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

Filing 72

ORDERED that the 56 Motions in Limine/Motions to Exclude filed in each of the captioned cases are GRANTED. FURTHER ORDERED that the 57 Motions for Summary Judgment filed in each of the captioned cases are GRANTED and that all of the claims of th e plaintiffs against all of the defendants in the captioned cases are dismissed with prejudice, as set forth herein. FURTHER ORDERED that the 58 Motions for Spoliation of Evidence Relief filed in each of the captioned cases are DENIED. Signed by Judge Jay C. Zainey on 2/14/2023. (jls)

Case 2:17-cv-03075-JCZ-DPC Document 72 Filed 02/15/23 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BUTLER

CIVIL ACTION

VERSUS

NO. 17-3075

BP EXPLORATION & PRODUCTION, INC., ET AL.

SECTION “A”

HARRIS

CIVIL ACTION

VERSUS

NO. 17-3268

BP EXPLORATION & PRODUCTION, INC., ET AL.

SECTION “A”

REEB

CIVIL ACTION

VERSUS

NO. 17-3602

BP EXPLORATION & PRODUCTION, INC., ET AL.

SECTION “A”

WENSEL

CIVIL ACTION

VERSUS

NO. 17-4629

BP EXPLORATION & PRODUCTION, INC., ET AL.

SECTION “A”

ORDER
The captioned cases are B3 lawsuits that were allotted to this section from Judge
Barbier’s MDL 2179 pertaining to the Deepwater Horizon disaster that occurred in the Gulf of
Mexico in 2010. The B3 pleading bundle includes personal injury claims due to oil or chemical
exposure during the disaster response. See In re Oil Spill by Oil Rig “Deepwater Horizon” in
Gulf of Mexico, on April 20, 2010, No. MDL 2179, 2021 WL 6055613, at *1 (E.D. La. Apr. 1,
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2021). B3 plaintiffs either opted out of the Medical Settlement or were not members of the
settlement class. Id. at *2 (discussing the Medical Benefits Class Action Settlement
Agreement in MDL 2179).
The plaintiff in each captioned B3 lawsuit was employed in the Deepwater Horizon oil
spill response effort and claims that exposure to crude oil and chemical dispersants (the
former being released by the oil spill itself and the latter being used in the cleanup process)
caused various personal injuries, some temporary and some long-term.
From the inception of the severed B3 cases, it has been understood that to prevail “B3
plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or
other chemicals used during the response.” In re Oil Spill by Oil Rig “Deepwater Horizon,”
2021 WL 6055613, at *11. Because causation had proved to be the critical element in the
BELO cases, it was predicted to be the “make-or-break” issue for many B3 cases as well. Id.
(comparing and contrasting BELO cases and B3 cases). A B3 plaintiff must prove that the
legal cause of the claimed injury or illness is exposure to oil or other chemicals used during
the oil spill response. Id. The issue of causation will require an individualized inquiry. Id.
The plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation. See Knight v. Kirby Inland Marine, Inc., 482
F.3d 347, 351 (5th Cir. 2007). General causation is whether a substance is capable of causing
a particular injury or condition in the general population. Id. at 351. Specific causation is
whether a substance caused a particular individual’s injury, i.e., the plaintiff’s injury. Id. (citing
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)). If the plaintiff’s case
fails at the first-step of producing admissible evidence as to general causation, then the issue
of specific causation is rendered moot. See id. (citing Miller v. Pfizer, Inc., 356 F.3d 1326,
1329 (10th Cir. 2004)).
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In each of the hundreds of B3 cases that were reassigned from MDL 2179 to the
judges of this district, the plaintiff attempted to prove both general and specific causation by
relying on expert medical doctor, Jerald Cook, M.D. Dr. Cook’s expert report, of which there
have been several versions, has been described by another judge as “an omnibus, non-case
specific general causation expert report that has been used by many B3 plaintiffs.” Backstrom
v. BP Expl. & Prod., Inc., No. 17-3029, 2022 WL 2342390, at *1 (E.D. La. June 29, 2022)
(Barbier, J.). Unfortunately, no version of Dr. Cook’s report has been accepted in this district.
The motions in limine in the captioned cases pertain to the plaintiffs’ use of Dr. Cook’s
report, and the testimony that would derive from it at trial, as evidence of both general and
specific causation. Movants seek to exclude Dr. Cook’s opinions on various grounds including
the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Again, Dr. Cook’s report has been rejected repeatedly under Daubert by the judges
of this district. If Dr. Cook’s opinions are excluded from trial, then Defendants argue that their
motion for summary judgment must be granted because the plaintiff in each case will have
no expert medical causation evidence, which would constitute a complete failure of proof on
an essential element of the case.
This Court has carefully studied and considered the numerous decisions issued by the
other judges of this district who have determined that Dr. Cook’s opinions should be excluded.
For the same reasons given by Judges Vance, Barbier, Morgan, Milazzo, and Ashe when
they granted the defendants’ motions in limine directed at the same or even “improved”
versions of Dr. Cook’s report, this Court has granted the defendants’ motions in limine in its
own B3 cases on countless occasions. For the same reasons, the Court grants the

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defendants’ motions in limine in the captioned cases.1 Consequently, the defendants’ motions
for summary judgment are likewise GRANTED.
Finally, the plaintiff in each of the captioned cases has filed a motion requesting that
Dr. Cook's report be accepted as a sanction against the defendants due to issues of
spoliation. Like the other judges in this district, the Court has previously denied similar
spoliation motions. As such, the plaintiffs’ spoliation motions are DENIED.
Accordingly;
IT IS ORDERED that the Motions in Limine/Motions to Exclude filed in each of the
captioned cases are GRANTED.
IT IS FURTHER ORDERED that the Motions for Summary Judgment filed in each of
the captioned cases are GRANTED and that all of the claims of the plaintiffs against all of the
defendants in the captioned cases are dismissed with prejudice.
IT IS FURTHER ORDERED that the Motions for Spoliation of Evidence Relief filed in
each of the captioned cases are DENIED.
February 14, 2023
_____________________________
Jay C. Zainey
United States District Judge

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The Court notes that like B3 plaintiffs before other judges in this district, the plaintiffs in the
captioned cases have attempted to bolster their causation arguments by attaching to their
oppositions an affidavit executed by Dr. Linda Birnbaum and a supplemental report written by Dr.
Rachel Jones. For the same reasons that other judges were unmoved by these additions, this
Court is likewise unpersuaded.
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