Turner v. BP Exploration & Production, Inc. et al
Filing
73
ORDER AND REASONS granting 62 Motion in Limine; granting 63 Motion for Summary Judgment. IT IS FURTHER ORDERED that all claims of Plaintiff, Allen "Bradley" Turner, against Defendants, BP Exploration & Production Inc.; BP America Pr oduction Company; BP p.l.c.; Halliburton Energy Services, Inc.; Transocean Deepwater, Inc.; Transocean Holdings, LLC; and Transocean Offshore Deepwater Drilling, Inc., are DISMISSED with prejudice. IT IS FURTHER ORDERED that Defendants' Motions for Leave to File Reply (Rec. Docs. 71 & 72) are DENIED as moot.. Signed by Judge Carl Barbier on 6/29/22. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL DARNELL TURNER
CIVIL ACTION
VERSUS
NO: 17-4210
BP EXPLORATION &
PRODUCTION INC, ET AL.
SECTION: “J”(2)
ORDER & REASONS
Before the Court are two motions filed by Defendants, BP Exploration &
Production Inc., BP America Production Company, and BP p.l.c. (collectively “BP”): 1
a Daubert Motion to Exclude the General Causation Opinions of Plaintiff’s Expert, Dr.
Jerald Cook (Rec. Doc. 62) and a Motion for Summary Judgment (Rec. Doc. 63).
Plaintiff, Michael Darnell Turner, opposes both (Rec. Docs. 65 & 64, respectively).
Having considered the motions and legal memoranda, the record, and the applicable
law, the Court finds that both motions should be granted.
FACTS AND PROCEDURAL BACKGROUND
The instant action is a “B3” case arising out of the 2010 Deepwater Horizon
(“DWH”) oil spill in the Gulf of Mexico. B3 cases involve “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).” See In re Oil Spill by Oil Rig “Deepwater Horizon”
Halliburton Energy Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc. join in the Daubert Motion and Motion for Summary
Judgment.
1
1
in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D.
La. Apr. 1, 2021). These cases were originally part of a multidistrict litigation
(“MDL”) pending in this Court. During the course of the MDL proceedings, this Court
approved the Deepwater Horizon Medical Benefits Class Action Settlement
Agreement. Id. at *2. The B3 plaintiffs either opted out of the class action settlement
agreement or were excluded from its class definition. Id. at *10 n.3.
Plaintiff, Michael Darnell Turner, was employed in the DWH oil spill response
as a beach cleanup worker, picking up oil, tar balls, and oil-covered debris from
beaches as well as pressure washing booms in the areas of Gulf Shores, Theodore,
and Dauphin Island, Alabama for approximately nineteen months. This work, Turner
alleges, exposed him to crude oil and chemical dispersants which caused Plaintiff to
develop hypertension, acute renal insufficiency, chronic kidney disease stage III,
hematuria, nephrotic range proteinuria, chest pain, frontoparietal cerebrovascular
accident, stroke, headaches, blindness, obstructive sleep apnea, shortness of breath,
wheezing, depression, abdominal pain, diarrhea, nausea, vomiting, dizziness,
decreased sense of smell, facial pain or sinus pain, nasal congestion/discharge, throat
irritation, skin blistering, boils, skin dryness and flaking, inflammation, redness,
swelling, itching, peeling, and scaling. (Rec. Doc. 62-3).
In the case management order for the B3 bundle of cases, this Court noted that,
to prevail, “B3 plaintiffs must prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the response.” 2021 WL
6053613, at *11. The Court further observed that the issue of causation “will likely
2
be the make-or-break issue of many B3 cases,” which “will require an individualized
inquiry.” Id. Here, Turner relies on Dr. Jerald Cook to provide expert testimony as to
general causation. (Rec. Doc. 62-4). Dr. Cook is a retired Navy physician with a
master’s degree in environmental toxicology and a fellow of the American College of
Occupational and Environmental Medicine. (Id. at 5). He is board certified in
occupational medicine, public health, and general preventative medicine. (Id.). Dr.
Cook’s report is an omnibus, non-case specific general causation expert report that
has been used by many B3 plaintiffs. (Rec. Doc. 62-1, at 3). It mentions no plaintiff
by name, including Turner, and it does not address any specific plaintiff’s work on
the spill response or the nature, duration, or type of exposure any plaintiff had to any
particular toxin. See generally (Rec. Doc. 62-4). Further, in the report, Dr. Cook
evaluates four categories of injuries or disease to see whether they could be caused
by exposure to crude oil or dispersants. (Id.). Dr. Cook concluded that three of the
categories of injury – respiratory, dermal, and ocular – can result from exposure to
such. (Id.).
Now, BP has filed the instant Daubert Motion to Exclude the General
Causation Opinions of Dr. Cook and Motion for Summary Judgment premised on the
Court’s granting of BP’s Motion to Exclude. The Court will address each motion in
turn.
3
DAUBERT MOTION
I.
LEGAL STANDARD
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. Fed. R. Evid. 702. The
United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), provides the analytical framework for determining whether
expert testimony is admissible under Rule 702. Both scientific and nonscientific
expert testimony are subject to the Daubert framework, which requires trial courts
to make a preliminary assessment of “whether the expert testimony is both reliable
and relevant.” Burleson v. Tex. Dep't of Criminal Justice, 393 F.3d 577, 584 (5th Cir.
2004); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). When expert
testimony is challenged under Daubert, the party offering the expert’s testimony
bears the burden of proving its reliability and relevance by a preponderance of the
evidence. Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
The reliability of expert testimony “is determined by assessing whether the
reasoning or methodology underlying the testimony is scientifically valid.” Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007). A number of nonexclusive
factors may be relevant to the reliability analysis, including: (1) whether the
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technique at issue has been tested; (2) whether the technique has been subjected to
peer review and publication; (3) the 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, 393
F.3d at 584. The reliability inquiry must remain flexible, however, as “not every
Daubert factor will be applicable in every situation; and a court has discretion to
consider other factors it deems relevant.” Guy v. Crown Equip. Corp., 394 F.3d 320,
325 (5th Cir. 2004); see also Runnels v. Tex. Children's Hosp. Select Plan, 167 F. App'x
377, 381 (5th Cir. 2006) (“[A] trial judge has considerable leeway in determining how
to test an expert’s reliability.”).
II.
DISCUSSION
To begin, BP points out that two other Sections of this Court have excluded Dr.
Cook’s expert report in similar B3 cases. 2 (Rec. Doc. 62-1, at 1). BP argues that in
this case, the Court should exclude Dr. Cook’s opinions for the same reasons. (Id.).
Judge Africk identified four primary bases for which Dr. Cook’s general causation
opinions were unreliable, and Judge Ashe found that just one of these four reasons
was substantial on its own to permit exclusion, Dr. Cook’s failure to identify a
harmful dose of exposure necessary to cause the plaintiff’s specific medical condition. 3
Dr. Cook’s latest report, used in Judge Ashe’s cases and the ones presented to this Court, is allegedly
“substantially improved,” but BP contests this argument and finds the report is still unreliable and
inadmissible for the same reasons found in Judge Africk’s Order & Reasons.
3 See Novelozo v. BP Expl. & Prod., No. 13-1033, 2022 WL 1460103 (E.D. La. May 9, 2022) (Africk, J.);
and Murphy v. BP Expl. & Prod., No. 13-1031, 2022 WL 1460093 (E.D. La. May 9, 2022) (Africk, J.);
Johns v. BP Expl. & Prod. Inc., No. 17-3304, 2022 WL 1811088 (E.D. La. June 2, 2022) (Ashe, J.);
Johnson v. BP Expl. & Prod. Inc., No. 17-3308, 2022 WL 1811090 (E.D. La. June 2, 2022) (Ashe, J.);
Macon v. BP Expl. & Prod. Inc., No. 17-3548, 2022 WL 1811135 (E.D. La. June 2, 2022) (Ashe, J.);
2
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Specifically, Judge Ashe found that Dr. Cook had failed to identify a “particular
chemical” or the “level of exposure to any such chemical as would be necessary to
cause the specific symptoms . . . that is to say, the dose necessary to cause the reported
reaction.” Johns, 2022 WL 1811088, at *5. Here, the Court begins with the issue both
Judge Africk and Ashe determined merited exclusion of Dr. Cook’s expert testimony:
whether his report identifies a particular chemical or the level of exposure to any
such chemical as would be necessary to cause Turner’s specific adverse health
conditions.
“’Scientific knowledge of the harmful level of exposure to a chemical, plus
knowledge that the plaintiff was exposed to such quantities, are minimal facts
necessary to sustain the plaintiffs’ burden in a toxic tort case.” Allen v. Pa. Eng’g
Corp., 102 F.3d 194, 199 (5th Cir. 1996) (citing Wright v. Willamette Industries, Inc.,
91 F.3d 1105, 1107 (8th Cir. 1996)) (emphasis added). In a subsequent toxic tort case,
the Fifth Circuit, applying the above standard, held that an expert’s testimony “[d]id
not establish general causation” because the expert “provide[d] no clue regarding
what would be a harmful level of [chemical] exposure.” Seaman v. Seacor Marine, 326
F. App'x 721, 726 (5th Cir. 2009). Therefore, B3 Plaintiffs in these toxic tort cases
“must 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.”
Williams v. BP Expl. & Prod., No. 18-9753, 2019 WL 6615504, at *8 (E.D. La. Dec. 5,
2019) (citing Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007)).
Murray v. BP Expl. & Prod. Inc., No. 17-3582, 2022 WL 1811138 (E.D. La. June 2, 2022) (Ashe, J.);
Street v. BP Expl. & Prod. Inc., No. 17-3619, 2022 WL 1811144 (E.D. La. June 2, 2022) (Ashe, J.).
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Further, in a BELO case, 4 the Fifth Circuit upheld the exclusion of a plaintiff’s
expert because he “was unable to answer questions regarding how much time [the
plaintiff] spent scooping up oil, how, where, or in what quantity Corexit was used,
how exposure levels would change once substances were diluted in seawater, or how
[the plaintiff’s] protective equipment would affect exposure.” McGill v. BP Expl. &
Prod., Inc., 830 F. App’x 430, 433 (5th Cir. 2020). However, the court went on to
reason that the general causation expert need not determine the precise level of
exposure, but he must, at least, analyze the plaintiff’s probable exposure level. Id.
(citing Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999), and Clark v.
Kellogg Brown & Root, L.L.C., 414 F. App'x 623 (5th Cir. 2011) in which the experts
engaged in analysis of the plaintiff’s workspace to determine a probable exposure
level). Accordingly, here, to be reliable and, thus admissible, Dr. Cook’s report must,
at a minimum, analyze Turner’s probable level of exposure.
BP argues that Dr. Cook’s failure to identify the harmful level of exposure for
any chemical or any medical condition is the most fundamental deficiency. (Rec. Doc.
62-1, at 17). Because the law requires an expert to identify the harmful level of
exposure for each chemical and each condition, BP contends that this failure is
especially problematic because Dr. Cook is investigating multiple allegedly toxic
chemicals, and Turner is alleging multiple adverse health conditions. (Id. at 10–11).
“[B]oth BELO plaintiffs and 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 . . . [n]otably, experience has
shown that causation is a critical element—if not the critical element—in BELO cases, and therefore
will likely be the make-or-break issue for many B3 cases as well. Additionally, the issue of causation
in these toxic tort cases will require an individualized inquiry.” 2021 WL 6053613, at *11.
4
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Judge Ashe, in his recent opinions, emphasized that Dr. Cook’s report failed to
include even a single mention of a specific chemical. See, e.g., Johns, 2022 WL
1811088, at *5. Instead, Judge Ashe found that Dr. Cook’s report “refers generally to
oil, dispersants, and volatile organic compounds,” and he “never identifies any
particular chemical to which [the plaintiff] was exposed, much less the level of
exposure to any such chemical as would be necessary to cause the specific symptoms
of which [the plaintiff] complains – that is to say, the dose necessary to cause the
reported reaction.” Id. Because Plaintiff used the same report by Dr. Cook here, Dr.
Cook’s report fails to identify a single specific chemical.
Turner admits that “Judge Ashe’s conclusion is factually correct in that Dr.
Cook did not rely on quantitative exposure data in reaching his general causation
opinions.” (Rec. Doc. 65, at 2). Turner explains that the plaintiffs in Judge Ashe’s
cases “could have done a much better job of articulating for Judge Ashe that Dr. Cook
did not utilize a quantitative ‘dose’ because the current, peer reviewed and published
epidemiological literature on BP spill workers and on which Dr. Cook relies does not
employ the traditional Bradford Hill ‘dose-response’ criteria.” (Id.). In an attempt to
articulate better than past plaintiffs why Dr. Cook does not identify quantitative
exposure data in his report, Turner contends that Dr. Cook and the scientific
community use measurement/ effect criteria like the “exposure-response,” “ever/never
exposed,” and “job exposure matrix” because BP avoided or prevented the recording
of exposure and dose data. (Id.). Turner argues that Dr. Cook’s failure to identify a
particular chemical or the level of exposure to any such chemical as would be
8
necessary to cause the specific symptoms is not a bar to finding that his methodology
is proper and reliable under Daubert. (Id.). However, while this argument may work
in response to BP’s contention that Dr. Cook did not follow the proper methodology,
it does prevail in response to BP’s assertion that Dr. Cook does not identify the
harmful level of exposure for any chemical or any medical condition. As the Fifth
Circuit has held, identification of the harmful level of exposure to a chemical is one
of the “minimal facts necessary to sustain the plaintiff’s burden in a toxic tort case.”
Allen, 102 F.3d at 199.
Turner argues that the reason neither he nor any other plaintiff can present
this specific quantitative data is due to BP’s failure to act during the spill to preserve
evidence of the workers’ actual total exposure to specific chemicals in the weathered
oil. (Rec. Doc. 65-17, at 1). In reply, BP asserts that Turner’s argument misses the
mark because the general causation analysis “permits the expert to consult the
universe of epidemiological and toxicological literature that has studied the
constituents at issue,” and “[i]t does not depend upon environmental sampling data
taken as part of the incident.” (Rec. Doc. 62-1, at 10). “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.” Knight, 482 F.3d at 35. Therefore, the fundamental question in
this general causation inquiry is whether the chemicals, weathered oil, and
dispersants to which Turner alleges he was exposed can cause the conditions he
alleges. Dr. Cook’s report fails to identify a single chemical and, instead, refers
9
generally to oil, dispersants, and volatile organic compounds. Moreover, even if Dr.
Cook’s report were to identify a specific chemical present in the crude oil, weathered
crude oil, or dispersants, his report fails to establish a harmful level of any chemical
to the general population. Thus, Dr. Cook’s report fails to satisfy Fifth Circuit’s
minimal fact required: scientific knowledge of the harmful level of exposure to a
chemical. As Dr. Cook even points out himself, “[t]here is a toxicology maxim that the
dose determines the poison.” (Rec. Doc. 62-4, at 27). Yet, Dr. Cook fails to identify the
dose of any such chemical that would result in the adverse health effects contained
in his report, and his report is therefore unreliable and inadmissible.
Next, as a last-ditch attempt to save his case, Turner appears to make a
spoliation argument despite stating in a footnote, “[w]hile not relevant for this
motion, Plaintiffs inform the Court that they will be filing spoliation-related motions.”
(Rec. Doc. 65, at 2 n.3). However, the Court finds that spoliation is relevant to
Turner’s argument in this motion so will address it now.
“Spoliation is the destruction or the significant and meaningful alteration of
evidence.” United States v. E.R.R. LLC, No. 19-2340, 2020 WL 4732218, at *3 (E.D.
La. Aug. 14, 2020). Spoliation also includes “the failure to preserve property for
another’s use in pending or reasonably foreseeable litigation.” Ashton v. Knight
Transp., Inc., 772 F. Supp. 2d 772, 799 (N.D. Tex. 2011) (quoting Silvestri v. Gen.
Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). However, destroying, altering, or
failing to preserve does not necessarily mean that the party has engaged in sanctionworthy spoliation because “[a] spoliation claim has three elements: (1) the spoliating
10
party must have controlled the evidence and been under an obligation to preserve it
at the time of destruction; (2) the evidence must have been intentionally destroyed;
and (3) the moving party must show that the spoliating party acted in bad faith.”
Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 574 (5th Cir. 2020). In
the Fifth Circuit, “an adverse inference against the spoliator or sanctions against the
spoliator [is permitted] only upon a showing of ‘bad faith’ or ‘bad conduct.’” Guzman
v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) (citing Condrey v. SunTrust Bank of Ga.,
431 F.3d 191, 203 (5th Cir. 2005)).
Turner argues that BP had a duty to take and preserve dermal monitoring and
biomonitoring of oil spill response workers in addition to the air monitoring conducted
by BP. (Rec. Doc. 65-17, at 2). Assuming, arguendo, that BP had a duty to preserve
results of dermal and biological monitoring of the oil spill response workers, Plaintiff
must additionally prove that BP acted in bad faith when it failed to do so. “Bad faith,
in the context of spoliation, generally means destruction for the purpose of hiding
adverse evidence.” Guzman, 804 F.3d at 713 (citations omitted). In Consolidated
Aluminum Corp. v. Alcoa, Inc., the court explained, “[f]or the spoliator to have a
‘culpable state of mind,’ it must act with fraudulent intent and a desire to suppress
the truth.” 244 F.R.D. 335, 344 (M.D. La. 2006). Additionally, in Tammany Parish
Hospital Service District No. 1 v. Travelers Property Casualty Co. of America, the
court found that “[t]he theory of spoliation of evidence refers to an intentional
destruction of evidence for [the] purpose of depriving opposing parties of its use.” 250
11
F.R.D. 275, 277 (E.D. La. 2008) (citations omitted). Moreover, in Thomas v.
Tangipahoa Parish School Board, the court explained:
The Fifth Circuit has not further defined “bad faith” in the spoliation
context, but has defined it under Louisiana law as
[t]he opposite of “good faith,” generally implying or involving actual or
constructive fraud, or a design to mislead and deceive another, or a
neglect or refusal to fulfill some duty or some contractual obligation, not
prompted by an honest mistake as to one's rights or duties but by some
interested or sinister motive. The term bad faith means more than mere
bad judgment or negligence, it implies the conscious doing of a wrong for
dishonest or morally questionable motives.
No. 14-2814, 2016 WL 3542286, at *2 (E.D. La. June 29, 2016) (quoting Industrias
Magromer Cuerosy Pieles S.A. v. Louisiana, 293 F.3d 912, 922 (5th Cir. 2002)).
The question before this Court is whether BP acted with fraudulent intent
when it did not take dermal and biomonitoring of the oil spill response workers for
the purpose of suppressing the truth and depriving opposing parties of its use. Turner
argues that BP’s actions, or inactions, show that BP intentionally failed to act during
the oil spill cleanup to preserve evidence of the workers’ actual total exposure to
specific chemicals in the weather oil. (Rec. Doc. 65-17, at 1). Turner contends that BP
knew that dermal monitoring and biomonitoring of the workers was needed, but it
did nothing to act on that need. (Id. at 1–2). Instead, Turner asserts, BP continued to
conduct only monitoring for airborne hazards to the workers. (Id. at 2). To support
this argument, Turner cites to various emails. (Id.). First, Turner cites to a July 2,
2010 email from National Institute of Occupational Safety and Health (“NIOSH”)
Deputy Director Kitt to Dr. Richard Heron, BP’s Health/Medical Lead for the BP spill
response. (Rec. Doc. 65-19, at 2–3). Within this email, NIOSH details their plan to
12
extend response worker exposure and quantification by incorporating biomonitoring
“as part of the expanded [health hazard evaluation (“HHE”)] efforts BP has asked
NIOSH to do.” (Id. at 3). NIOSH states that it is developing protocols to use as a path
forward with biomonitoring that it will share with BP once the draft is complete. (Id.).
After detailing the proposed protocols, NIOSH states that it will need the
support of BP to meet implementation hurdles and asks for BP’s thoughts. (Id.). Dr.
Heron then forwards this email to BP’s Health Safety, and Environment (“HSE”)
Technical Team with the request that they submit their comments on the proposed
protocol, but he asks them not to circulate it. (Id. at 1). Turner contends that Dr.
Heron’s asking the HSE Team not to circulate the proposed protocol shows that BP
acted in bad faith. (Rec. Doc. 65-17, at 3). However, at BP’s Rule 30(b)(6) deposition,
BP’s representative, Dr. Dutton stated that NIOSH ended up not conducting this
proposed biomonitoring of spill response workers, but he did not know why. (Rec. Doc.
65-18, at 112). In fact, in his deposition, Dr. Dutton states that BP asked NIOSH to
come in and conduct HHE’s, but “for whatever reason, NIOSH [ ] decided not to
expand the HHE’s by doing the biomonitoring. You’d have to ask them. I don’t know
why.” (Id. at 117). Dr. Dutton testified that the “support” NIOSH was looking for from
BP was logistical support. (Id. at 119). Specifically, BP’s “primary role through the
HHE process was providing logistical support to HHE members [such as access to the
site, transportation, and sleeping arrangements]. We did not tell them what to
sample for or how to sample it . . . or how to analyze it.” (Id.). While perhaps BP could
have done more to conduct dermal monitoring and biomonitoring, the Court finds
13
that Turner has not met his burden to show that BP acted with a culpable state of
mind to suppress the truth and deprive future parties of this data.
MOTION FOR SUMMARY JUDGMENT
I.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56); see Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
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 merely 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
14
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 trial. See id. at 325; Little, 37 F.3d at 1075.
II.
DISCUSSION
As in the cases decided by both Judge Africk and Judge Ashe, cited above,
because Dr. Cook’s general causation opinions are excluded, Defendants are entitled
to summary judgment dismissing Turner’s claims. Turner has no other medical
expert for general causation, and expert testimony is required. Therefore, Turner has
failed to create a genuine issue of material fact with respect to his claims that his
injuries were caused by exposure to oil and dispersants.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Exclude the
Causation Opinion of Plaintiff’s Expert, Dr. Jerald Cook (Rec. Doc. 62) is GRANTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment (Rec. Doc. 62) is GRANTED.
IT IS FURTHER ORDERED that all claims of Plaintiff, Allen “Bradley”
Turner, against Defendants, BP Exploration & Production Inc.; BP America
Production Company; BP p.l.c.; Halliburton Energy Services, Inc.; Transocean
Deepwater, Inc.; Transocean Holdings, LLC; and Transocean Offshore Deepwater
Drilling, Inc., are DISMISSED with prejudice.
15
IT IS FURTHER ORDERED that Defendants’ Motions for Leave to File
Reply (Rec. Docs. 71 & 72) are DENIED as moot.
New Orleans, Louisiana, this 29th day of June, 2022.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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