Castleberry et al v. BP Exploration & Production, Inc. et al
ORDER AND REASONS Before the Court is BP's Daubert Motion to Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald Cook 59 filed by Defendants BP Exploration & Production Inc., BP America Production Company, and BP p.l.c. a s well as Defendants' Motion for Summary Judgment 60 . IT IS HEREBY ORDERED that Defendants' Daubert Motion to Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald Cook is GRANTED. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiffs' claims against Defendants are DISMISSED with prejudice. Signed by Judge Wendy B Vitter on 1/17/23. (cg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACQUELINE CASTLEBERRY, ET AL.
BP EXPLORATION & PRODUCTION,
INC., ET AL.
SECTION: D (1)
ORDER & REASONS
Before the Court is BP’s Daubert Motion to Exclude the Causation Testimony
of Plaintiffs’ Expert, Dr. Jerald Cook1 filed by Defendants BP Exploration &
Production Inc., BP America Production Company, and BP p.l.c. as well as
Defendants’ Motion for Summary Judgment.2
Halliburton Energy Services, Inc.,
Transocean Holdings, LLC, Transocean Deepwater, Inc., and Transocean Offshore
Deepwater Drilling, Inc. (collectively “Defendants”) have joined in both motions.3
Plaintiffs Jacqueline Castleberry and Jancey Castleberry-Fort, individually and on
behalf of her minor child, JJC, (“Plaintiffs”) oppose both Motions.4 Defendants have
filed Replies in support of their Motions and Plaintiffs have filed a Supplemental
Memorandum in Opposition to BP’s Daubert Motion to Exclude the Causation
Testimony of Plaintiffs’ Expert, Dr. Jerald Cook.5
After careful consideration of the parties’ memoranda, the record, and the
applicable law, the Defendants’ Motions are GRANTED.
R. Doc. 59.
R. Doc. 60.
3 See R. Doc. 59 n.1; R. Doc. 60 n.1.
4 R. Doc. 61; R. Doc. 62.
5 Defendants’ Replies, R. Doc. 71 and R. Doc. 72. Plaintiff’s Supplemental Memorandum, R. Doc. 76.
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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
litigation arising out of the Deepwater Horizon incident, approved the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).6
However, certain individuals, referred to as “B3” plaintiffs, either opted out of or were
excluded from the MSA.7 Plaintiffs opted out of the MSA and, accordingly, are B3
Plaintiffs filed this individual action against Defendants on April 28, 2017 to
recover for injuries allegedly sustained as a result of the oil spill.9 For approximately
nine months in 2010 and 2011, Plaintiff Jacqueline Castleberry worked as a cleanup
worker, tasked with cleaning up oil and oil-covered debris from the beaches and
coastal areas in and around Dauphin Island and Bayou La Batre, Alabama.10
Plaintiff Jancey Castleberry-Fort alleges that she, and her minor child, JJC, were
exposed to oil and dispersants for nine months when picking up her mother,
Jacqueline Castleberry, from work in Bayou La Batre, Alabama.11 Plaintiffs allege
that Defendants’ negligence and recklessness in both causing the Gulf oil spill and
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.).
7 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).
8 R. Doc. 1 at ¶ 5.
10 R. Doc. 59-2 at p. 5.
11 R. Doc. 59-3; R. Doc. 59-4.
Case 2:17-cv-04154-WBV-JVM Document 77 Filed 01/17/23 Page 3 of 11
subsequently failing to properly design and implement a clean-up response caused
them to suffer myriad injuries including abdominal cramps, abdominal pains,
diarrhea, dizziness, headaches, eye burning, eye irritation, sinus or facial pain, nasal
congestion, nasal discharge, throat irritation, chronic sinusitis, shortness of breath,
wheezing, URI, skin itching, blurry vision, eye irritation, pleurisy, acute wheezy
bronchitis, asthma, coughing, acute costochondritis, nausea, vomiting, skin rashes,
allergic rhinitis, and anemia.12
Specifically, Plaintiffs seek 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,
To help support their claims that exposure to the chemicals present in the oil
spilled by Defendants caused their particular health symptoms, Plaintiffs offer the
report (“Report”) and testimony of Dr. Jerald Cook.14 Dr. Cook is a retired Navy
physician with expertise specifically as an occupational and environmental
physician.15 Dr. Cook’s Report is not tailored directly to Plaintiffs’ 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
See R. Doc. 59-5; R. Doc. 59-6; R. Doc. 59-7.
R. Doc. 1 at pp. 5–6.
14 R. Doc. 59-8.
15 Id. at p. 8.
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other sections of this court.16 Accordingly, Dr. Cook’s Report pertains only to general
causation and not to specific causation.17
Defendants filed the instant Motion in limine and Motion for Summary
Judgment on September 19, 2022. In their Motion in limine, Defendants contend
that Dr. Cook should be excluded from testifying due to, inter alia, Dr. Cook’s failure
to identify the harmful level of exposure capable of causing Plaintiffs’ particular
injuries for each chemical that Plaintiffs allege to have been exposed to. Because Dr.
Cook should be excluded from testifying, Defendants argue, the Court should grant
their Motion for Summary Judgment as Plaintiffs are unable to establish general
causation through expert testimony, a necessary requirement under controlling
Circuit precedent. Plaintiffs oppose both Motions, arguing that Dr. Cook’s Report
satisfies the Daubert standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
A. Motion in Limine
The district court has considerable discretion to admit or exclude expert
testimony under Fed. R. Evid. 702,18 and the burden rests with the party seeking to
present the testimony to show that the requirements of Rule 702 are met.19 Rule 702
See 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.”).
17 R. Doc. 62 at p. 4 (“[P]laintiffs had Dr. Cook prepare a report with his general causation opinions[.]”).
18 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); Tajonera v. Black Elk Energy Offshore Operations, LLC, Civ. A. No. 130366 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).
19 Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
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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
(d) The expert has reliably applied the principles and methods
to the facts of the case.20
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.21 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”22 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.23 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.24
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
Fed. R. Evid. 702; Tajonera, 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)).
22 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)).
23 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
24 Tajonera, 2016 WL 3180776, at *8 (citing Daubert, 509 U.S. at 590).
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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.”25 To prove reliability, the proponent of the expert testimony must
present some objective, independent validation of the expert’s methodology.26 The
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.”27
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.”28 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.”29 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.” 30 Instead,
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
26 Recif Res., LLC, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536
(5th Cir. 2013)).
27 Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hodges v. Mack Trucks Inc., 474 F.3d 188,
194 (5th Cir. 2006).
28 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).
29 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
30 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
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summary judgment is appropriate if a reasonable jury could not return a verdict for
the nonmoving party.31
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.”32 The
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.”33 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.34 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.’”35
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
Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson, 477 U.S. at 248).
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
33 Id. at 1265.
34 See Celotex, 477 U.S. at 322–23.
35 Id. at 324 (quoting Fed. R. Civ. P. 56(e)).
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response.”36 To prove causation, the B3 plaintiffs are required to provide reliable
expert testimony.37 “A plaintiff in such a case cannot expect lay fact-finders to
understand medical causation; expert testimony is thus required to establish
Courts use “a two-step process in examining the admissibility of causation
evidence in toxic tort cases.”39
First, a court must determine whether general
causation exists.40 “General causation is whether a substance is capable of causing a
particular injury or condition in the general population.”41 Second, if the court finds
that there is admissible general-causation evidence, “the district court must
determine whether there is admissible specific-causation evidence.”42
causation is whether a substance caused a particular individual’s injury.” 43 If the
court finds that there is no admissible general causation evidence, it need not
consider the issue of specific causation.44
To establish general causation, a causation expert must identify “the harmful
level of exposure to a chemical” at which physical symptoms manifest.45 As explained
by Dr. Cook, nearly every chemical on Earth may be toxic or even fatal at a certain
In re Oil Spill, 2021 WL 6053613, at *11.
See, e.g., Seaman v. Seacor Marine, LLC, 326 Fed. Appx. 721, 723 (5th Cir. 2009).
38 Id. (citing Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).
39 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007).
41 Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)).
44 Id. (“Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to
admissible general-causation evidence.”).
45 Allen, 102 F.3d at 199.
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level of exposure.46 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, dosis sola facit venenum, or “the dose determines the poison.”47 This analysis
is also referred to in the Bradford Hill factors as the dose-response relationship.48
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.” 49 Relatedly, the Fifth
Circuit states that this detail is one of the “minimal facts necessary to sustain the
plaintiff’s burden in a toxic tort case.”50 Plaintiffs must provide reliable expert
testimony establishing the requisite level of exposure necessary to cause each alleged
physical harm.51 Accordingly, failure to properly identify the level of exposure to a
R. Doc. 59-8 at p. 32; 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.”).
47 R. Doc. 59-8 at p. 32. Such knowledge dates back to at least the time of Paracelsus, the great
sixteenth-century Swiss philosopher and scientist, who remarked that “[s]olely the dose determines
that a thing is not a poison.” See Joseph Borzelleca, Paracelsus: Herald of Modern Toxicology, 53
Toxicological Scis. 2, 4 (1999).
48 R. Doc. 59-8 at p. 32.
49 R. Doc. 59-11 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.
50 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.”).
51 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).
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particular chemical at which harmful effects occur necessarily renders a general
causation opinion unreliable and, thus, inadmissible.52
This Court has previously considered the June 21, 2022 version of Dr. Cook’s
Report offered here by Plaintiffs, finding that the Report fails to meet the Daubert
standards for reliability and helpfulness to the trier of fact.53 For the same reasons
set forth in detail in that Order and Reasons, the Court determines that Plaintiffs
have failed in their burden of establishing the reliability and relevance of their
expert’s report and finds it appropriate to grant Defendants’ Motion in limine to
exclude Dr. Cook’s Report. Plaintiffs accordingly lack expert testimony on general
causation. Without expert testimony, which is required to prove general causation,54
Plaintiffs have failed to demonstrate a genuine dispute of material fact regarding
their claims that their 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.”55 Thus, Defendants’ Motion
for Summary Judgment must be granted as Defendants are entitled to judgment as
a matter of law due to Plaintiffs’ failure to establish general causation.
See Dawkins v. BP Expl. & Prod., Inc., No. CV 17-3533, 2022 WL 2315846, at *6 (E.D. La. June 28,
2022) (Vance, J.), reconsideration denied, No. CV 17-3533, 2022 WL 4355818 (E.D. La. Sept. 20, 2022)
(“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.)).
53 See Kaoui v. BP Expl. & Prod., Inc., No. CV 17-3313, R. Doc. 68 (E.D. La. Jan. 12, 2023) (Vitter, J.).
54 See, 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.”).
55 Williams, 2019 WL 6615504, at *11.
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IT IS HEREBY ORDERED that Defendants’ Daubert Motion to Exclude the
Causation Testimony of Plaintiffs’ Expert, Dr. Jerald Cook56 is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment57 is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ claims against Defendants are
DISMISSED with prejudice.
New Orleans, Louisiana, January 17, 2023.
WENDY B. VITTER
United States District Judge
R. Doc. 59.
R. Doc. 60.
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