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

Filing 63

ORDER AND REASONS: The Court GRANTS the BP parties' 48 motion to exclude the testimony of Dr. Cook. The Court DENIES plaintiff's 51 motion to admit Dr. Cook's report as a sanction for defendants' alleged spoliation. The Court also GRANTS the BP parties' 49 motion for summary judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 3/1/2023. (pp)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLIE DAVID HODGE
VERSUS

CIVIL ACTION
NO. 17-3282

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (2)

ORDER AND REASONS
Before the Court is BP Exploration & Production, Inc., BP America
Production Company, and BP p.l.c.’s (collectively, the “BP parties”) motion
to exclude the testimony of plaintiff’s general causation expert, Dr. Jerald
Cook,1 and their motion for summary judgment. 2 Plaintiff opposes both
motions.3 The Court also considers plaintiff’s motion to admit the expert
report of Dr. Cook as a sanction for defendants’ alleged spoliation, 4 which
defendants oppose.5

1

2
3
4
5

R. Doc. 48. The remaining defendants, Halliburton Energy Services,
Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc. join the BP parties’
motion to exclude the testimony of Dr. Cook. R. Doc. 48 at 1 n.1.
R. Doc. 49. The remaining defendants also join the BP parties’ motion
for summary judgment. R. Doc. 49 at 1 n.1.
R. Docs. 53 & 60.
R. Doc. 51.
R. Doc. 61.
1

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For the following reasons, the Court grants defendants’ motion to
exclude the testimony of Dr. Cook. The Court denies plaintiff’s motion to
admit Dr. Cook’s report as a sanction for defendants’ alleged spoliation.
Without Dr. Cook’s expert report, plaintiff cannot establish the general
causation element of his claim at trial. Accordingly, the Court also grants
defendants’ motion for summary judgment.

I.

BACKGROUND
This case arises from plaintiff’s alleged exposure to toxic chemicals

following the Deepwater Horizon oil spill in the Gulf of Mexico. Plaintiff
alleges that he was exposed to crude oil and dispersants from his work as an
offshore cleanup worker.6

Plaintiff represents that this exposure has

resulted in the following health problems, among others: abdominal cramps,
weight loss, and kidney stones; nosebleeds, sinus pain, chronic rhinitis, and
sore throat; eye burning and blurred vision; headaches and fainting; skin
boils, redless, dryness, and welts; wheezing, chest pain, bronchospasm, and
chronic bronchitis; and diabetes.7

6
7

R. Doc. 48-2 at 3.
R. Doc. 48-3 at 1-2.
2

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Plaintiff’s case was originally part of the multidistrict litigation
(“MDL”) pending before Judge Carl J. Barbier. His case was severed from
the MDL as one of the “B3” cases for plaintiffs who either opted out of, or
were excluded from, the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement.8

Plaintiff opted out of the settlement.9

After

plaintiff’s case was severed, it was reallocated to this Court. Plaintiff asserts
claims for general maritime negligence, negligence per se, and gross
negligence against the defendants as a result of the oil spill and its cleanup.10
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms plaintiff alleges in his complaint, he
offers the testimony of Dr. Jerald Cook, an occupational and environmental
physician.11 Dr. Cook is plaintiff’s sole expert offering an opinion on general
causation. In his June 21, 2022 report, Dr. Cook utilizes a “general causation
approach to determine if some of the frequently reported health complaints
are indeed from the result of exposures sustained in performing [oil spill]
cleanup work.”12

8

9
10
11
12

In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mex., on
Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12 (E.D.
La. Apr. 1, 2021).
R. Doc. 1-1 at 6.
R. Doc. 31 ¶¶ 19-49.
R. Doc. 48-4 (Cook Report).
Id. at 16.
3

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The BP parties contend that Dr. Cook’s expert report should be
excluded on the grounds that that it is unreliable and unhelpful. 13
Defendants also move for summary judgment, asserting that if Dr. Cook’s
general causation opinion is excluded, plaintiff is unable to carry his burden
on causation.14 Plaintiff opposes both motions.15 Plaintiff contends that
defendants’ failure to record quantitative exposure data during the oil spill
response amounts to spoliation, and seeks the admission of Dr. Cook’s report
as a sanction.16 Defendants oppose plaintiff’s motion. 17
The Court considers the parties’ arguments below.

II.

DEFENDANTS’ MOTION TO EXCLUDE DR. COOK’S
TESTIMONY
A.

Legal Standard

The district court has considerable discretion to admit or exclude
expert testimony under Federal Rule of Evidence 702. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200
F.3d 358, 371 (5th Cir. 2000). Rule 702 provides that an expert witness

13
14
15
16
17

R. Doc. 48.
R. Doc. 49-1 at 1-2.
R. Docs. 53 & 52.
R. Doc. 51.
R. Doc. 61.
4

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“qualified . . . by knowledge, skill, experience, training, or education may
testify” if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or 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.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the 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.’” Metrejean v. REC Marine
Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La. Sept. 21,
2009) (quoting Daubert, 509 U.S. at 589). This gatekeeping function applies
to all forms of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999).
The Court’s gatekeeping function consists of a two-part inquiry into
reliability and relevance. First, the Court must determine whether the
proffered expert testimony is reliable. The party offering the testimony bears
the burden of establishing its reliability by a preponderance of the evidence.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The
5

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reliability inquiry requires the Court to assess whether the expert’s reasoning
and methodology underlying the testimony are valid. See Daubert, 509 U.S.
at 593.

“[F]undamentally unsupported” opinions “offer[] no expert

assistance to the [trier of fact]” and should be excluded. Guile v. United
States, 422 F.3d 221, 227 (5th Cir. 2005). 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 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 v. Tex. Dep’t of Crim. Just., 393 F.3d 577,
584 (5th Cir. 2004). The Supreme Court has emphasized that these factors
“do not constitute a ‘definitive checklist or test.’” Kumho, 526 U.S. at 150
(quoting Daubert, 509 U.S. at 593). Rather, courts “have considerable
leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable.” Id. at 152.
“The reliability analysis applies to all aspects of an expert’s testimony:
the methodology, the facts underlying the expert’s opinion, the link between
the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc.,
482 F.3d 347, 355 (5th Cir. 2007) (internal quotation marks omitted).
6

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“Where the expert’s opinion is based on insufficient information, the analysis
is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). Further, the Supreme Court has explained that “nothing 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.” Joiner, 522 U.S. at 146. Rather, “[a] court may conclude
that there is simply too great an analytical gap between the data and the
opinion proffered.” Id.
Second, the Court must determine whether the expert’s reasoning or
methodology “fits” the facts of the case, and whether it will thereby assist the
trier of fact to understand the evidence. In other words, it must determine
whether it is relevant. See Daubert, 509 U.S. at 591. “Expert testimony
which does not relate to any issue in the case is not relevant and, ergo, nonhelpful.” Id. (quoting 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶
702[02] (1988)).
A district court’s gatekeeper function does not replace the traditional
adversary system or the role of the jury within this system. See id. at 596. As
noted in Daubert, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” Id.
7

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Thus, in determining the admissibility of expert testimony, the district court
must accord the proper deference to “the jury’s role as the proper arbiter of
disputes between conflicting opinions.” United States v. 14.38 Acres of
Land, More or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th
Cir. 1996).

B.

Discussion

Plaintiff has the burden of “prov[ing] that the legal cause of [his]
claimed injury or illness is exposure to oil or other chemicals used during the
response.” In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex.,
on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1,
2021) (noting that B3 plaintiffs must prove that their alleged personal
injuries were “due to exposure to oil or other chemicals used during the oil
spill response”). The Fifth Circuit has developed a “two-step process in
examining the admissibility of causation evidence in toxic tort cases.”
Knight, 482 F.3d at 351. First, plaintiff must show general causation, which
means that he must show that “a substance is capable of causing a particular
injury or condition in the general population.” Id. Second, if the Court
concludes that plaintiff has produced admissible evidence on general
causation, it must then determine whether plaintiff has shown specific
8

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causation, in other words, that “a substance caused [that] particular
[plaintiff’s] injury.” Id. If the Court finds that there is no admissible general
causation evidence, there is “no need to consider” specific causation. Id.
(citing Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th Cir. 2004)).
At issue here is whether plaintiff has produced admissible general
causation evidence. To prove that exposure to the chemicals in oil and
dispersants can cause the medical conditions plaintiff alleges, he offers the
testimony of an environmental toxicologist, Dr. Cook. Dr. Cook asserts that
his report is “based on the scientific methods used in the field of
environmental toxicology.” 18 More specifically, he states that his “causation
analysis regarding health effects of oil spill exposures [] draw[s] on the
process of evaluating epidemiology studies and the work from established
expert groups similar to the Surgeon General’s Advisory Committee to make
a more likely than not conclusion.” 19
The Fifth Circuit has held that epidemiology provides the best evidence
of causation in a toxic tort case. See Brock v. Merrell Dow Pharms., Inc.,
874 F.2d 307, 311 (5th Cir. 1989). That is not to say that epidemiologic

18
19

R. Doc. 48-4 at 7 (Cook Report).
Id. at 19.
9

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evidence “is a necessary element in all toxic tort cases,” but “it is certainly a
very important element.” Id. at 313. As explained by the Fifth Circuit:
Epidemiology attempts to define a relationship between a
disease and a factor suspected of causing it . . . . To define that
relationship, the epidemiologist examines the general
population, comparing the incidence of the disease among those
people exposed to the factor in question to those not exposed.
The epidemiologist then uses statistical methods and reasoning
to allow her to draw a biological inference between the factor
being studied and the disease’s etiology.
Id. at 311.
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. An association occurs when “two events (e.g., exposure to a
chemical agent and development of disease) . . . occur more frequently
together than one would expect by chance.” Fed. Judicial Ctr., Reference
Manual on Scientific Evidence, 552 n.7 (3d ed. 2011) [hereinafter Reference
Manual]. An association, by itself, is not equivalent to a finding of causation.
Id. at 552.

Unlike an association, “[c]ausation is used to describe the

association between two events when one event is a necessary link in a chain
of events that results in the effect.” Id. at 552 n.7. The Reference Manual
indicates that “[a]ssessing whether an association is causal requires an
understanding of the strengths and weaknesses of a study’s design and
implementation, as well as a judgment about how the study’s findings fit with
10

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other scientific knowledge.” Id. at 553. Because “all studies have ‘flaws’ in
the sense of limitations that add uncertainty about the proper interpretation
of results,” the key questions in evaluating epidemiologic evidence “are the
extent to which a study’s limitations compromise its findings and permit
inferences about causation.” Id.
Once an association is found, “researchers consider whether the
association reflects a true cause-effect relationship,” that is, whether “an
increase in the incidence of disease among the exposed subjects would not
have occurred had they not been exposed to the agent.” Id. at 597-98.
Alternative explanations, “such as bias or confounding factors,” should first
be considered. Id. at 598. If alternative explanations are not present,
researchers apply the Bradford Hill criteria to evaluate whether an agent can
be a cause of a disease. Id. at 597; Wagoner v. Exxon Mobil Corp., 813 F.
Supp. 2d 771, 803 (E.D. La. 2011) (“[T]he set of criteria known as the
Bradford Hill criteria has been widely acknowledged as providing an
appropriate framework for assessing whether a causal relationship underlies
a statistically significant association between an agent and a disease.”). The
Bradford Hill factors include: (1) temporal relationship; (2) strength of the
association; (3) dose-response relationship; (4) replication of findings; (5)
biological plausibility; (6) consideration of alternative explanations; (7)
11

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cessation of exposure; (8) specificity of the association; and (9) consistency
with other knowledge. Reference Manual at 600. These factors are not
rigidly applied in a general causation analysis, but instead provide guidance
for an expert “[d]rawing causal inferences after finding an association.” Id.
Under Daubert, “courts must carefully analyze the studies on which
experts rely for their opinions before admitting their testimony.” Knight,
482 F.3d at 355; Wagoner, 813 F. Supp. 2d at 799 (“Whether epidemiological
studies support an expert’s opinion on the question of general causation in a
toxic tort case is critical to determining the reliability of the opinion.”).
Courts “may exclude expert testimony based on epidemiological studies
where the studies are insufficient, whether considered individually or
collectively, to support the expert’s causation opinion.” Baker v. Chevron
USA, Inc., 680 F. Supp. 2d 865, 875 (S.D. Ohio 2010) (citing Joiner, 522 U.S.
at 156-57). But a court cannot exclude expert testimony just because it
disagrees with the expert’s conclusions, although the Supreme Court has
recognized that “conclusions and methodology are not entirely distinct from
one another.” Joiner, 522 U.S. at 146.
With the above standards in mind, the Court examines Dr. Cook’s
general causation report. As noted by another section of this Court, “Cook
issued an omnibus, non-case specific general causation expert report that
12

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has been used by many B3 plaintiffs.” Street v. BP Expl. & Prod. Inc., No.
17-3619, 2022 WL 1811144, at *2 (E.D. La. June 2, 2022). Dr. Cook’s report
is divided into five chapters.

The first chapter outlines Dr. Cook’s

qualifications, which are not challenged in this case. 20 The second chapter
provides an overview of the Deepwater Horizon oil spill. 21 The third chapter
describes Dr. Cook’s methodology, the first step of which involved his
“review and analy[sis]” of the “available scientific literature to determine the
strength of an association between environmental exposure and a health
effect.” 22 After reviewing the literature, Dr. Cook asserts that he selected the
epidemiological studies cited in his causation analysis “based on the quality
of the study and study design.”23
Chapter four of Dr. Cook’s report details prior studies on the health
effects associated with oil spills.24 This section first provides “summaries of
studies that evaluate health effects that may be associated with exposures
from oil spill response and cleanup work” in past oil spills. 25 It then discusses
the findings and shortcomings of three studies on the Deepwater Horizon

20
21
22
23
24
25

Id. at 8.
Id. at 9-15.
Id. at 20.
Id. at 22.
Id. at 61-101.
Id. at 62.
13

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oil spill: (1) the National Institute for Occupational Safety and Health’s
(“NIOSH”) Health Hazard Evaluations, (2) the Deepwater Horizon oil spill
Coast Guard cohort study, and (3) the Gulf Long-Term Follow-Up study
(“GuLF STUDY”).26 Chapter five presents Dr. Cook’s conclusions on general
causation for four categories of health conditions: (1) respiratory conditions,
(2) dermal conditions, (3) ocular conditions, and (4) cancers.27 Specifically,
he reaches the following conclusions:
• Oil response and cleanup workers have reported acute
symptoms of coughing; shortness of breath; wheezing;
tightness in chest; and burning in nose, throat, and lungs.
. . . Some individuals have prolonged effects from these
exposures, and can develop chronic respiratory conditions
. . . . These conditions include chronic rhinitis, chronic
sinusitis, allergic rhinitis, chronic obstructive pulmonary
disease (COPD), bronchitis, asthma or reactive airway
disease . . . . General causation analysis indicates that
these acute and chronic respiratory conditions can occur
in individuals exposed to crude oil, including weathered
crude oil, during oil spill response and cleanup work.28
• Chemical irritation would be the most common problem
with workers, particularly for acute symptoms that occur
during or shortly after exposure. These can be described as
skin irritation, skin rash, or skin itching. Dermatitis may
also occur following exposure to chemicals, such as crude
oil, weathered crude oil, or dispersants. General causation
analysis indicates that these acute and chronic [dermal]
conditions can occur in individuals exposed to crude oil,

26
27
28

Id. at 65-101.
Id. at 102.
Id. at 119-20 (emphasis added).
14

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including weathered crude oil, during oil spill response
and cleanup work.29
• Chemical irritation would be the most common problem
with workers, particularly for acute symptoms . . . . These
can be described as acute eye burning, acute eye irritation,
and acute conjunctivitis. Chronic conditions following
exposure can occur in a smaller subset of individuals who
experience chronic inflammation affecting their eyes. The
evidence available at this time does indicate that exposure
to crude oil, including weathered crude oil, can result in
acute and chronic eye symptoms. The medical problems
most likely from these exposures are acute conjunctivitis,
chronic conjunctivitis, and dry eye disease. General
causation analysis indicates that these acute and chronic
ocular conditions can occur in individuals exposed to
crude oil, including weathered crude oil, during oil spill
response and cleanup work.30
Based on Dr. Cook’s report, defendants argue that plaintiff is unable to
prove general causation with relevant and reliable expert testimony. They
contend that Dr. Cook’s general causation report is unreliable because he
fails to: (1) identify the harmful dose of exposure of any particular chemical
to which plaintiff was exposed that is necessary to cause the plaintiff’s
conditions; (2) identify which chemicals can cause which conditions; (3)
verify plaintiff’s diagnoses; and (4) follow the accepted methodology for
analyzing epidemiology. 31 Defendants also note that this Court and others
in this district have excluded various versions of Dr. Cook’s report for similar
29
30
31

Id. at 125-26 (emphasis added).
Id. at 132-33 (emphasis added).
R. Doc. 48-1 at 14-19.
15

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reasons,32 including the version at issue in this case.33 It is undisputed that
the only substantive change Dr. Cook made in version four is a revision to
Section 3.4.1 of his report, which he updated to include tables stating the
minimal risk levels of a handful of chemicals found in crude oil and
dispersants on certain systems of the human body. 34
The Court first addresses defendants’ contention that Dr. Cook’s report
is unreliable and cannot establish general causation because it does not
identify a harmful level of exposure to a specific chemical to which plaintiff
was exposed. 35 The Court begins with this objection because “[s]cientific

32

33

34
35

This Court excluded earlier versions of Dr. Cook’s report in multiple
cases on the grounds that his opinion was unreliable and unhelpful.
See, e.g., Dawkins v. BP Expl. & Prod., Inc., No. 17-3533, 2022 WL
2315846, at *8-9 (E.D. La. June 28, 2022); Coleman v. BP Expl. &
Prod., Inc., No. 17-4158, 2022 WL 2314400, at *8-9 (E.D. La. June 28,
2022); Grant v. BP Expl. & Prod., Inc., No. 17-4334, 2022 WL
2467682, at *7-9 (E.D. La. July 6, 2022); Peairs v. BP Expl. & Prod.,
Inc., No. 17-3596, 2022 WL 2817852, at *7-11 (E.D. La. July 19, 2022).
Other sections of this Court have done the same. See, e.g., Novelozo v.
BP Expl. & Prod., No. 13-1033, 2022 WL 1460103, at *7 (E.D. La. May
9, 2022); Street, 2022 WL 1811144, at *6; Harrison v. BP Expl. & Prod.
Inc., No. 17-4346, 2022 WL 2390733, at *7 (E.D. La. July 1, 2022).
See, e.g., Cantillo v. BP Expl. & Prod., No. 17-3226, R. Doc. 35 (E.D.
La. Aug. 5, 2022); Seay v. BP Expl. & Prod., No. 17-4244, R. Doc. 53
(E.D. La. Aug. 5, 2022); Yarbrough v. BP Expl. & Prod., No. 17-4292,
R. Doc. 53 (E.D. La. Aug. 5, 2022); Magee v. BP Expl. & Prod., No. 174399, R. Doc. 54 (E.D. La. Aug. 8, 2022); Nestle v. BP Expl. & Prod.,
No. 17-4463, R. Doc. 61 (E.D. La. Sept. 12, 2022).
R. Doc. 48-4 at 37-61 (Cook Report).
R. Doc. 48-1 at 14-15.
16

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knowledge of the harmful level of exposure to a chemical” is considered “a
minimum fact[] necessary to sustain the plaintiff’s burden in a toxic tort
case.”

Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).

Accordingly, if the Court finds that plaintiff cannot “prove, at [a] minimum,
that exposure to a certain level of a certain substance for a certain period of
time can cause a particular condition in the general population,” then the
Court’s inquiry into general causation is complete. Williams v. BP Expl. &
Prod., Inc., No. 18-9753, 2019 WL 6615504, at *8 (E.D. La. Dec. 5, 2019)
(citing Knight, 482 F.3d at 351); Lee v. BP Expl. & Prod., Inc., No. 18-10381,
2020 WL 6106889, at *4 (E.D. La. Sept. 29, 2020) (“[D]istrict courts within
the Fifth Circuit have likewise required toxic tort plaintiffs to define ‘the level
of exposure necessary to produce effects’ in order to establish general
causation.”); see also Seaman v. Seacor Marine L.L.C., 326 F. App’x 721,
726-27 (5th Cir. 2009) (per curiam) (holding that “[w]ithout any facts that
would establish the allegedly harmful level of exposure . . . Dr. Prellop’s
opinion regarding diesel exhaust does not establish general causation”).
Here, the Court finds that Dr. Cook’s failure to identify the level of
exposure to a relevant chemical that can cause the conditions asserted in
plaintiff’s complaint renders his opinion unreliable, unhelpful, and incapable
of establishing general causation.
17

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Turning first to reliability, Dr. Cook makes clear in his report that a
foundation of toxicology is that “dose determines the poison.” 36 Because of
this maxim, Dr. Cook explains that “[t]oxicologists study chemicals for the
lowest levels that can cause adverse health effects . . . [which] requires
sophisticated studies that can control the low dose while accurately
measuring the effect of interest.” 37 The AMA Guide also emphasizes the
importance of determining the dose-response relationship. Specifically, the
AMA Guide states that “the most critical phase of the hazard evaluation
process” is to “determine whether the estimated dose was sufficient to
explain observed clinical effects known to be associated with the agent in
question.”38 It additionally cautions that “[i]f exposure-response and doseresponse

considerations

are

disregarded,

then

misinterpretations,

misunderstandings, erroneous judgments, and inappropriate actions
occur.”39
The closest Dr. Cook’s report comes to identifying a harmful level of
exposure that can trigger specific health conditions is his consideration of
the Bradford Hill factor of “dose-response.”40 But even in the sections of his

36
37
38
39
40

R. Doc. 48-4 at 31 (Cook Report).
Id.
R. Doc. 48-6 at 6-7.
Id. at 7.
See, e.g., R. Doc. 48-4 at 106 (Cook Report).
18

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report that are dedicated to the dose-response relationship and exposure, Dr.
Cook still fails to identify a harmful dose of any chemical to which plaintiff
was allegedly exposed. Further, he fails to even specify which constituent
chemicals within “crude oil” and “weathered oil” he is purportedly analyzing
for a dose-response relationship.

Instead, in the “dose-response

relationship” sections of his report, Dr. Cook simply cites studies from both
the Deepwater Horizon oil spill, as well as previous oil spills, which generally
found a positive association between respondents who reported higher levels
of exposure to crude oil and the prevalence of various medical conditions.41
For example, Dr. Cook’s “dose-response relationship” analysis on
rhinosinusitis states in full:
Kim et al. (2013) showed a dose-response by assigning residents
to zones based on their distance from the oil spill. The
researchers found a dose-response effect in all reported health
effects, including rhinitis. Rusiecki et al. (2022) also found a
dose-response by statistical analysis, with the responders who
had higher reported exposures having a higher incidence of
chronic sinusitis. 42
Notably, neither Dr. Cook, nor the two studies, specify a base level of
exposure that is necessary to cause rhinosinusitis. In the Kim, et al., study,
the respondents were “residents living in the Taean coastal area . . . [that]

41
42

Id. at 106, 113, 123, 128.
Id. at 106.
19

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had potential exposures to the oil spill from the Hebei Spirit tanker.”43 Given
the ambiguity in whether residents were even exposed to oil, the study does
not specify what level of exposure it concludes is associated with
rhinosinusitis. And in the Rusiecki, et al., 2022 study, whether a participant
was a responder to the oil spill or not was used as a proxy for exposure, and
“[o]ther exposure assessments were not used to classify the responders as
exposed.”44 Again, any assessment of actual exposure, let alone the level of
exposure to a particular chemical, was not available. These studies, both of
which are “silent on the level of exposure . . . that would be significant,” do
not assist Dr. Cook in “meeting [plaintiff]’s ‘minimal burden of establishing
by ‘[s]cientific knowledge . . . the harmful level of exposure to a chemical.’”
Seaman, 326 F. App’x at 727 (quoting Allen, 102 F.3d at 199).
Dr. Cook’s report does acknowledge that one of the limitations of the
studies he relies on is the “[l]imited availability of quantitative exposure
measures,” given the “[l]ikely low [level of] individual exposures.”45 For
example, he notes that the GuLF STUDY researchers represented that it was
“difficult to obtain accurate and comprehensive exposure information on
participants . . . because many of the assessments would have been made

43
44
45

Id. at 64 (emphasis added).
Id. at 78.
Id. at 92.
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months after the workers were exposed,” and “many workers will have had
multiple exposures during the oil spill, . . . such that single exposure
measurements may not be sufficient to fully assess total exposure.”46 The
report also mentions that the health hazard evaluations conducted by the
National Institute of Occupational Safety and Health “primarily utilized
qualitative assessment techniques rather than the traditional industrial
hygiene exposure assessment and quantitative measurement methods.”47
Although Dr. Cook notes these limitations, he provides no explanation about
the “extent to which [these] limitations compromise [his] findings . . . about
causation.” Reference Manual at 553.
Given Dr. Cook’s failure to determine the relevant harmful level of
exposure to chemicals to which plaintiff was exposed for plaintiff’s specific
conditions, the Court finds that he lacks sufficient facts to provide a reliable
opinion on general causation. See Moore v. Ashland Chem. Inc., 151 F.3d
269, 277-78 (5th Cir. 1998) (holding that the “district court was entitled to
conclude” that an expert’s opinion was “inadequate under Daubert” when
the expert “had no information on the level of exposure necessary for a
person to sustain the [relevant] injuries”); McGill v. BP Expl. & Prod., Inc.,

46
47

Id.
Id. at 65.
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830 F. App’x 430, 433 (5th Cir. 2020) (per curiam) (upholding the exclusion
of an expert’s opinion that was “not based on sufficient facts” and relied on
studies that failed to “provide conclusive findings on what exposure level of
Corexit is hazardous to humans”).
The Court also finds that Dr. Cook’s report is unhelpful to the factfinder
for many of the same reasons. Rule 702 requires that an expert’s opinion
must “help the trier of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702(a). “To be ‘helpful’ under Rule 702, the evidence
must possess validity when applied to the pertinent factual inquiry.” United
States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995). Courts should thus
exclude testimony that “fail[s] to provide a ‘relevant’ link with the facts at
issue.” Knight, 482 F.3d at 355.
Here, the Court finds that Dr. Cook’s opinion is unhelpful because of
his inability to link any specific chemical that plaintiff was allegedly exposed
to, at the level at which he was exposed, to the health conditions that he
purportedly experiences. Specifically, Dr. Cook’s conclusion that there is a
cause-and-effect relationship between the respiratory, ocular, and dermal
conditions he analyzed and “expos[ure] to crude oil, including weathered

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crude oil,” is unhelpful without identifying the specific chemicals and
exposure levels capable of causing specific conditions alleged by plaintiff. 48
Although Dr. Cook admits that there are thousands of chemicals in
crude oil, and that the chemical composition of weathered oil is highly
variable, he makes no attempt to identify which chemicals within crude oil
plaintiff was allegedly exposed to. Indeed, the majority of the studies he cites
similarly do not identify which chemicals respondents were exposed to, and
one study noted a concern about confounding variables, stating that some
respondents likely had unknown “petrochemical and other exposures not
due to their oil spill cleanup activities.” 49 See Wagoner, 813 F. Supp. 2d at
802 (“It is true that in Joiner, the Supreme Court indicated that an expert
opinion on general causation should rely on studies that examine the specific
agent that is at issue.” (emphasis added) (citing Joiner, 522 U.S. at 145-46)).
In providing a general causation determination, Dr. Cook had to assess
whether “the types of chemicals [that plaintiff] w[as] exposed to can cause
[his] particular injuries in the general population.” Knight, 482 F.3d at 355.
Given that Dr. Cook’s report does not identify which specific chemicals
plaintiff was exposed to, the Court finds his report is unhelpful to the

48
49

R. Doc. 48-4 at 120 (Cook Report).
Id. at 92.
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factfinder. See Knight, 482 F.3d at 355 (upholding the district court’s
exclusion of an expert because the expert relied on evidence that lacked “a
‘relevant’ link with the facts at issue”).
In reaching its decision, the Court rejects plaintiff’s efforts to defend
Dr. Cook’s failure to identify a harmful level of exposure to a specific
chemical. Plaintiff asserts that Dr. Cook’s analysis relies on peer-reviewed
scientific literature that is “the best, state of the art science on which to base
causation opinions related to BP Oil Spill worker exposures.”50 Plaintiff
attempts to bolster this position with an affidavit by Dr. Linda Birnbaum, the
former director of the National Institute of Environmental Health and
Safety, in which Dr. Birnbaum argues that it is not “plausible” to establish an
oil-spill responder’s quantitative exposure to a particular chemical at a given
level because of issues with data collection. As other sections of this court
have noted, Dr. Birnbaum’s affidavit “neither cures nor explains the
deficiencies in [Dr. Cook’s] report.” Griffin v. BP Expl. & Prod. Inc., 2023
WL 183894, at *5 (E.D. La. Jan. 13, 2023). “The question of an individual oil
responder’s exposure level is relevant to specific causation, not general
causation,” so “[t]he alleged impossibility of establishing a BP Oil Spill
responder’s quantitative exposure to a given chemical at a given level does

50

R. Doc. 53 at 1.
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not affect Dr. Cook’s ability to consult the relevant scientific and medical
literature on the harmful effects of oil to determine whether a relevant
chemical has the capacity to cause the harm alleged by plaintiff in the general
population.” Jenkins v. BP Expl. & Prod. Inc., 2023 WL 172044, at *2 (E.D.
La. Jan. 12, 2023) (internal quotation marks omitted). Dr. Birnbaum’s
representations about the difficulties scientists face quantifying individual
responders’ exposures are thus “irrelevant to the issue of general causation
in this case, which requires examination of the dose of exposure known to
cause harm in the general population.”51 Id.
Further, Dr. Cook states in his report that researchers associated with
the Deepwater Horizon oil spill studies that he relies on have expressed
concerns about the “accur[acy] and comprehensive[ness]” of respondents’
exposure responses.52

For example, the report notes that NIOSH

investigators “disregarded the workers’ self-reports,” determining that the
workers’ self-reported exposures had not been likely. 53 Given the concerns

51

52

53

Further, Dr. Birnbaum was not timely disclosed as an expert. Her
affidavit is thus procedurally improper. See Jenkins, 2023 WL 172044,
at *1 n.6.
R. Doc. 48-4 at 92 (Cook Report) (noting that “GuLF STUDY
researchers also noted that it would be difficult to obtain accurate and
comprehensive exposure information on participants in the GuLF
STUDY”).
Id. at 72.
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about the accuracy of this model from both plaintiff’s expert as well as the
investigators themselves, the Court does not find that, in this context, Dr.
Cook’s conclusions are reliable.
In sum, plaintiff, as the party offering the testimony of Dr. Cook, has
failed to meet his burden of establishing the reliability and relevance of Dr.
Cook’s report. Moore, 151 F.3d at 276. Given that Dr. Cook’s report is
unreliable and fails to provide the “minimal facts necessary” to establish
general causation in this case, see Allen, 102 F.3d at 199, the Court grants
defendants’ motion to exclude Dr. Cook’s testimony. See Seaman, 326 F.
App’x at 727-28 (upholding the district court’s exclusion of an expert’s
testimony that did “not come close to establishing either general or specific
causation” and “provide[d] no clue regarding what would be a harmful level
of Ferox exposure”).

III. PLAINTIFF’S SPOLIATION MOTION
A.

Legal Standard

The spoliation of evidence doctrine concerns the intentional
destruction of evidence. Menges v. Cliffs Drilling Co., 2000 WL 765082, at
*1 (E.D. La. June 12, 2000) (citing Vodusek v. Bayliner Marine Corp., 71
F.3d 148, 156 (4th Cir. 1995); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d
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76, 78 (3d Cir.1994)). If a party intentionally destroys evidence, the trial
court may exercise its discretion to impose sanctions on the responsible
party. Id. The sanctions may include an instruction to the jury to infer that
“that the evidence would have been unfavorable to the party responsible for
its destruction.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998).
See, e.g., Vodusek, 71 F.3d at 155; Schmid, 13 F.3d at 78; Glover v. BIC
Corp., 6 F.3d 1318, 1329 (9th Cir. 1993); Nation-Wide Check Corp. v. Forest
Hills Distribs., 692 F.2d 214, 217–18 (1st Cir. 1982); In re Hopson Marine
Transp., Inc., 168 F.R.D. 560, 567 (E.D. La. 1996). This adverse inference
rule “derives from the common sense notion that a party’s destruction of
evidence which it has reason to believe may be used against it in litigation
suggests that the evidence was harmful to the party responsible for its
destruction.”

Kronisch, 150 F.3d at 126.

Accordingly, to restore the

prejudiced party, an adverse inference “plac[es] the risk of an erroneous
judgment on the party that wrongfully created the risk.”

Id. (quoting

Nation–Wide Check, 692 F.2d at 218).
Before a court may consider imposing sanctions, however, “the party
having control over the evidence must have had an obligation to preserve it
at the time it was destroyed.” Menges, 2000 WL 765082, at *3. Such a duty
“arises when the party has notice that the evidence is relevant to litigation.”
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Id. Once a court concludes that a party was obliged to preserve the evidence,
it must then consider whether the evidence was intentionally destroyed and
the likely contents of that evidence. Id. The Fifth Circuit requires the party
who seeks sanctions to show that the party who allegedly spoiled the
evidence acted in “bad faith.” King v. Illinois Cent. R.R., 337 F.3d 550, 556
(5th Cir. 2003); see also Anderson v. Prod. Mgmt. Corp., No. 98–2234,
2000 WL 492095, at *3 (E.D. La. Apr. 25, 2000) (collecting authorities).
Negligence is not enough to support the imposition of sanctions for
spoliation, “for it does not sustain an inference of consciousness of a weak
case.” Vick v. Texas Employment Comm’n, 514 F.2d 734, 737 (5th Cir. 1975).
Accordingly, a party seeking sanctions is not entitled to an adverse inference
unless that party can show that its adversary intentionally and in bad faith
disposed of the evidence.

B.

Discussion

Plaintiff’s motion does not seek an adverse inference. Rather, plaintiff
seeks the greater sanction of admission of Dr. Cook’s report. Plaintiff asserts
that this sanction is appropriate because “BP’s decision not to record

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quantitative exposure data during the BP Oil Spill response has deprived
plaintiff of data which would quantitatively establish his exposure.”54
A party seeking sanctions for spoliation generally must show that “(1)
the party with control over the evidence had an obligation to preserve it at
the time it was destroyed; (2) the evidence was destroyed with a culpable
state of mind; and (3) the destroyed evidence was ‘relevant’ to the party’s
claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense.” Coastal Bridge Co., LLC v. Heatec, Inc., 833
F. App’x 565, 574 (5th Cir. 2020) (citing Port of S. La. v. Tri-Parish Indus.,
927 F. Supp. 2d 332, 346 (E.D. La. 2013); Herster v. Bd. of Supervisors of
Louisiana State Univ., 887 F.3d 177, 190 (5th Cir. 2018)).
Plaintiff’s spoliation motion suffers a number of deficiencies. First,
plaintiff’s contention that BP’s failure to conduct monitoring amounts to
spoliation is based on the faulty premise that BP was obligated to develop
evidence in anticipation of litigation. Fairley v. BP Expl. & Prod. Inc., No.
17-3988, 2022 WL 16731817, at *3 (E.D. La. Nov. 3, 2022). Spoliation is the
intentional destruction of evidence or failure to preserve evidence in one’s
possession. Menges v. Cliffs Drilling Co., 2000 WL 765082, at *1 (E.D. La.
June 12, 2000) (citing Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156

54

R. Doc. 51-1 at 1.
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(4th Cir. 1995); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d
Cir. 1994)).

Here, plaintiff has identified no evidence that defendants

destroyed, and courts have made clear that, as a general matter, a “failure to
collect evidence [is] not a failure to preserve evidence, and as such, [is] not
spoliation.” See, e.g., Fairley, 2022 WL 16731817, at *3 (E.D. La. Nov. 3,
2022); De Los Santos v. Kroger Tex., LP, 2015 WL 3504878, at *6 n.4 (N.D.
Tex. June 3, 2015) (holding that “the duty to preserve evidence does not
include the duty to create evidence.”); United States v. Greco, 734 F.3d 441,
447 (6th Cir. 2013) (“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.”).
Plaintiff asserts that BP was aware of risks to clean-up workers’ heath,
knew that biological monitoring was useful, and received suggestions to
conduct monitoring, but “suggestions and proposals do not equate to an
affirmative duty.” Fairley, 2022 WL 16731817, at *4 (E.D. La. Nov. 3, 2022)
(denying plaintiff’s spoliation motion premised on BP’s alleged failure to
collect data related to the oil spill cleanup). As other sections of this court
have observed, plaintiff identifies “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, . . . concedes that
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no such evidence ever existed for BP to preserve.” Jenkins, 2023 WL 172044,
at *1.
Further, the remedy plaintiff seeks—admission of Dr. Cook’s expert
opinion despite its numerous deficiencies—is unwarranted. Putting aside
that plaintiff has not shown sanctionable conduct by BP, Dr. Cook’s report is
flawed in ways unrelated to BP’s decision not to conduct monitoring. Indeed,
“a general causation opinion is not dependent upon data from the incident
at issue, but does require an explanation of whether the exposure to a
particular chemical is capable generally of causing certain health issues for
the general population.” Fairley, 2022 WL 16731817, at *4. Dr. Cook’s failure
to link any specific chemicals to the conditions allegedly suffered by plaintiff
prevents the admission of Cook’s opinion. The Court thus declines plaintiff’s
invitation to admit Dr. Cook’s report as a sanction “despite its failure to meet
the requirements of Fed. R. Evid. 702.” Francisco v. BP Expl. & Prod. Inc.,
No. 17-3212, Doc. 70 (E.D. La. Feb. 16, 2023). Accordingly, the Court denies
plaintiff’s request that it admit Dr. Cook’s report as a sanction for BP’s
alleged spoliation.

IV.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.

Legal Standard
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Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
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which would ‘entitle it to a directed verdict if the evidence went
uncontroverted at trial.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with evidence sufficient to demonstrate the “existence of a
genuine dispute of material fact,” or by “showing that the moving party’s
evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the

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existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).

B.

Discussion

In their motion for summary judgment, defendants contend that they
are entitled to summary judgment because plaintiff cannot establish either
general or specific causation. 55 As discussed in Section II.B, supra, expert
testimony is required to establish general causation in toxic-tort cases like
this one. See McGill, 830 F. App’x at 433-34 (affirming summary judgment
where plaintiff lacked admissible expert testimony on general causation); see
also Macon v. BP Expl. & Prod. Inc., No. 17-3548, 2022 WL 1811135, at *7
(E.D. La. June 2, 2022) (dismissing plaintiff’s claims “[b]ecause expert
testimony is required on [general causation]”). Here, the Court has excluded
testimony from plaintiff’s only expert offering an opinion on general
causation.
In his opposition to defendants’ motion, plaintiff notes that other
sections of this court have denied summary judgment in cases in which B3
plaintiffs have brought claims premised on transient or temporary

55

R. Doc. 49.
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symptoms.56 See Stephens v. BP Expl. Prod. Inc., 2022 WL 1642136 (E.D.
La. May 24, 2022); Wallace v. BP Expl. & Prod. Inc., 2022 WL 1642166 (E.D.
La. May 24, 2022); Turner v. BP Expl. & Prod. Inc., 2022 WL 1642142 (E.D.
La. May 24, 2022); Walker v. BP Expl. & Prod. Inc., No. 17-3012, R. Doc. 69
(E.D. La. June 15, 2022). But those summary judgment motions were
premised on a lack of expert testimony on specific causation. The defendants
did not challenge the admissibility of Dr. Cook’s general causation opinions
in those cases. Here, the Court need not “sort [plaintiff’s] claimed symptoms
into those requiring expert testimony on specific causation and those that do
not because [plaintiff] cannot provide the required expert testimony on
general causation once Cook’s report is excluded.” Johns v. BP Expl. & Prod.
Inc., 2022 WL 1811088, at *3 n.44 (E.D. La. June 2, 2022).
Given that plaintiff cannot prove a necessary element of his claims
against defendants, his claims must be dismissed. See Williams, 2019 WL
6615504, at *11 (“When a plaintiff has no expert testimony to prove his
medical diagnosis or causation at trial, the plaintiff’s suit may be dismissed
at the summary judgment stage.”); see also McGill, 830 F. App’x at 434
(upholding the district court’s grant of summary judgment given that the
plaintiff did “not put forward any non-speculative evidence that Corexit and

56

R. Doc. 52 at 4-7.
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oil exposure cause the types of illnesses he suffer[ed] from”). Accordingly,
the Court grants defendants’ motion for summary judgment.

V.

CONCLUSION

For the foregoing reasons, the Court GRANTS the BP parties’ motion
to exclude the testimony of Dr. Cook. The Court DENIES plaintiff’s motion
to admit Dr. Cook’s report as a sanction for defendants’ alleged spoliation.
The Court also GRANTS the BP parties’ motion for summary judgment.
Plaintiff’s claims are DISMISSED WITH PREJUDICE.

1st day of March, 2023.
New Orleans, Louisiana, this _____

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

36