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

Filing 71

ORDER AND REASONS - IT IS ORDERED that Defendants' 54 Motion in Limine and 55 Motion for Summary Judgment are GRANTED. IT IS FURTHER ORDERED that all of Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 9/15/2022. (sa)

Case 2:17-cv-03443-JTM-KWR Document 71 Filed 09/15/22 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KHALED ABDELFATTAH

CIVIL ACTION

VERSUS

NO. 17-3443

BP EXPLORATION & PRODUCTION,
INC. ET AL.

SECTION: H

ORDER AND REASONS
Before the Court is a Motion in Limine to Exclude the General Causation
Opinions of Plaintiff’s Expert, Dr. Jerald Cook (Doc. 54) and a Motion for
Summary Judgment Due to Plaintiff’s Inability to Prove Medical Causation
(Doc. 55), both 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 case 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 chemicals used during
the oil spill response (e.g., dispersant).” 2 These cases were originally part of a

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).
2 Id.
1

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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.
Plaintiff Khaled Abdelfattah alleges continuous exposure to oil and
dispersants while decontaminating and handling equipment following the
Deepwater Horizon oil spill. 5 Plaintiff claims to suffer from a host of medical
conditions because of the exposure, including “[c]oughing, itchy rashes,
headache, irritated stomach, severe back aches that interfere with breathing,
acid reflux, irritated itchy and watery eyes.” 6 Plaintiff asserts claims under the
general maritime law of negligence, negligence per se, and gross negligence
with respect to the spill and its cleanup. 7
Now before the Court are Defendants’ Motion in Limine to Exclude the
General Causation Opinions Testimony of Plaintiff’s Expert and their Motion
for Summary Judgment Due to Plaintiff’s Inability to Prove Medical
Causation. In the Motion in Limine, Defendants argue that Plaintiff’s 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 Motion for Summary
Judgment, Defendants argue that assuming their Motion in Limine is granted,

Id. at 2 n.3.
Id. at 7–8.
5 See Doc. 54-2.
6 See Doc. 1-1 at 5.
7 See Doc. 34.
3
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Plaintiff lacks expert testimony on general causation and therefore fails to
present a genuine issue of material fact as to whether his injuries were caused
by exposure to oil and dispersants. Plaintiff opposes.
LEGAL STANDARDS
I.

Daubert Motion
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.’” 8 All types of expert testimony are
subject to this gatekeeping. 9 The party offering the expert testimony bears the
burden of proving its reliability and relevance by a preponderance of the
evidence. 10
The reliability of expert testimony “is determined by assessing whether
the reasoning or methodology underlying the testimony is scientifically
valid.” 11 The Court may consider several nonexclusive factors in determining
reliability, including: (1) whether the technique has been tested, (2) whether

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)).
9 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
10 See Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
11 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007).
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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. 12 Granted, the
reliability analysis is a flexible one and “not every Daubert factor will be
applicable in every situation.” 13 As the gatekeeper of expert testimony, this
Court enjoys broad discretion in determining admissibility. 14
II.

Motion 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.” 15 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 16
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. 17 “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.” 18 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.” 19 “In response to a
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).
14 See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
15 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
17 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
18 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
19 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
12
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properly supported motion for summary judgment, the non-movant must
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.” 20 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 21 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 22
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.” 23 “The
plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation.” 24 “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.” 25 Here, Dr. Cook is listed as Plaintiff’s only expert witness
on causation. 26 On this topic, Dr. Cook produced a report dated June 21, 2022
and entitled “Health Effects Among Deepwater Horizon Oil Spill Response and

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
21 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)).
22 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
23 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).
24 Davis v. BP Expl. & Prod., Inc., No. 17-4664, 2022 WL 2789027, at *1 (E.D. La. July 15,
2022).
25 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007) (internal quotation
marks omitted).
26 See Doc. 64.
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Cleanup Workers: A Cause and Effect Analysis.” 27 This report is not unique to
this case; another judge of this Court has described it as “an omnibus, non-case
specific general causation expert report that has been used by many B3
plaintiffs.” 28
Seven sections of the Eastern District of Louisiana, including this one,
excluded an earlier version of Dr. Cook’s report dated March 14, 2022. 29 Dr.
Cook’s June report does not appear to make any changes that disturb the
reasons for excluding the March version. Indeed, at least two sections have
already excluded the June 21, 2022 report as well. 30 Accordingly, for the same
reasons articulated by Judges Africk, Ashe, Vance, Barbier, Morgan, and
Zainey, the Court grants Defendants’ Motion in Limine. Accordingly, Plaintiff
cannot prove general causation, and the Court also grants Defendants’ Motion
for Summary Judgment.

CONCLUSION
For the foregoing reasons, Defendants’ Motion in Limine and Motion for
Summary Judgment are GRANTED.

See Doc. 54-3.
McIntosh v. BP Expl. & Prod., Inc., No. 13-1020, 2022 WL 2342480, at *1 (E.D. La. June
29, 2022).
29 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.).
30 Moore v. BP Expl. & Prod., Inc., No. CV 17-4456, 2022 WL 3594631, at *10 (E.D. La. Aug.
23, 2022) (Vance, J.); Cantillo v. BP Expl. & Prod., No. 17-3226, R. Doc. 35 (E.D. La. Aug. 5,
2022) (Barbier, J.); Seay v. BP Expl. & Prod., No. 17-4244, R. Doc. 53 (E.D. La. Aug. 5, 2022)
(Barbier, J.); Yarbrough v. BP Expl. & Prod., No. 17-4292, R. Doc. 53 (E.D. La. Aug. 5, 2022)
(Barbier, J.).
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IT IS ORDERED that all of Plaintiff’s claims are DISMISSED WITH
PREJUDICE.
New Orleans, Louisiana this 15th day of September, 2022.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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