook is GRANTED.
IT IS FURTHER ORDERED that BP’s motion for summary judgment
is GRANTED. Novelozo’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, May 9, 2022.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
[Novelozo has] opposed that motion [in limine] and if [Novelozo] prevails, this motion
for summary judgment must fail in that regard.”).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?