Booth v. BP Exploration & Production, Inc. et al

Filing 108

ORDER AND REASONS - IT IS ORDERED that Defendants' Motions in Limine (Docs. 85 & 87 ) and Motions for Summary Judgment (Docs. 86 & 88 ) are GRANTED, as set forth herein. IT IS FURTHER ORDERED that all of Plaintiffs' claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 10/28/2022. (Reference: Both Cases)(sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHIANTI LASHON BOOTH

CIVIL ACTION

VERSUS

NO. 17-3053
C/W 17-4608

BP EXPLORATION & PRODUCTION,
INC. ET AL.

SECTION: H

ORDER AND REASONS
Before the Court are Motions in Limine to Exclude the General
Causation Opinions of Plaintiffs’ Expert, Dr. Jerald Cook (Doc. 85, 87) and
Motions for Summary Judgment Due to Plaintiffs’ Inability to Prove Medical
Causation (Doc. 86, 88), filed by Defendants BP Exploration & Production, Inc.;
BP America Production Company; BP p.l.c.; Transocean Holdings, LLC;
Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.;
and Halliburton Energy Services, Inc. For the following reasons, these Motions
are GRANTED.
BACKGROUND
This consolidated action is one among the “B3 bundle” of cases arising
out of the Deepwater Horizon oil spill. 1 This bundle comprises “claims for
personal injury and wrongful death due to exposure to oil and/or other

See In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
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chemicals used during the oil spill response (e.g., dispersant).” 2 These cases
were originally part of a multidistrict litigation (“MDL”) pending in the
Eastern District of Louisiana before Judge Barbier. During this MDL, Judge
Barbier approved the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement, but the B3 plaintiffs either opted out of this agreement
or were excluded from its class definition. 3 Subsequently, Judge Barbier
severed the B3 cases from the MDL to be reallocated among the judges of this
Court. 4 This case was reassigned to Section H.
Plaintiffs Chianti Booth and Carlos Thomas each allege continuous
exposure to oil and dispersants while working to clean-up the Deepwater
Horizon oil spill. Plaintiffs each claim to suffer from a host of medical
conditions because of the exposure. They assert claims under the general
maritime law of negligence, negligence per se, and gross negligence with
respect to the spill and its cleanup.
Now before the Court are Defendants’ Motions in Limine to Exclude the
General Causation Opinions Testimony of Plaintiffs’ Expert and their Motions
for Summary Judgment Due to Plaintiffs’ Inability to Prove Medical
Causation. In the Motions in Limine, Defendants argue that Plaintiffs’ expert
on medical causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit’s
requirements for an admissible general causation opinion in toxic tort cases
and should therefore be excluded as unreliable. In the Motions for Summary
Judgment, Defendants argue that assuming their Motions in Limine are
granted, Plaintiffs lack expert testimony on general causation and therefore

Id.
Id. at 2 n.3.
4 Id. at 7–8.
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fail to present a genuine issue of material fact as to whether their injuries were
caused by exposure to oil and dispersants. Plaintiffs oppose.
LEGAL STANDARDS
I.

Daubert Motions
Federal Rule of Evidence 702 provides that a witness who is qualified as

an expert may testify if: (1) the expert’s “specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue”; (2) the
expert’s testimony “is based on sufficient facts or data”; (3) the expert’s
testimony “is the product of reliable principles and methods”; and (4) the
principles and methods employed by the expert have been reliably applied to
the facts of the case. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S.
Supreme Court held that Rule 702 “requires the district court to act as a
gatekeeper to ensure that ‘any and all scientific testimony or evidence
admitted is not only relevant, but reliable.’” 5 All types of expert testimony are
subject to this gatekeeping. 6 The party offering the expert testimony bears the
burden of proving its reliability and relevance by a preponderance of the
evidence. 7
The reliability of expert testimony “is determined by assessing whether
the reasoning or methodology underlying the testimony is scientifically valid.” 8
The Court may consider several nonexclusive factors in determining reliability,
including: (1) whether the technique has been tested, (2) whether the technique
has been subject to peer review and publication, (3) the technique’s potential

Metrejean v. REC Marine Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La.
Sept. 21, 2009) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)).
6 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
7 See Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
8 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007).
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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. 9 Granted, the reliability analysis is a
flexible one and “not every Daubert factor will be applicable in every
situation.” 10 As the gatekeeper of expert testimony, this Court enjoys broad
discretion in determining admissibility. 11
II.

Motions for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 12 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 13
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in her favor. 14 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 15 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 16 “In response to a
properly supported motion for summary judgment, the non-movant must
See Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).
11 See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
12 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
15 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
16 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 17 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 18 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 19
LAW AND ANALYSIS
“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.” 20 “The
plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation.” 21 “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.” 22 On the topic of general causation, Dr. Cook produced a
report dated May 31, 2022 and entitled “Health Effects Among Deepwater
Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect
Analysis.” 23 This report is not unique to this case; another judge of this Court

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
18 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
19 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
20 In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010,
MDL NO. 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1, 2021).
21 Davis v. BP Expl. & Prod., Inc., No. 17-4664, 2022 WL 2789027, at *1 (E.D. La. July 15,
2022).
22 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (internal quotation
marks omitted).
23 See Docs. 85-4, 87-4.
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has described it as “an omnibus, non-case specific general causation expert
report that has been used by many B3 plaintiffs.” 24
Seven sections of the Eastern District of Louisiana, including this one,
excluded an earlier version of Dr. Cook’s report dated March 14, 2022. 25 Dr.
Cook’s May report does not appear to make any changes that disturb the
reasons for excluding the March version. Indeed, at least three sections of this
Court have also excluded the May 31, 2022 report as well. 26 Accordingly, for
the same reasons articulated by Judges Africk, Ashe, Vance, Barbier, Morgan,
and Zainey, the Court grants Defendants’ Motions in Limine. Accordingly,
Plaintiffs cannot prove general causation, and the Court also grants
Defendants’ Motions for Summary Judgment.
CONCLUSION
For the foregoing reasons, Defendants’ Motions in Limine and Motions
for Summary Judgment are GRANTED.
IT IS ORDERED that all of Plaintiffs’ claims are DISMISSED WITH
PREJUDICE.

McIntosh v. BP Expl. & Prod., Inc., No. 13-1020, 2022 WL 2342480, at *1 (E.D. La. June
29, 2022).
25 See, e.g., Johns v. BP Expl. & Prod. Inc., No. 17-3304, 2022 WL 1811088 (E.D. La. June 2,
2022) (Ashe, J.); Coleman v. BP Expl. & Prod., Inc., No. 17-4158, 2022 WL 2314400 (E.D. La.
June 28, 2022) (Vance, J.); McIntosh, 2022 WL 2342480 (Barbier, J.); Harrison v. BP Expl. &
Prod. Inc., No. 17-4346, 2022 WL 2390733 (E.D. La. July 1, 2022) (Morgan, J.); Davis, 2022
WL 2789027 (Zainey, J.); Turner v. BP Expl. & Prod. Inc., No. CV 17-3225, 2022 WL 2967441
(E.D. La. July 27, 2022) (Africk, J.); Reed v. BP Expl. & Prod., Inc., No. CV 17-3603, 2022 WL
3099925 (E.D. La. Aug. 4, 2022) (Milazzo, J.).
26 See, e.g., Cole v. BP Expl. & Prod., No. 17-3649, 2022 WL 2986382, at *4 (E.D. La. July 28,
2022) (Barbier, J.); Burns v. BP Expl. & Prod., No. 17-3117, 2022 WL 2952993, at *1 (E.D.
La. July 25, 2022); Pettaway v. BP Expl. & Prod., No. 17-3599, 2022 WL 3369997 (Aug. 16,
2022) (Vance, J.).
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New Orleans, Louisiana this 28th day of October, 2022.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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