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

Filing 81

ORDER: IT IS HEREBY ORDERED that Defendants' Daubert 54 Motion to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook is GRANTED. IT IS FURTHER ORDERED that Defendants' 55 Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against Defendants are DISMISSED with prejudice. Signed by Judge Wendy B Vitter on 9/27/2022. (mmv)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LLOYD STEWART, JR.

CIVIL ACTION

VERSUS

NO. 17-3613

BP EXPLORATION & PRODUCTION,
INC., ET AL.

SECTION D (5)

ORDER
Before the Court is BP’s Daubert Motion to Exclude the Causation Testimony
of Plaintiff’s Expert, Dr. Jerald Cook1 filed by Defendants BP Exploration &
Production Inc., BP America Production Company, BP p.l.c., Halliburton Energy
Services, Inc., Transocean Holdings, LLC, Transocean Deepwater, Inc., and
Transocean Offshore Deepwater Drilling, Inc. (collectively “Defendants”) as well as
Defendants’ Motion for Summary Judgment.2

Plaintiff Lloyd Stewart, Jr.

(“Plaintiff”) opposes both Motions.3 Defendants have filed Replies in support of their
Motions.4
After careful consideration of the parties’ memoranda, the record, and the
applicable law, the Motions are GRANTED.
I.

FACTUAL & PROCEDURAL BACKGROUND

This case arises from the Deepwater Horizon oil spill in the Gulf of Mexico in
2010 and the subsequent cleanup efforts of the Gulf Coast. On January 11, 2013,
United States District Judge Carl J. Barbier, who presided over the multidistrict

R. Doc. 54.
R. Doc. 55.
3 R. Doc. 65; R. Doc. 66.
4 R. Doc. 72; R. Doc. 73.
1
2

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litigation arising out of the Deepwater Horizon incident, approved the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).5
However, certain individuals, referred to as “B3” plaintiffs, either opted out of or were
excluded from the MSA.6 Plaintiff Lloyd Stewart, Jr. opted out of the MSA and,
accordingly, is a B3 plaintiff.7
Plaintiff filed this individual action against Defendants on April 18, 2017 to
recover for injuries allegedly sustained as a result of the oil spill.8 For approximately
eighteen months in 2010 and 2011, Plaintiff worked as a beach cleanup worker,
tasked with cleaning up oil and oil-covered debris from the beaches and coastal areas
in Gulfport, Biloxi, Point Cadet, Petit Bois, Pascagoula, and Milmer Station,
Mississippi, as well as Pensacola, Florida.9

Plaintiff alleges that Defendants’

negligence and recklessness in both causing the Gulf oil spill and subsequently failing
to properly design and implement a clean-up response caused him to suffer myriad
injuries including stomach pain, fatigue, muscle and joint cramps, high blood
pressure, headaches, rashes, and sinus problems.10 Specifically, Plaintiff seeks to
recover economic damages, personal injury damages—including damages for past
and future medical expenses and for pain and suffering—punitive damages, and
attorneys’ fees, costs, and expenses.11

See Brown v. BP Expl. & Prod. Inc., Civ. A. No. 18-9927, 2019 WL 2995869, at *1 (E.D. La. July 9,
2019) (citation omitted) (Africk, J.).
6 See In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mexico, on Apr. 20, 2010, No. MDL
2179, 2021 WL 6053613, at *2 (E.D. La. Apr. 1, 2021).
7 R. Doc. 1 at ¶ 5.
8 Id.
9 R. Doc. 54-1 at p. 2; R. Doc. 54-2 at p. 5.
10 R. Doc. 1 at pp. 4–5; R. Doc. 1-1 at pp. 5, 8.
11 R. Doc. 1 at pp. 5–6.
5

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To help support his claims that exposure to the chemicals present in the oil
spilled by Defendants caused his particular health symptoms, Plaintiff offers the
report (“Report”) and testimony of Dr. Jerald Cook.12 Dr. Cook is a retired Navy
physician with expertise specifically as an occupational and environmental
physician.13 Dr. Cook’s Report is not tailored directly to Plaintiff’s claims; rather, Dr.
Cook’s generic causation report has been utilized by numerous B3 plaintiffs,
including many plaintiffs currently before this Court as well as in other cases before
other sections of this court.14 Accordingly, Dr. Cook’s Report pertains only to general
causation and not to specific causation.15
Dr. Cook’s Report from March 14, 2022—the second version of his Report and
the one at issue in this case—contains five chapters.16 Chapter 1 details Dr. Cooks
expert credentials, which Defendants do not challenge.17 Chapter 2 describes the
Deepwater Horizon oil spill.18

Chapter 3 outlines the particular methodologies

employed by Dr. Cook in reaching his opinions.19 Specifically, Dr. Cook describes how
he relied upon the so-called Bradford Hill factors in conducting his general causation
analysis.20

After evidence demonstrating an association between a particular

R. Doc. 54-5.
Id. at p. 5.
14 R. Doc. 54-1 at p. 3; Johns v. BP Expl. & Prod. Inc., No. CV 17-3304, 2022 WL 1811088, at *2 (E.D.
La. June 2, 2022) (Ashe, J.) (“Cook issued an omnibus, non-case specific general causation expert
report that has been used by many B3 plaintiffs.”).
15 R. Doc. 66 at p. 3 (“[P]laintiffs had Dr. Cook prepare a report with his general causation
opinions[.]”).
16 R. Doc. 54-5.
17 Id. at p. 5; R. Doc. 54-1 at p. 6.
18 R. Doc. 54-5 at p. 7.
19 Id. at p. 14.
20 Id. at pp. 24–29.
12
13

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chemical and a disease has been established, the Bradford Hill criteria are used to
determine whether a causal relationship exists.21 One factor in particular, the doseresponse relationship, underlies the main basis of Defendants’ argument regarding
the unreliability of the Report.22
Next, Chapter 4 discusses a number of studies examining both the Deepwater
Horizon oil spill as well as other historic oil spills from around the world.23 This
section purports to demonstrate a relationship between exposure to oil and a variety
of diseases and health effects. The Report includes a number of Tables with data
taken from several oil spill studies demonstrating a higher prevalence of certain
health conditions among those spill responders who were exposed to oil as compared
to persons not exposed.24 Finally, Chapter 5 presents Dr. Cook’s opinions on general
causation for several different categories of health conditions: (1) respiratory
conditions; (2) dermal conditions; (3) ocular conditions; and (4) cancer. 25
Defendant filed the instant Motions on June 13, 2022.26 In their Daubert
Motion in Limine, Defendants contend that Dr. Cook’s report should be excluded as
it is both unreliable and unhelpful to the trier of fact.27 Defendants primarily point
to the opinions of other sections of this court which have excluded this very same

Id. at p. 24. The Bradford Hill criteria include: “(1) Temporal relationship, (2) Strength of the
association, (3) Dose-response relationship, (4) Replication of the findings, (5) Biological plausibility,
(6) Consideration of alternative explanations, (7) Cessation of exposure, (8) Specificity of the
association, and (9) Consistency with other knowledge.” Id. at p. 25 (citing Reference Manual on
Scientific Evidence, Third Edition (National Research Council, 2011)).
22 R. Doc. 54-1 at pp. 7–11.
23 R. Doc. 54-5 at p. 32.
24 Id. at pp. 46–60.
25 Id. at p. 70.
26 R. Doc. 54; R. Doc. 55.
27 R. Doc. 54-1 at p. 6.
21

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Report on grounds of unreliability to suggest that this Court should likewise exclude
the Report.28 Further, Defendants contend that Dr. Cook’s specific methodology is
unreliable and that Dr. Cook failed to establish the harmful level of exposure to the
chemicals Plaintiff allegedly was exposed to at which harmful health effects occur. 29
Next, because Dr. Cook should be excluded to testify, Defendants argue, the Court
should grant their Motion for Summary Judgment as Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement under
controlling Circuit precedent.30
Plaintiff disputes Defendants’ characterization of Dr. Cook’s Report. Plaintiff
argues that Dr. Cook utilized a proper methodology in conducting his general
causation analysis and that he thoroughly explained his methods.31 Further, Plaintiff
argues that the Report does provide adequate harmful exposure level data for each
health condition exhibited by Plaintiff and that to the extent that Dr. Cook is unable
to provide more specific exposure-level data, it is the fault of Defendants for
improperly restricting access to scientific research teams to gather such data.32
Finally, Plaintiff contends that expert testimony is not necessary for a transient
symptom case. In support of that argument, Plaintiff points to orders from other
sections of this court in which the court found that “expert testimony on general
causation combined with specific evidence of the nature of the class member’s

Id. at pp. 7–8; R. Doc. 72 at pp. 2–3.
R. Doc. 54-1 at pp. 7–16.
30 R. Doc. 55-1 at p. 2.
31 R. Doc. 66 at pp. 19–20.
32 Id. at pp. 4–14.
28
29

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exposure is sufficient to permit the jury to conclude that the E.A. release was more
likely than not the cause of the class representative’s transient symptoms.”33
Further, in his opposition to Defendants’ Motion for Summary Judgment, Plaintiff
points to orders from other sections of this court which concluded that expert
testimony may not be required to establish symptoms within the common knowledge
of lay people.34
The Court addresses each argument and each Motion in turn.
II.

LEGAL STANDARD

A. Motion in Limine
The district court has considerable discretion to admit or exclude expert
testimony under Fed. R. Evid. 702,35 and the burden rests with the party seeking to
present the testimony to show that the requirements of Rule 702 are met.36 Rule 702
provides that an expert witness “qualified . . . by knowledge, skill, experience,
training or education may testify in the form of an opinion” when all of the following
requirements are met:
(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

Id. at p. 16 n.15 (quoting Guidry v. Dow Chem. Co. No. 19-12233, 2021 WL 4460505, at *3 (E.D.
La. Sept. 29, 2021)).
34 R. Doc. 65 at pp. 4–6.
35 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138–39, 118 S.Ct. 512 (1997); Seatrax, Inc. v. Sonbeck
Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000); Tajonera v. Black Elk Energy Offshore Operations, LLC,
Civ. A. No. 13-0366 c/w 13-0550, 13-5137, 13-2496, 13-5508, 13-6413, 14-374, 14-1714, 2016 WL
3180776, at *8 (E.D. La. June 7, 2016) (Brown, J.) (citing authority).
36 Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
33

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(d)
The expert has reliably applied the principles and
methods to the facts of the case.37
Rule 702 codifies the Supreme Court’s opinion in Daubert v. Merrell Dow
Pharmaceuticals, Inc., which charges district courts to act as “gatekeepers” when
determining the admissibility of expert testimony.38 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”39 According
to the Fifth Circuit, reliability is determined by assessing whether the reasoning or
methodology underlying the testimony is scientifically valid, while relevance depends
on whether the reasoning or methodology underlying the testimony can be properly
applied to the facts at issue.40 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.41
To satisfy the reliability prong of the Daubert/Rule 702 analysis, a “party
seeking to introduce expert testimony must show (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case.”42 To prove reliability, the proponent of the expert testimony must
present some objective, independent validation of the expert’s methodology.43 The

Fed. R. Evid. 702; Tajonera, Civ. A. No. 13-0366, 2016 WL 3180776, at *8.
United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993)).
39 United States v. Ebron, 683 F.3d 105, 139 (5th Cir. 2012) (citing United States v. Valencia, 600 F.3d
389, 423 (5th Cir. 2010)).
40 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
41 Tajonera, 2016 WL 3180776, at *8 (citing Daubert, 509 U.S. at 590).
42 Recif Res., LLC v. Juniper Cap. Advisors, L.P., Civ. A. No. H-19-2953, 2020 WL 5623982, at *2 (S.D.
Tex. Sept. 18, 2020) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009)) (internal quotation
marks omitted).
43 Recif Resources, LLC, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531,
536 (5th Cir. 2013)).
37
38

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objective of this Court’s gatekeeper role is to ensure that an expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.”44
B. Summary Judgment
Summary judgment is appropriate under Federal Rule of Civil Procedure 56
“if 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.”45 When assessing whether a
genuine dispute regarding any material fact exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or
weighing the evidence.”46 While all reasonable inferences must be drawn in favor of
the nonmoving party, a party cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions or “only a scintilla of evidence.” 47 Instead,
summary judgment is appropriate if a reasonable jury could not return a verdict for
the nonmoving party.48
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 which would
entitle it to a directed verdict if the evidence went uncontroverted at trial.”49 The

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hodges v. Mack Trucks Inc., 474 F.3d 188,
194 (5th Cir. 2006).
45 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986).
46 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
(citations omitted).
47 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
48 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson, 477 U.S. at 248).
49 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
44

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non-moving party can then defeat summary judgment by either submitting 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.”50 If, however,
the nonmoving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the nonmoving
party’s claim.51 The burden then shifts to the nonmoving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’”52
III.

ANALYSIS

A. Motion in Limine
The Court recognizes that it does not write on a blank slate when addressing
the admissibility of Dr. Cook’s expert report dated March 14, 2022. Every section of
this court—eight in total—to have considered the identical issue presented in the
instant Motion has uniformly held that Dr. Cook’s report fails to satisfy the Daubert
standards for reliability.53

While the Court finds the thoughtful opinions and

Id. at 1265.
See Celotex, 477 U.S. at 322–23.
52 Id. at 324 (quoting Fed. R. Civ. P. 56(e)).
53 See, e.g., Novelozo v. BP Expl. & Prod. Inc., No. CV 13-1033, 2022 WL 1460103 (E.D. La. May 9,
2022) (Africk, J.); Johns, 2022 WL 1811088 (Ashe, J.); Heathington v. BP Expl. & Prod. Inc., No. CV
17-4353, 2022 WL 2986490 (E.D. La. July 28, 2022) (Barbier, J.); Baggett v. BP Expl. & Prod. Inc., No.
CV 17-3030, 2022 WL 4242521 (E.D. La. Sept. 13, 2022) (Guidry, J.); Reed v. BP Expl. & Prod., Inc.,
No. CV 17-3603, 2022 WL 3099925 (E.D. La. Aug. 4, 2022) (Milazzo, J.); Harrison v. BP Expl. & Prod.
Inc., No. CV 17-4346, 2022 WL 2390733 (E.D. La. July 1, 2022) (Morgan, J.); Dawkins v. BP Expl. &
50
51

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analyses of the other Sections to be persuasive, the Court nevertheless conducts an
independent inquiry here.
Defendants argue that Dr. Cook’s Report should be excluded for five principal
reasons: (1) Dr. Cook’s failure to verify Plaintiff’s alleged medical conditions; (2) Dr.
Cook’s failure to follow the proper causation-analysis methodology; (3) Dr. Cook’s
failure to adequately evaluate the relevant scientific epidemiological literature; (4)
Dr. Cook’s failure to identify the harmful level exposure for each and every chemical
that Plaintiff alleges to have been exposed to; and (5) Dr. Cook’s failure to make his
opinions helpful to the trier of fact in this case due to the lack of overlap between Dr.
Cook’s opinions and Plaintiff’s allegations.54
Plaintiff’s response is twofold: (1) that expert testimony on specific causation
is not required where, as here, the physical symptoms complained of are temporary
and within a layperson’s common knowledge; and (2) that Dr. Cook’s Daubert
methodology is sufficient to establish general causation.55 Regarding this latter
contention, Plaintiff argues that Dr. Cook has thoroughly analyzed the relevant
scientific epidemiological literature such as the Coast Guard Cohort and the GuLF
STUDY and that Dr. Cook does address the requisite harmful exposure level data. 56
Additionally, Plaintiff chides Defendants for allegedly obstructing the ability of
researchers to conduct a proper analysis of the oil spill by allegedly preventing the

Prod., Inc., No. CV 17-3533, 2022 WL 2315846 (E.D. La. June 28, 2022) (Vance, J.); Davis v. BP Expl.
& Prod., Inc., No. CV 17-4664, 2022 WL 2789027 (E.D. La. July 15, 2022) (Zainey, J.).
54 R. Doc. 54-1 at pp. 7, 11–16.
55 R. Doc. 66 at pp. 14, 19.
56 Id. at pp. 9–10, 19–20.

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recording of certain dermal and biological monitoring data.57

Finally, Plaintiff

disagrees with Defendants’ argument that there is not sufficient overlap between the
health effects addressed in Dr. Cook’s report and the health effects alleged by
Plaintiff.58
The burden of proof is on the B3 plaintiffs to prove that “the legal cause of the
claimed injury or illness is exposure to oil or other chemicals used during the
response.”59 To prove causation, the B3 plaintiffs are required to provide reliable
expert testimony.60 “A plaintiff in such a case cannot expect lay fact-finders to
understand medical causation; expert testimony is thus required to establish
causation.”61
Courts use “a two-step process in examining the admissibility of causation
evidence in toxic tort cases.”62

First, a court must determine whether general

causation exists.63 “General causation is whether a substance is capable of causing a
particular injury or condition in the general population.”64 Second, if the court finds
that there is admissible general-causation evidence, “the district court must
determine whether there is admissible specific-causation evidence.’”65 “[S]pecific

Id. at pp. 4–9. The Court notes that this allegation was the subject of a discovery dispute leading
to the imposition of sanctions against Defendants. See Torres-Lugo v. BP Expl. & Prod., Inc., No. 20210, R. Doc. 136 (E.D. La. July 18, 2022).
58 R. Doc. 66 at p. 20.
59 In re Oil Spill, 2021 WL 6053613, at *11.
60 See, e.g., Seaman v. Seacor Marine, LLC, 326 Fed. Appx. 721, 723 (5th Cir. 2009).
61 Id. (citing Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).
62 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007).
63 Id.
64 Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)).
65 Id.
57

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causation is whether a substance caused a particular individual’s injury.”66 If the
court finds that there is no admissible general causation evidence, it need not
consider the issue of specific causation.67
To establish general causation, a causation expert must identify “the harmful
level of exposure to a chemical” at which physical symptoms manifest.68 As explained
by Dr. Cook, nearly every chemical on Earth may be toxic or even fatal at a certain
level of exposure.69 Thus, causation experts determine not only whether a chemical
is capable of causing certain health effects, but at what level of exposure do those
health affects appear. Experts, such as Dr. Cook, refer to this inquiry with the
maxim, “the dose determines the poison.”70 This analysis is also referred to in the
Bradford Hill factors as the dose-response relationship.71
In recognition of the importance of this step of the causation analysis, the
American Medical Association’s Guide to the Evaluation of Disease and Injury
Causation states that determining “whether the estimated dose was sufficient to
explain observed clinical effects known to be associated with the agent in question”
is the “most critical phase of the hazard evaluation process.” 72 Relatedly, the Fifth
Circuit states that this detail is one of the “minimal facts necessary to sustain the

Id.
Id. (“Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to
admissible general-causation evidence.”).
68 Allen, 102 F.3d at 199.
69 R. Doc. 54-5 at p. 27; see also English v. BP Expl. & Prod. Inc., No. CV 13-1033, R. Doc. 48-6
(Deposition of Dr. Jerald Cook) at 150:14–16 (E.D. La. September 26, 2022) (Vitter, J.) (“Like I said,
something not very harmful, such as water, can become harmful at a high enough dose.”).
70 R. Doc. 54-5 at p. 27.
71 Id.
72 R. Doc. 54-7 at pp. 6–7. Dr. Cook testified that he regularly consults the AMA Guide. See English,
R. Doc. 48-6 (Deposition of Dr. Jerald Cook) at 59:22–60:1.
66
67

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plaintiff’s burden in a toxic tort case.”73 Plaintiffs must provide reliable expert
testimony establishing the requisite level of exposure necessary to cause each alleged
physical harm.74 Accordingly, failure to properly identify the level of exposure to a
particular chemical at which harmful effects occur necessarily renders a general
causation opinion to be unreliable and, thus, inadmissible.75
The Court concurs with the other sections of the court that have addressed this
issue and found Dr. Cook’s failure to address the level of harmful dosage of each
relevant chemical to be ultimately fatal to his report. At no point in his report does
Dr. Cook adequately identify what level of exposure to the chemicals present in the
oil is capable of producing the harmful health effects alleged by Plaintiff. Indeed, as
numerous Sections of this Court have pointed out, Dr. Cook does not even specify the
exact chemicals that Plaintiff was allegedly exposed to, let alone provide evidence
regarding the level of exposure at which Plaintiff’s symptoms might manifest.76
Dr. Cook attempts to establish a sufficient dose-response relationship
demonstrating the level of exposure to oil required to cause the complained-of

Allen, 102 F.3d at 199; accord McGill v. BP Expl. & Prod., Inc., 830 Fed. Appx. 430, 433 (5th Cir.
2020) (affirming exclusion of expert’s opinions where “none [of the studies on which the expert relied]
provide conclusive findings on what exposure level of Corexit is hazardous to humans.”).
74 Allen, 102 F.3d at 195; see also McGill, 830 Fed. Appx. at 433 n.1 (excluding expert testimony
where the studies relied upon by expert “did not address what level of exposure would be unsafe for
humans or what specific illnesses that exposure may cause.”) (emphasis added).
75 See Dawkins, 2022 WL 2315846, at *6 (“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.” (quoting Williams v. BP Expl. & Prod., Inc., No. 18-9753, 2019 WL 6615504,
at *8 (E.D. La. Dec. 5, 2019) (Morgan, J.)).
76 See, e.g., Dawkins, 2022 WL 2315846, at *7 (“[Dr. Cook] fails to even specify what constituent
chemicals within ‘crude oil’ and ‘weathered oil’ he is purportedly analyzing for a dose-response
relationship.”); Johns, 2022 WL 1811088, at *2 (“Yet, Cook’s report does not include any opinion about
a link between any specific chemical compound and any particular disease.”).
73

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symptoms at several points in his report. In Chapter 4, Dr. Cook provides multiple
Tables purporting to establish a relationship between exposure to oil and ill health.77
The data from the Tables themselves is taken from prior studies evaluating the
effects of oil exposure on responders to the Deepwater Horizon Gulf oil spill.78 The
Tables indicate a statistically significant relationship between oil exposure and the
onset of various health problems, including respiratory, neurological, dermal,
gastrointestinal, and genitourinary ailments.79 However, some of these Tables—and
the underlying studies—fail to demonstrate the level of exposure to the chemicals in
the oil at which these symptoms manifested. Rather, these studies instead concerned
themselves only with the binary question of whether or not the workers were exposed
to oil at all.80 This type of study is referred to as an “ever/never” study because the
participants are divided into two groups: those that were exposed to oil and those who
were not.81 Taking those studies at face value, the Court emphasizes that studies
indicating that health problems may arise from exposure to oil do not answer the
essential question of what level of exposure is necessary to cause the particular
symptoms.82 As such, the Court finds that these portions of Dr. Cook’s Report fail to
satisfy Fifth Circuit standards for reliability of expert reports.

R. Doc. 54-5 at pp. 46–60.
Id. at pp. 44–45. These studies specifically examined Coast Guard service members who were
responders in the Deepwater Horizon spill. See id.
79 See, e.g., id. at p. 46 (Table 4-1).
80 See, e.g., id. at p. 47 (Table 4-2) (comparing health conditions between responders with and without
oil exposure).
81 Id.; see also id. at p. 46 (“They compared of responders versus non-responders, and “ever” oil exposure
with “never” oil exposure among the responders.”).
82 See Dawkins, 2022 WL 2315846, at *8 (“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
77
78

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Other Tables in Dr. Cook’s Report, however, do provide greater detail on the
relationship between the level of exposure to oil and the prevalence of health effects.
For instance, Table 4-1 reports the prevalence ratio (“PR”) of certain health effects of
those who were exposed to oil and further breaks the data down into whether the
person had a low, medium, or high exposure.83 Briefly, the Report reflects that the
PR is the ratio comparing the prevalence of symptoms in those who were exposed to
the oil versus those who were not.84 Thus, a higher PR indicates a greater prevalence
of a particular health effect in an oil-exposed person as compared to a non-exposed
person.

Importantly, as Dr. Cook specifically notes, “prevalence ratios do show

associations, but not causation, because they do not account for when a disease began,
so it does not meet the temporal relationship criterion of causation.”85
Despite ostensibly indicating an association between a higher level of exposure
to oil and a greater prevalence of ill health effects, what the data still fails to show is
the level of exposure at which each of the complained of health problems manifest.
That there is some positive association between prevalence of health effects and the
level of exposure does not answer the antecedent—and necessary—question of what
particular dose is sufficient to cause the particular health effect. None of these
studies show what level of exposure to oil and dispersants is required for health
conditions, such as those complained of by Plaintiff, to appear. Accordingly, they too

of establishing by ‘[s]cientific knowledge . . . the harmful level of exposure to a chemical.’” (quoting
Seaman, 326 Fed. Appx. at 727)).
83 R. Doc. 54-5 at p. 46.
84 Id. at pp. 56–57.
85 Id. at p. 57 (emphasis added).

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are insufficient to satisfy Plaintiff’s burden to demonstrate a harmful level of
exposure.
Dr. Cook’s general causation opinions of specific health conditions found in
Chapter 5 of his Report suffer for many of the above reasons. As carefully explained
by another section of this court, many of the studies relied upon by Dr. Cook are
“silent on the level of exposure . . . that would be significant” to demonstrate a proper
dose-response relationship.86

In fact, many of the studies utilize the same

“ever/never” dichotomy which, for the reasons explained above, does not satisfy
Plaintiff’s burden to adequately establish a harmful level of exposure.87
The Court recognizes that mathematically precise figures detailing the exact
level of exposure at which physical conditions manifest may often be difficult or
impossible to ascertain.88

As Dr. Cook notes, “[t]he quantified dose is usually

unknown in epidemiology studies and can be very challenging to accurately measure
or estimate.”89 Nevertheless, for the above-discussed reasons, the Court finds that
Dr. Cook’s Report fails to adequately demonstrate the harmful dosage of the
particular chemicals found in the type of weathered oil and dispersants encountered
by Plaintiff.

See Dawkins, 2022 WL 2315846, at *8.
See, e.g., R. Doc. 54-5 at p. 74.
88 See Harrison, 2022 WL 2390733, at *6 (“While Courts ‘do not require a mathematically precise table
equating levels of exposure with levels of harm . . . there must be evidence from which a reasonable
person could conclude that a defendant’s emission has probably caused a particular plaintiff the kind
of harm of which he or she complains before there can be a recovery.’” (quoting Wright v. Willamette
Industries, Inc., 91 F.3d 1105, 1107 (8th Cir. 1996)).
89 R. Doc. 54-5 at p. 28.
86
87

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Plaintiff contends that Dr. Cook’s difficulty in utilizing harmful exposure level
data stems from Defendants’ intentional obstruction of researchers from collecting
data on oil cleanup workers.90 Without addressing the veracity of these allegations,
Plaintiff’s argument misses the mark because a general causation analysis does not
depend upon particular sampling taken from the incident in question. Rather, a
general causation expert is allowed to consult the entire universe of relevant
epidemiological studies to support their opinion.91 Dr. Cook, after all, “was not
prevented from consulting 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.”92 Accordingly, the
Court does not find that Dr. Cook is excused from providing the requisite doseresponse relationship data on account of Defendants’ alleged misdeeds.
Because the Court finds that Dr. Cook’s Report fails to demonstrate the
“minimal facts necessary to sustain the plaintiff’s burden in a toxic tort case,”93 i.e.,
the harmful exposure level, the Court does not find it necessary to address
Defendant’s other arguments as to why the Report should be excluded.94 Accordingly,

R. Doc. 66 at pp. 4–9.
Indeed, Dr. Cook himself utilized studies from different oil spills. R. Doc. 54-5 at pp. 33–35; see also
Heathington, 2022 WL 2986490, at *4 (“Notably, this inquiry does not depend upon environmental
sampling data taken as part of the incident.”).
92 Dawkins, 2022 WL 2315846, at *8.
93 Allen, 102 F.3d at 199.
94 R. Doc. 54-1 at pp. 7, 11–16. Although some sections have addressed multiple rationales for excluding
Dr. Cook’s Report, see, e.g., Novelozo, 2022 WL 1460103, others have relied solely upon Dr. Cook’s
failure to provide harmful exposure level data as grounds for exclusion, see, e.g., Johns, 2022 WL
1811088.
90
91

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the Court finds that Dr. Cook should be excluded from testifying as an expert on
general causation in this matter.
B. Motion for Summary Judgment
Dr. Cook’s Report is Plaintiff’s sole expert opinion on general causation.95
Because the Court finds it appropriate to exclude the Report for failure to comport
with the Daubert standards for reliability, Plaintiff accordingly lacks expert
testimony on general causation. Without expert testimony, which is required to prove
general causation,96 Plaintiff has failed to demonstrate a genuine dispute of material
fact as to his claims that his injuries were caused by exposure to oil. “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.”97

Thus,

Defendants’ Motion for Summary Judgment must be granted as Defendants are
entitled to judgment as a matter of law due to Plaintiff’s failure to establish causation.
Plaintiff’s further argument that both of Defendants’ Motions should be denied
because expert testimony is not necessary in a transient symptom case, such as here,
and Plaintiff’s lay testimony can establish his injuries conflates two separate issues,
general causation and specific causation. In support of this argument, Plaintiff cites
to orders from other sections of this court which have concluded that “temporary
physical irritant symptoms and mental anguish symptoms to be ‘within the common

Plaintiff’s other retained expert, Dr. Rachel Jones, does not address the issue of general causation
nor does she cure any of the problems contained within Dr. Cook’s Report.
96 Plaintiff does not dispute that expert testimony is required to establish general causation. See R.
Doc. 66 at p. 3; see also, e.g., Perkins v. BP Expl. & Prod., No. 17-4476, 2022 WL 972276, at *2 (E.D.
La. Mar. 31, 2022) (Milazzo, J.) (“In a toxic tort suit such as this one, the plaintiff must present
admissible expert testimony to establish general causation as well as specific causation.”).
97 Williams, 2019 WL 6615504, at *11.
95

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knowledge of lay people’ and for which expert testimony was not necessary to
establish causation.”98 The order relied on by Plaintiff very clearly states, “[b]ecause
BP, for purposes of this motion, does not contest Plaintiff’s general causation report
from Jerald Cook, M.D., (Rec. Doc. 28-2, at 3), the Court will only evaluate specific
causation.”99 Indeed, the final sentence of the Order concludes, “[t]herefore, Plaintiff
does not require an expert on specific causation for these particular medical
conditions.”100 The issue before this Court centers on the sufficiency of Plaintiff’s
general causation expert; thus, Plaintiff’s arguments on the necessity of expert
testimony to establish specific causation are dismissed as irrelevant and without
merit.

IV.

CONCLUSION

Accordingly,
IT IS HEREBY ORDERED that Defendants’ Daubert Motion to Exclude the
Causation Testimony of Plaintiff’s Expert, Dr. Jerald Cook101 is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment102 is GRANTED.

R. Doc. 66 at p. 18 (quoting Stephens v. BP (Civ. Action No. 17-4294), Turner v. BP (Civ. Action No.
17-4210); Wallace v. BP (Civil Action No. 13-1039)).
99 Stephens v. BP (Civ. Action No. 17-4294), R. Doc. 61 at n.2.
100 Id.
101 R. Doc. 54.
102 R. Doc. 55.
98

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IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants are
DISMISSED with prejudice.
New Orleans, Louisiana, September 27, 2022.

______________________________
WENDY B. VITTER
United States District Judge