Martin v. BP America, Inc. et al

Filing 72

ORDER AND REASONS: granting 48 Motion in Limine; granting 50 Motion for Summary Judgment; denying 51 Motion for Spoliation of Evidence, as stated herein. Signed by Judge Barry W Ashe on 01/13/2023. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

STERLING MARTIN

CIVIL ACTION

VERSUS

NO. 17-3249

BP EXPLORATION &
PRODUCTION INC., et al.

SECTION M (5)

ORDER & REASONS
Before the Court is a motion by plaintiff Sterling Martin to deem admissible the opinions
of his purported causation experts, Patricia Williams, Ph.D., C. Ann Conn, M.D., and Lee Lemond,
because of the defendants’ alleged spoliation of evidence related to the oil-spill cleanup workers’
exposure to oil and other chemicals.1 Defendants BP Exploration & Production Inc., BP America
Production Company, and BP p.l.c. (collectively, “BP”) respond in opposition.2
Also before the Court are three Daubert motions filed by BP to strike and exclude the
causation opinions of Martin’s purported experts, Susan Andrews, Ph.D.,3 Williams,4 and Conn.5
Martin responds in opposition,6 and BP replies in further support of the motions.7 And, finally,
before the Court is BP’s motion for summary judgment arguing that the case should be dismissed

1

R. Doc. 51.
R. Doc. 54.
3
R. Doc. 47.
4
R. Doc. 48.
5
R. Doc. 49.
6
R. Docs. 55; 56; 57.
7
R. Docs. 67; 68; 69. BP also submits a supplemental memorandum in support of its Daubert motions
directed against Williams and Conn. R. Doc. 61 at 1-6 (positing as to specific causation that “Lemond’s testimony
establishes that Drs. Williams and Conn inaccurately used his report as evidence of the plaintiffs’ exposure to arsenic”
because he made no comparison of arsenic levels in soil before and after the spill, much less from the geographic areas
where Martin worked).
2

because Martin cannot prove general causation without an admissible expert opinion.8 Martin
responds in opposition,9 and BP replies in further support of the motion.10
Having considered the parties’ memoranda, the record, and the applicable law, the Court
issues this Order & Reasons denying Martin’s spoliation motion, granting BP’s motion to exclude
Williams, and consequently granting BP’s motion for summary judgment due to Martin’s inability
to prove general causation.11
I.

BACKGROUND
This case is one of the “B3 cases” arising out of the Deepwater Horizon oil spill that

occurred on April 20, 2010.12 The B3 plaintiffs all make “claims for personal injury and wrongful
death due to exposure to oil and/or other chemicals used during the oil spill response (e.g.
dispersant).”13 These cases were originally part of a multidistrict litigation (“MDL”) pending in
another section of this court before Judge Carl J. Barbier. When Judge Barbier approved the
Deepwater Horizon medical benefits class action settlement agreement, the B3 plaintiffs either
opted out of the settlement or were excluded from the class definition.14 Judge Barbier then
severed the B3 cases from the MDL, and those cases were reallotted among the judges of this
court.15

8

R. Doc. 50.
R. Doc. 58.
10
R. Doc. 71.
11
Because this Court excludes Williams’s general causation opinion, which (as noted in the text to follow)
is the linchpin of Martin’s case, it is unnecessary to address BP’s Daubert motions directed against her other experts,
Andrews and Conn, whose opinions are limited to specific causation. Martin insists, though, that Conn is also being
offered as a general causation expert, but the Court agrees with BP’s assessment that Conn’s report and deposition
testimony indicate otherwise and that, in any event, she fails to offer any opinion concerning “the dose of arsenic
known to cause toxic encephalopathy.” R. Doc. 69 at 3.
12
R. Doc. 9 at 1-2, 50.
13
Id. at 50.
14
Id. at 51 n.3.
15
Id. at 1-58.
9

2

Martin alleges that he was exposed to weathered oil and dispersants when he performed
oil-spill cleanup work for 79 days in the summer of 2010, near Horn Island, Mississippi, as the
captain of a vessel.16 He originally sued for a whole host of medical conditions, but his claim for
chronic toxic encephalopathy (“CTE”) is the only one currently being pursued.17 Martin opted out
of the medical benefits class action settlement agreement.18 In this action, he asserts claims for
negligence with respect to the oil spill and cleanup.19
In the case management order for the B3 bundle of cases, Judge Barbier noted that, to
prevail, “B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure
to oil or other chemicals used during the response.”20 He further observed that causation “will
likely be the make-or-break issue for many B3 cases,” and “the issue of causation in these toxic
tort cases will require an individualized inquiry.”21
Martin offers the opinions of three purported experts in his attempt to prove causation:
neuropsychologist Andrews, toxicologist Williams, and neurologist Conn. BP seeks to exclude
all these experts, and consequently, the dismissal of Martin’s case for failure to prove causation.
Martin opposes BP’s motions on the merits but also argues that his causation experts’ opinions
should be admitted due to BP’s spoliation of evidence.

16

R. Docs. 2 at 2-4; 47-7 at 1-15.
R. Docs. 48-6; 50-1 at 3.
18
R. Doc. 2-2.
19
R. Doc. 2 at 3-6.
20
R. Doc. 9 at 53.
21
Id. at 53-54.
17

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II.

LAW & ANALYSIS
A. Martin’s Spoliation Motion (R. Doc. 51)
Martin’s spoliation motion is substantially the same as those filed by the plaintiffs and

denied by this Court in other B3 cases. See, e.g., Fairley v. BP Expl. & Prod. Inc., 2022 WL
16731817 (E.D. La. Nov. 3, 2022); Moore v. BP Expl. & Prod. Inc., 2022 WL 16694238 (E.D.
La. Nov. 3, 2022). As did the plaintiff in Fairley, Martin argues that this Court should deem
admissible the opinions of his purported general causation expert because BP spoliated evidence
by failing to undertake a monitoring program to develop evidence of the cleanup workers’ actual
toxic exposures to the specific chemicals that were in the weathered oil.22 In Fairley, this Court
found that the plaintiff did not meet his burden to prove spoliation because there was no allegation
that BP destroyed, altered, or failed to preserve any existing evidence, there was no proof that BP
had a duty to conduct a monitoring program to create evidence in order to preserve it, there was
no evidence that BP acted in bad faith, and finally, the proposed remedy of deeming the purported
general causation expert’s opinions relevant would not cure the deficiencies in his expert report.23
Fairley, 2022 WL 16731817, at *3-4.
As have other B3 plaintiffs,24 Martin attempts to avoid this same outcome by attaching to
his motion an affidavit executed by Dr. Linda Birnbaum, former director of the National Institute
of Environmental Health and Safety, in which she states that a monitoring program would have
improved worker safety, would have helped to protect workers from long- and short-term health
effects, and would have been the only way to obtain quantitative data on spill workers’ exposures
that could now be used to establish a person’s exposure to a “given chemical at a given level.”25

22

R. Doc. 51-1 at 1-24.
In Fairley, the purported general causation expert was Dr. Jerald Cook.
24
See, e.g., Jenkins v. BP Expl. & Prod. Inc., 2023 WL 172044, at *1 (E.D. La. Jan. 12, 2023).
25
R. Doc. 51-26 at 1-5.
23

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Dr. Birnbaum also attests that the Gulf Study is the best available evidence of the workers’
exposures, and that it is not “plausible” to establish an oil-spill responder’s quantitative exposure
to a particular chemical at a given level based on the data that was collected during the spill
response when considering the thousands of chemicals and other variables at play.26
The addition of Dr. Birnbaum’s affidavit does not save Martin’s spoliation motion.27 Dr.
Birnbaum’s affidavit does not establish that BP destroyed, altered, or failed to preserve any
existing evidence, nor that BP had a duty to conduct a monitoring program to create evidence in
order to preserve it. Moreover, Dr. Birnbaum’s affidavit does not provide evidence that BP acted
in bad faith. Once again, a B3 plaintiff (this time Martin) is left to argue that BP’s failure to
undertake a monitoring program to develop and preserve evidence, which might potentially have
aided future B3 plaintiffs in making claims against BP, amounted to spoliation because such
evidence really came into being when the future B3 plaintiffs were exposed to the weathered oil.28
In no way can Dr. Birnbaum’s affidavit be read to support this absurd and repeatedly rejected
argument; instead, the affidavit candidly states that contemporaneous monitoring was the only way
to collect quantitative data for a general causation opinion and it was not done. The affidavit points
to no source (statute, rule, or other dictate) imposing a duty on BP to conduct such monitoring and,
by suggesting that monitoring was necessary to create evidence of exposure, it concedes that no
such evidence ever existed for BP to preserve. Courts have held that “the duty to preserve evidence
does not include the duty to create evidence. Since the duty to preserve evidence implies a duty
not to alter or destroy existing evidence, ‘spoliation does not encompass a defendant’s failure to

26

Id. at 5-7.
BP correctly argues that Dr. Birnbaum’s affidavit should not be considered because it purports to offer
expert opinions and Dr. Birnbaum was not properly or timely disclosed as an expert. This constitutes a separate and
additional reason the affidavit should not make any difference with respect to the spoliation motion.
28
R. Doc. 51-1 at 20-21.
27

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photograph an accident site .... Thus, the absence of after-the-fact photographs ... cannot support
a spoliation claim.’” De Los Santos v. Kroger Tex., LP, 2015 WL 3504878, at *6 n.4 (N.D. Tex.
June 3, 2015) (quoting Bertrand v. Fischer, 2011 WL 6254091, at *4 (W.D. La. Dec. 14, 2011))
(emphasis in original; internal citation and alteration omitted). Said differently, “[a] failure to
collect evidence that may or may not have been available for collection is very different from the
intentional destruction of evidence that constitutes spoliation.” United States v. Greco, 734 F.3d
441, 447 (6th Cir. 2013) (emphasis added). Thus, like the plaintiff in Fairley, Martin has not met
his burden on spoliation.
Accordingly, for the reasons stated in the Order & Reasons issued in Fairley, which are
not altered by Dr. Birnbaum’s affidavit, Martin’s spoliation motion must be denied.
B. BP’s Daubert Motion to Exclude Patricia Williams, Ph.D. (R. Doc. 48)
Martin offers Williams, a board-certified toxicologist with a doctorate in anatomy, as a
general and specific causation expert.29 Williams offers a general causation opinion that there is
a cause-and-effect relationship between arsenic exposure and CTE, and a specific causation
opinion that Martin’s CTE was caused by arsenic exposure sustained while performing oil-spill
cleanup work.30
A district court has discretion to admit or exclude expert testimony. Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 589 (1993), the Supreme Court held that Rule 702 of the Federal Rules of Evidence requires
a district court to act as a gatekeeper to ensure that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Rule 702 provides:

29

R. Doc. 48-3 at 1-7. BP does not contest Williams’s qualifications, so the Court will not discuss them in

30

Id. at 171-73.

detail.

6

A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
The reliability inquiry requires a court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the
Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability:
(1) whether the theory has been tested; (2) whether the theory has been subjected to peer review
and publication; (3) the known or potential rate of error; and (4) the general acceptance of the
methodology in the scientific community. Id. at 593-95. However, a court’s evaluation of the
reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999) (quotations omitted). In sum, the district court must ensure “that an expert, whether basing
testimony upon professional studies or personal experiences, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. at
152. The party offering the testimony must establish its reliability by a preponderance of the
evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Next, the district court must determine whether the expert’s reasoning or methodology
“fits” the facts of the case and whether it will assist the trier of fact to understand the evidence,
i.e., whether it is relevant. Daubert, 509 U.S. at 591. An expert’s testimony is not relevant and
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may be excluded if it is directed to an issue that is “well within the common sense understanding
of jurors and requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 155 (5th Cir.
2003). Further, an expert cannot make “legal conclusions reserved for the court,” credit or
discredit witness testimony, or “otherwise make factual determinations reserved for the trier of
fact.” Highland Cap. Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).
BP argues that Williams’s opinions should be excluded because she does not identify the
dose of arsenic known to cause any form of CTE or Martin’s dose of exposure to arsenic.31 BP
contends that Williams’s opinion that Martin was exposed “‘to sufficient concentrations of arsenic
known to cause [CTE]’” is an unsupported, non-specific conclusion that is unreliable under
applicable precedent.32 BP points out that Williams’s work here employs the same analytical
methodology that she used for her expert reports that were excluded by other courts in other
Deepwater Horizon cases.33 BP contends that Williams failed to: identify relevant statistical
associations in the epidemiological literature; evaluate the limitations and biases of the
epidemiological studies; and provide a reasoned analysis of the Bradford Hill factors to determine
whether an association reflects a true cause-and-effect relationship.34 Finally, BP argues that
Williams’s specific causation opinion should be excluded because she does not have any
information on the dose of arsenic to which Martin was allegedly exposed, failed to evaluate the
information she did have, is unqualified to provide some of the required opinions because she is
not a medical doctor, and failed to consider alternative causes of Martin’s alleged ailment.35

31

R. Docs. 48-1 at 4; 68 at 2-6.
R. Doc. 48-1 at 4 (quoting R. Doc. 48-3 at 173).
33
Id. at 5-6.
34
Id. at 12-17.
35
Id. at 17-24.
32

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In opposition, Martin, citing his spoliation motion, argues that it is impossible for any
expert to identify a specific dose of a specific chemical at a specific level because BP failed to
conduct dermal monitoring and biomonitoring of oil-spill workers to create such evidence.36
Martin also argues that Williams applied the methodology of the Reference Manual on Scientific
Evidence appropriate for toxicology and the Bradford Hill standards to form a “biological
plausibility causation opinion” that arsenic exposure can cause CTE.37 According to Martin,
Williams adequately identified the chemical at issue (arsenic), relied on testing of arsenic levels
on the Gulf Coast from Texas to Florida done by environmental expert Lemond, and consulted
scientific and medical literature establishing a link between arsenic exposure and CTE.38 Further,
Martin argues that toxicologists are qualified to render specific causation opinions and that
Williams used a proper methodology to provide one in this case.39 Finally, Martin argues that
Williams did consider other causes of CTE because she reviewed Martin’s medical history.40
Pretermitting whether Williams employed a proper methodological analysis or was
qualified to render a specific causation opinion, Williams’s general causation opinion must be
excluded for the same reason that this Court has excluded other general causation opinions in B3
cases – namely, Williams fails to identify the dose of exposure (i.e., the exposure to a certain level
of a certain substance for a certain period of time) to arsenic necessary to cause the development
of CTE in the general population. Without information concerning this theoretical cause-effect
possibility in the general population, there is no way to determine if the specific dose of exposure

36

R. Doc. 57 at 5-6 (citing R. Doc. 51).
Id. at 9-16.
38
Id. at 8, 18-19.
39
Id. at 16-18.
40
Id. at 23-24.
37

9

experienced by any plaintiff (including Martin) was sufficient to cause harm. As explained in
other B3 cases:
a [general] causation expert must identify “the harmful level of [] exposure to a
chemical.” Allen [v. Pa. Eng’g Corp.], 102 F.3d [194,] 198-199 [(5th Cir. 1996)].
The Fifth Circuit states that 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.”).
Novelozo v. BP Expl. & Prod. Inc, 2022 WL 1460103, at *8 (E.D. La. May 9, 2022); Murphy v.
BP Expl. & Prod. Inc., 2022 WL 1460093, at *8 (E.D. La. May 9, 2022).
Because identification of the harmful level of exposure to a chemical is one of the “minimal
facts necessary to sustain the plaintiff’s burden in a toxic tort case,” Allen, 102 F.3d at 199, and
Williams has not provided this information with respect to the general population, her report is
unreliable and her general causation opinions inadmissible. This is not the first court to so hold.
See In re Deepwater Horizon BELO Cases, 2020 WL 6689212, at *11-16 (N.D. Fla. Nov. 4, 2020)
(concluding that Williams’s opinions that “a cause-effect relationship exists between arsenic and
chronic dermatitis” constitute “classic ipse dixit” and fall “woefully short of the Daubert and Rule
702 standards based on her failure to identify relevant statistically significant associations in the
epidemiologic literature and her failure to provide anything more than a conclusory analysis of the
Bradford Hill factors to explain her opinions”), aff’d, 2022 WL 104243, at *2-3 (11th Cir. Jan. 11,
2022); Osmer v. BP Expl. & Prod. Inc., 2021 WL 4206950 (E.D. La. Sept. 16, 2021) (excluding
Williams’s causation opinions on multiple grounds). Williams’s “biological plausibility causation
opinion” simply does not suffice under the analytical framework the Court is to apply. See, e.g.,
In re Deepwater Horizon BELO Cases, 2022 WL 17734414, at *10 (N.D. Fla. Dec. 15, 2022)
(observing that “biological possibility is not proof of causation” but amounts to an over-reliance
10

on a single Bradford Hill factor) (quoting In re Accutane Prods. Liab., 511 F. Supp. 2d 1288, 1296
(M.D. Fla. 2007)).
Accordingly, BP’s motion in limine to exclude Williams’s testimony must be granted.
C. BP’s Motion for Summary Judgment (R. Doc. 50)
BP argues that it is entitled to summary judgment because Martin lacks general causation
expert testimony. As explained above, this Court has excluded Williams as a general causation
expert. Without a general causation expert, Martin’s claims arising from chemical exposure must
be dismissed with prejudice. See, e.g., Brister v. BP Expl. & Prod. Inc., 2022 WL 3586760 (E.D.
La. Aug 22, 2022); Burns v. BP Expl. & Prod. Inc., 2022 WL 2952993 (E.D. La. July 25, 2022);
Carpenter v. BP Expl. & Prod. Inc., 2022 WL 2757416 (E.D. La. July 14, 2022); Johns v. BP Expl.
& Prod. Inc., 2022 WL 1811088 (E.D. La. June 2, 2022). Like the plaintiff in Jenkins v. BP
Exploration & Production Inc., Martin attempts to save his case with Dr. Birnbaum’s affidavit,
but for the same reasons given in that case, the affidavit neither cures nor explains the deficiencies
in the report of Martin’s purported general causation expert. See Jenkins, 2023 WL 172044, at *23.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Martin’s spoliation motion (R. Doc. 51) is DENIED.
IT IS FURTHER ORDERED that BP’s motion to strike and exclude the general causation

opinion of Williams (R. Doc. 48) is GRANTED.
IT IS FURTHER ORDERED that BP’s motion for summary judgment (R. Doc. 50) is
GRANTED, and Martin’s claims are DISMISSED WITH PREJUDICE.

11

New Orleans, Louisiana, this 13th day of January, 2023.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

12