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

Filing 72

ORDER AND REASONS: Before the Court is BP's Daubert Motion to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by Defendants BP Exploration & Production Inc., BP America Production Company, and BP p.l.c. as well as Defendants' Motion for Summary Judgment. IT IS HEREBY ORDERED that Defendants' Daubert Motion to Exclude the Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook 53 is GRANTED. IT IS FURTHER ORDERED that Plaintiff 's Motion for Admission of Plaintiffs' [sic] Expert Opinions Because of BP Defendants' Spoliation of Evidence of Plaintiff's Exposure is DENIED. IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment 54 is GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against Defendants are DISMISSED with prejudice. Signed by Judge Wendy B Vitter on 1/23/23. (cg)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELIZABETH STEWART

CIVIL ACTION

VERSUS

NO. 17-4299

BP EXPLORATION & PRODUCTION,
INC., ET AL.

SECTION: D (4)

ORDER & REASONS
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, 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
Plaintiff Elizabeth Stewart (“Plaintiff”) opposes both Motions.4 Defendants have filed
Replies in support of their Motions and Plaintiff has filed a Supplemental
Memorandum in Opposition to BP’s Daubert Motion to Exclude the Causation
Testimony of Plaintiffs’ [sic] Expert, Dr. Jerald Cook.5
Also before the Court is a Motion for Admission of Plaintiffs’ [sic] Expert
Opinions Because of BP Defendants’ Spoliation of Evidence of Plaintiff’s Exposure,
filed by the Plaintiff.6 Defendants oppose this Motion.7

R. Doc. 53.
R. Doc. 54.
3 See R. Doc. 53 n.1; R. Doc. 54 n.1.
4 R. Doc. 57; R. Doc. 58.
5 Defendants’ Replies, R. Doc. 64 and R. Doc. 65. Plaintiff’s Supplemental Memorandum, R. Doc. 71.
6 R. Doc. 60.
7 R. Doc. 67.
1
2

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After careful consideration of the parties’ memoranda, the record, and the
applicable law, BP’s Daubert Motion to Exclude the Causation Testimony of
Plaintiff’s Expert, Dr. Jerald Cook and Defendants’ Motion for Summary Judgment
are GRANTED, and Plaintiff’s Motion for Admission of Plaintiffs’ [sic] Expert
Opinions Because of BP Defendants’ Spoliation of Evidence of Plaintiff’s Exposure is
DENIED.
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
litigation arising out of the Deepwater Horizon incident, approved the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (the “MSA”).8
However, certain individuals, referred to as “B3” plaintiffs, either opted out of or were
excluded from the MSA.9 Plaintiff Elizabeth Stewart opted out of the MSA and,
accordingly, is a B3 plaintiff.10
Plaintiff filed this individual action against Defendants on April 29, 2017 to
recover for injuries allegedly sustained as a result of the oil spill.11 For approximately
four months in 2010, Plaintiff worked as a beach cleanup worker, tasked with
cleaning up oil and oil-covered debris from the beaches and coastal areas near

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.).
9 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).
10 R. Doc. 1 at ¶ 5.
11 Id.
8

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Pascagoula, Mississippi.12

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 her to suffer myriad injuries
including sinus issues, nasal congestion, nose bleeds, nasal discharge, decreased
sense of smell, epistaxis, upper respiratory infection, cardiovascular issues, edema,
fatigue, high blood pressure, dermal issues, skin flaking, chronic anemia, headaches,
mental issues, memory loss, neurological issues, burning and numbness in back and
legs, and hyperparasthesia.13

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.14
To help support her claims that exposure to the chemicals present in the oil
spilled by Defendants caused her particular health symptoms, Plaintiff offers the
report (“Report”) and testimony of Dr. Jerald Cook.15 Dr. Cook is a retired Navy
physician with expertise specifically as an occupational and environmental
physician.16 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

R. Doc. 53-2 at p. 5.
See R. Doc. 53-3.
14 R. Doc. 1 at pp. 5–6.
15 R. Doc. 53-4.
16 Id. at p. 8.
12
13

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other sections of this court.17 Accordingly, Dr. Cook’s Report pertains only to general
causation and not to specific causation.
Defendants filed the instant Motion in limine and Motion for Summary
Judgment on October 3, 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 Plaintiff’s particular injuries
for each chemical that Plaintiff alleges 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 Plaintiff is unable to establish general causation
through expert testimony, a necessary requirement under controlling Circuit
precedent.
In response, Plaintiff filed a Motion for Admission of Plaintiffs’ [sic] Expert
Opinions Because of BP Defendants’ Spoliation of Evidence of Plaintiff’s Exposure, in
which Plaintiff argues that Dr. Cook’s Report and general causation opinions should
be deemed reliable and admissible under Fed. R. Evid. 702 because of BP’s alleged
failure to collect exposure data on oil spill cleanup workers.18 Plaintiff argues that
BP had an obligation to preserve evidence that it reasonably anticipated may have
been relevant to future litigation and that BP intentionally destroyed said evidence
in bad faith.19

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.”).
18 R. Doc. 60. In her response to Defendants’ Motion for Summary Judgment and Motion in limine,
Plaintiff adopted the arguments set forth in her spoliation Motion. See R. Doc. 57; R. Doc. 58.
19 R. Doc. 60-1 at pp. 20–24.
17

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Defendants filed a response in opposition to Plaintiff’s spoliation Motion,
arguing that Plaintiff cannot demonstrate spoliation of evidence because there never
was evidence to spoliate in the first place.20 Defendants also contend that the issue
of biological monitoring of cleanup workers is irrelevant to the reliability and
admissibility of Dr. Cook’s Report.21 Finally, Defendants argue that the remedy
sought by Plaintiff—admission of Dr. Cook’s Report—is inappropriate and without
basis.22
II.

LEGAL STANDARD

A. Motion in Limine
The district court has considerable discretion to admit or exclude expert
testimony under Fed. R. Evid. 702,23 and the burden rests with the party seeking to
present the testimony to show that the requirements of Rule 702 are met.24 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

See R. Doc. 67 at pp. 13–14.
See id. at pp. 22–25.
22 See id.
23 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).
24 Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
20
21

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(d) The expert has reliably applied the principles and methods
to the facts of the case.25
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.26 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”27 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.28 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.29
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.”30 To prove reliability, the proponent of the expert testimony must
present some objective, independent validation of the expert’s methodology.31 The

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)).
27 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)).
28 Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
29 Tajonera, 2016 WL 3180776, at *8 (citing Daubert, 509 U.S. at 590).
30 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).
31 Recif Res., LLC, 2020 WL 5623982, at *2 (citing Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536
(5th Cir. 2013)).
25
26

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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.”32
B. Spoliation of Evidence
Spoliation is the destruction or serious and material alteration of evidence,
including “the failure to preserve property for another’s use as evidence in pending
or reasonably foreseeable litigation.”33 A court may sanction a party for spoliation
evidence under the court’s inherent sanction power.34
There are three elements to a claim for spoliation: “(1) the spoliating 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.”35 “A
plaintiff alleging spoliation must establish that the defendant intentionally destroyed
the evidence for the purpose of depriving opposing parties of its use.” 36 Although
parties have a duty to preserve evidence, that duty “does not include the duty to
create evidence.”37

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hodges v. Mack Trucks Inc., 474 F.3d 188,
194 (5th Cir. 2006).
33 Fairley v. BP Expl. & Prod. Inc., No. CV 17-3988, 2022 WL 16731817, at *3 (E.D. La. Nov. 3, 2022)
(Ashe, J.) (quoting Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 799 (N.D. Tex. 2011)).
34 See Coastal Bridge Co., LLC v. Heatec, Inc., 833 Fed. Appx. 565, 573 (5th Cir. 2020).
35 Id. at 574 (citing Port of S. La. v. Tri-Parish Indus., 927 F. Supp. 2d 332, 346 (E.D. La. 2013)).
36 Id. at 574 (citing Catoire v. Caprock Telecommunications Corp., No. 01-3577, 2002 WL 31729484, at
*1 (E.D. La. Dec. 2, 2002)).
37 Fairley, 2022 WL 16731817, at *3 (quoting De Los Santos v. Kroger Tex., LP, No. 14-3086, 2015 WL
3504878, at *6 n.4 (N.D. Tex. June 3, 2015)) (further citations omitted).
32

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C. 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.”38 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.”39 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.” 40 Instead,
summary judgment is appropriate if a reasonable jury could not return a verdict for
the nonmoving party.41
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.”42 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.”43 If, however,

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).
39 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008)
(citations omitted).
40 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
41 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson, 477 U.S. at 248).
42 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264–65 (5th Cir. 1991).
43 Id. at 1265.
38

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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.44 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.’”45
III.

ANALYSIS

A. Motion in limine
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.”46 To prove causation, the B3 plaintiffs are required to provide reliable
expert testimony.47 “A plaintiff in such a case cannot expect lay fact-finders to
understand medical causation; expert testimony is thus required to establish
causation.”48
Courts use “a two-step process in examining the admissibility of causation
evidence in toxic tort cases.”49

First, a court must determine whether general

causation exists.50 “General causation is whether a substance is capable of causing a

See Celotex, 477 U.S. at 322–23.
Id. at 324 (quoting Fed. R. Civ. P. 56(e)).
46 In re Oil Spill, 2021 WL 6053613, at *11.
47 See, e.g., Seaman v. Seacor Marine, LLC, 326 Fed. Appx. 721, 723 (5th Cir. 2009).
48 Id. (citing Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).
49 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007).
50 Id.
44
45

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particular injury or condition in the general population.”51 Second, if the court finds
that there is admissible general-causation evidence, “the district court must
determine whether there is admissible specific-causation evidence.”52

“[S]pecific

causation is whether a substance caused a particular individual’s injury.”53 If the
court finds that there is no admissible general causation evidence, it need not
consider the issue of specific causation.54
To establish general causation, a causation expert must identify “the harmful
level of exposure to a chemical” at which physical symptoms manifest.55 As explained
by Dr. Cook, nearly every chemical on Earth may be toxic or even fatal at a certain
level of exposure.56 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.”57 This analysis
is also referred to in the Bradford Hill factors as the dose-response relationship.58
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

Id. (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)).
Id.
53 Id.
54 Id. (“Evidence concerning specific causation in toxic tort cases is admissible only as a follow-up to
admissible general-causation evidence.”).
55 Allen, 102 F.3d at 199.
56 R. Doc. 53-4 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.”).
57 R. Doc. 53-4 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).
58 R. Doc. 53-4 at p. 32.
51
52

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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.” 59 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.”60 Plaintiffs must provide reliable expert
testimony establishing the requisite level of exposure necessary to cause each alleged
physical harm.61 Accordingly, failure to properly identify the level of exposure to a
particular chemical at which harmful effects occur necessarily renders a general
causation opinion unreliable and, thus, inadmissible.62
This Court has previously considered the June 21, 2022 version of Dr. Cook’s
Report offered here by Plaintiff, finding that the Report fails to meet the Daubert
standards for reliability and helpfulness to the trier of fact.63 For the same reasons
set forth in detail in that Order and Reasons, the Court determines that Plaintiff has
failed in her burden of establishing the reliability and relevance of her expert’s report

R. Doc. 53-7 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.
60 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.”).
61 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).
62 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.)).
63 See Kaoui v. BP Expl. & Prod., Inc., No. CV 17-3313, R. Doc. 68 (E.D. La. Jan. 12, 2023) (Vitter, J.).
59

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and finds it appropriate to grant Defendants’ Motion in limine to exclude Dr. Cook’s
Report.
B. Spoliation Motion
Plaintiff has filed a motion arguing that the Court should find Dr. Cook’s
opinions admissible because of Defendants’ alleged spoliation of evidence.64 Plaintiff
argues that BP intentionally failed to conduct dermal and biological monitoring of the
Gulf oil spill cleanup workers and that such failure to do so is the reason why Dr.
Cook is unable to provide the requisite dose-response relationship data.65 Plaintiff
contends that Defendants should not be allowed to benefit from their behavior and
that excluding Dr. Cook’s Report and granting Defendants’ Motion for Summary
Judgment would only benefit that behavior. Accordingly, the remedy Plaintiff seeks
for Defendants’ alleged spoliation of evidence is the admission of Dr. Cook’s Report. 66
As discussed above, to properly assert a spoliation claim, Plaintiff must
demonstrate that: (1) Defendants controlled the evidence and were obliged to
preserve it at the time of destruction; (2) Defendants intentionally destroyed the
evidence; and (3) Defendants acted in bad faith.67 Plaintiffs fail to make this showing.
The chief flaw in Plaintiff’s argument is that Plaintiff does not point to any
actual evidence allegedly spoiled by Defendants. It is tautological that spoliation of
evidence requires evidence capable of spoliation.

But, here, Plaintiff chides

R. Doc. 60.
See R. Doc. 60-1 at pp. 1, 20. The Court previously addressed this argument, see, e.g., Kaoui, No.
CV 17-3313, R. Doc. 68, and explained why such alleged failure on BP’s part to conduct monitoring
has no bearing on Dr. Cook’s Report.
66 R. Doc. 60-1 at pp. 1–2.
67 Coastal Bridge Co., 833 Fed. Appx. at 574 (citing Port of S. La., 927 F. Supp. 2d at 346).
64
65

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Defendants not for destroying existing evidence, but for refusing to create potential
evidence in the form of biological monitoring data. Put differently, Plaintiff asks this
Court to sanction Defendants for not creating evidence in the first place. That is not
the law, nor would it be tenable in practice.68 Plaintiff has not provided any support
for that proposition, and the Court has found none.

The upshot of Plaintiff’s

argument is that sanctionable misconduct occurs every time a party could have but
refuses to create evidence potentially favorable to another party. Unsurprisingly,
every court to have considered Plaintiff’s argument has rejected it.69 This Court
concurs and finds no merit to Plaintiff’s argument.
Finally, the remedy sought by Plaintiff, even if she could prove spoliation, is
wholly inappropriate. The Court finds no basis—and Plaintiff has failed to provide
any support—for the theory that an unreliable, unhelpful, and otherwise
inadmissible expert opinion may nevertheless be admitted due to one party’s alleged
spoliation. It is the Court’s obligation as the gatekeeper of expert testimony to
determine that such evidence is reliable and admissible. Plaintiff’s suggested remedy
would have this Court flatly ignore its responsibilities and the Federal Rules of
Evidence by allowing introduction of scientifically unreliable testimony as a remedy
for the spoliation of evidence. Because the Court finds no merit to Plaintiff’s Motion,

See Campbell v. B.P. Expl. & Prod., Inc., No. CV 17-3119, 2022 WL 17251115, at *11 (E.D. La. Nov.
28, 2022) (Vance, J.) (“This is not a cognizable theory of spoliation, and it would expand the definition
of spoliation beyond any reasonably administrable limits.”).
69 See, e.g., id.; Fairley v. BP Expl. & Prod. Inc., No. CV 17-3988, 2022 WL 16731817, at *3 (E.D. La.
Nov. 3, 2022) (Ashe, J.) (“[C]ourts have consistently held that the failure to create evidence is not
spoliation.”); see also United States v. Greco, 734 F.3d 441, 447 (6th Cir. 2013) (“A failure to collect
evidence that may or may not have been available for collection is very different from the intentional
destruction of evidence that constitutes spoliation.”).
68

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the Court denies Plaintiff’s Motion for Admission of Plaintiff’s Expert Opinions
Because of BP Defendants’ Spoliation of Evidence of Plaintiff’s Exposure.
C. Motion for Summary Judgment
For the above reasons, Plaintiff lacks expert testimony on general causation.
Without expert testimony, which is required to prove general causation,70 Plaintiff
has failed to demonstrate a genuine dispute of material fact regarding her claims that
her 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.”71

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 general causation.
IV.

CONCLUSION

IT IS HEREBY ORDERED that Defendants’ Daubert Motion to Exclude the
Causation Testimony of Plaintiff’s Expert, Dr. Jerald Cook72 is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Admission of
Plaintiffs’ [sic] Expert Opinions Because of BP Defendants’ Spoliation of Evidence of
Plaintiff’s Exposure73 is DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary
Judgment74 is GRANTED.

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.”).
71 Williams, 2019 WL 6615504, at *11.
72 R. Doc. 53.
73 R. Doc. 60.
74 R. Doc. 54.
70

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IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants are
DISMISSED with prejudice.
New Orleans, Louisiana, January 23, 2023.

______________________________
WENDY B. VITTER
United States District Judge