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

Filing 88

ORDER AND REASONS - IT IS ORDERED that Defendants' 70 , 74 Motions for Summary Judgment and 73 Motion in Limine are GRANTED. IT IS FURTHER ORDERED that Plaintiff's 78 Motion for Admission is DENIED. IT IS ORDERED that all of Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 5/19/2023. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGORY ALPHONSE ROUNDS

CIVIL ACTION

VERSUS

NO. 17-4576

BP EXPLORATION &
PRODUCTION, INC. ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court is Defendants BP Exploration & Production, Inc.; BP
America Production Company; BP p.l.c.; Transocean Holdings, LLC;
Transocean Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.;
and Halliburton Energy Services, Inc.’s (“collectively BP”) Motion in Limine to
Exclude the General Causation Opinions of Plaintiff’s Expert, Dr. Jerald Cook
and Motion for Summary Judgment Due to Plaintiff’s Inability to Prove
Medical Causation (Docs. 73, 74). In response, Plaintiff Gregory Alphonse
Rounds has filed a motion entitled Motion for Admission of Plaintiff’s Expert
Opinions Because of BP Defendants’ Spoliation of Evidence of Plaintiff’s
Exposure (Doc. 78). For the following reasons, Defendants’ Motions are
GRANTED, and Plaintiff’s Motion is DENIED.

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BACKGROUND
This case is one among the “B3 bundle” of cases arising out of the
Deepwater Horizon oil spill. 1 This bundle comprises “claims for personal injury
and wrongful death due to exposure to oil and/or other chemicals used during
the oil spill response (e.g., dispersant).” 2 These cases were originally part of a
multidistrict litigation (“MDL”) pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but
the B3 plaintiffs either opted out of this agreement or were excluded from its
class definition. 3 Subsequently, Judge Barbier severed the B3 cases from the
MDL to be reallocated among the judges of this Court. 4 This case was
reassigned to Section H.
Plaintiff Gregory Alphonse Rounds filed a lawsuit against Defendants
based on his alleged exposure to toxic chemicals following the Deepwater
Horizon oil spill in the Gulf of Mexico. Plaintiff contends that his exposure to
crude oil and dispersants caused a litany of health conditions. Plaintiff brings
claims for general maritime negligence, negligence per se, and gross negligence
against Defendants.
Now before is Defendants’ Motion in Limine to Exclude the General
Causation Opinions Testimony of Plaintiff’s Expert and their Motion for
Summary Judgment Due to Plaintiff’s Inability to Prove Medical Causation. 5
In the Motion in Limine, Defendants argue that Plaintiff’s expert on medical
See In Re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
2 Id.
3 Id. at 2 n.3.
4 Id. at 7–8.
5 Docs. 73, 74.
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causation, Dr. Jerald Cook, fails to satisfy the Fifth Circuit’s requirements for
an admissible general causation opinion in toxic tort cases and should
therefore be excluded as unreliable. In the Motion for Summary Judgment,
Defendants argue that assuming their Motion in Limine is granted, Plaintiff
lacks expert testimony on general causation and therefore fails to present a
genuine issue of material fact as to whether his injuries were caused by
exposure to oil and dispersants. Also before the Court is Plaintiff’s motion
entitled Motion for Admission of Plaintiff’s Expert Opinions because of BP
Defendants’ Spoliation of Evidence of Plaintiff’s Exposure. 6 Plaintiff asks the
Court to allow Dr. Cook’s expert testimony in light of Defendants’ failure to
preserve evidence of exposure to toxic chemicals by clean-up workers or
perform biomonitoring and dermal monitoring of those workers. The Court will
consider each motion in turn.
LEGAL STANDARDS
I.

Daubert Motion
Federal Rule of Evidence 702 provides that a witness who is qualified as

an expert may testify if: (1) the expert’s “specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue”; (2) the
expert’s testimony “is based on sufficient facts or data”; (3) the expert’s
testimony “is the product of reliable principles and methods”; and (4) the
principles and methods employed by the expert have been reliably applied to
the facts of the case. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S.
Supreme Court held that Rule 702 “requires the district court to act as a
gatekeeper to ensure that ‘any and all scientific testimony or evidence
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Doc. 78.
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admitted is not only relevant, but reliable.’” 7 All types of expert testimony are
subject to this gatekeeping. 8 The party offering the expert testimony bears the
burden of proving its reliability and relevance by a preponderance of the
evidence. 9
The reliability of expert testimony “is determined by assessing whether
the reasoning or methodology underlying the testimony is scientifically
valid.” 10 The Court may consider several nonexclusive factors in determining
reliability, including: (1) whether the technique has been tested, (2) whether
the technique has been subject to peer review and publication, (3) the
technique’s potential error rate, (4) the existence and maintenance of
standards controlling the technique’s operation, and (5) whether the technique
is generally accepted in the relevant scientific community. 11 Granted, the
reliability analysis is a flexible one and “not every Daubert factor will be
applicable in every situation.” 12 As the gatekeeper of expert testimony, this
Court enjoys broad discretion in determining admissibility. 13
II.

Motion for Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 14 A genuine issue

Metrejean v. REC Marine Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D.
La. Sept. 21, 2009) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)).
8 See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
9 See Moore v. Ashland Chem. Co., 151 F.3d 269, 276 (5th Cir. 1998).
10 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007).
11 See Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004).
12 Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).
13 See Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).
14 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
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of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 15
In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in her favor. 16 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 17 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 18 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 19 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 20 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 21

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
17 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
18 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
19 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
20 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
21 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
15
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LAW AND ANALYSIS
“B3 plaintiffs must prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the response.” 22 “The
plaintiff’s burden with respect to causation in a toxic tort case involves proof of
both general causation and specific causation.” 23 “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.” 24
On the topic of general causation, Plaintiff has put forth a report from
Dr. Cook dated June 21, 2022, and entitled “Health Effects Among Deepwater
Horizon Oil Spill Response and Cleanup Workers: A Cause and Effect
Analysis.” 25 This report is not unique to these cases; another judge of this Court
has described it as “an omnibus, non-case specific general causation expert
report that has been used by many B3 plaintiffs.” 26
Nine sections of the Eastern District of Louisiana, including this one,
have excluded Dr. Cook’s June report or its earlier versions, holding generally
that Dr. Cook’s opinions are unreliable and unhelpful where he fails to identify
the level of exposure to a relevant chemical that can cause the conditions

In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, MDL NO. 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1, 2021).
23 Davis v. BP Expl. & Prod., Inc., No. 17-4664, 2022 WL 2789027, at *1 (E.D. La. July
15, 2022).
24 Knight, 482 F.3d at 351 (internal quotation marks omitted).
25 Doc. 73-4. The Court notes that Plaintiff did not produce his expert report until after
his expert report deadline had passed. However, this Court allows the late disclosure and
considers his expert report for the purpose of these motions. Accordingly, Defendants’ Motion
for Summary Judgment based on the lack of an expert report is denied as moot. Doc. 70.
26 McIntosh v. BP Expl. & Prod., Inc., No. 13-1020, 2022 WL 2342480, at *1 (E.D. La.
June 29, 2022).
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asserted in the plaintiffs’ complaints. 27 Indeed, in his opposition, Plaintiff
acknowledges that “about two hundred of BP’s motions to exclude Dr. Cook’s
general causation opinions have been granted.” 28 In light of this, Plaintiff
“takes a different tack” and focuses his opposition “on the scientific robustness
of Dr. Cook’s reliance literature and the fact that there are no alternative
studies on which he could properly rely to support his opinions.” 29 He argues
that it is not possible to establish a quantitative exposure to a given chemical
at a given level based on the data that was collected after the oil spill and that
Dr. Cook’s opinion relies on the best literature available. These new
arguments, however, “neither cure[] nor explain[] the deficiencies of Cook’s
report.” 30 Judge Africk has explained that:
“[T]he fundamental question in [the] general causation inquiry is
whether the chemicals, weathered oil, and dispersants to which
[plaintiff] alleges he was exposed can cause the conditions he
alleges.” Bass v. BP Expl. & Prod., No. 17-3037, 2022 WL 2986276,
at *4 (E.D. La. July 28, 2022) (Morgan, J.). Cook’s report fails “to
identify the level of exposure to a relevant chemical that can cause
See, e.g., Johns v. BP Expl. & Prod. Inc., No. 17-3304, 2022 WL 1811088 (E.D. La.
June 2, 2022) (Ashe, J.); Coleman v. BP Expl. & Prod., Inc., No. 17-4158, 2022 WL 2314400
(E.D. La. June 28, 2022) (Vance, J.); McIntosh, 2022 WL 2342480 (Barbier, J.); Harrison v.
BP Expl. & Prod. Inc., No. 17-4346, 2022 WL 2390733 (E.D. La. July 1, 2022) (Morgan, J.);
Davis, 2022 WL 2789027 (Zainey, J.); Turner v. BP Expl. & Prod. Inc., No. CV 17-3225, 2022
WL 2967441 (E.D. La. July 27, 2022) (Africk, J.); Reed v. BP Expl. & Prod., Inc., No. CV 173603, 2022 WL 3099925 (E.D. La. Aug. 4, 2022) (Milazzo, J.); Baggett v. BP Expl. & Prod.,
No. 17-3030, 2022 WL 4242521 (E.D. La. Sept. 13, 2022) (Guidry, J.); Hill v. BP Expl. & Prod.,
No. 17-3252, 2022 WL 4534747 (E.D. La. Sept. 28, 2022) (Vitter, J.); Moore v. BP Expl. &
Prod., Inc., No. CV 17-4456, 2022 WL 3594631, at *10 (E.D. La. Aug. 23, 2022) (Vance, J.);
Cantillo v. BP Expl. & Prod., No. 17-3226, R. Doc. 35 (E.D. La. Aug. 5, 2022) (Barbier, J.);
Seay v. BP Expl. & Prod., No. 17-4244, R. Doc. 53 (E.D. La. Aug. 5, 2022) (Barbier, J.);
Yarbrough v. BP Expl. & Prod., No. 17-4292, R. Doc. 53 (E.D. La. Aug. 5, 2022) (Barbier, J.);
Magee v. BP Expl. & Prod., No. 17-4399, R. Doc. 54 (E.D. La. Aug. 8, 2022) (Ashe, J.);
McMillan v. BP Expl. & Prod., No. 17-3396, R. Doc. 61 (E.D. La. Sept. 14, 2022) (Guidry, J.).
28 Doc. 80.
29 Id.
30 Walker v. BP Expl. & Prod. Inc., No. CV 17-3012, 2022 WL 17987118, at *8 (E.D.
La. Dec. 29, 2022) (J. Africk).
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the conditions asserted in plaintiff’s complaint” and therefore
cannot show general causation. Grant, 2022 WL 2467682, at *7.
The alleged impossibility of “establish[ing] a BP Oil Spill
responder’s quantitative exposure to a given chemical at a given
level” does not affect Cook’s ability to “consult 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.” Dawkins
v. BP Expl. & Prod., No. 17-3533, 2022 WL 2315846, at *10 (E.D.
La. June 28, 2022) (Vance, J.). 31
Accordingly, this Court agrees that these new arguments do not alter the
outcome of Defendants’ Motion in Limine. For the same reasons already
articulated by Judges Africk, Ashe, Barbier, Guidry, Morgan, Vance, Vitter,
and Zainey, the Court grants Defendants’ Motion in Limine.
In response to Defendants’ Motion, Plaintiff has filed a motion seeking
admission of Dr. Cook’s report through a different mechanism—as a sanction
for spoliation. Plaintiff argues that Defendants acted in bad faith when they
chose not to record quantitative data on the exposure of clean-up workers to
specific chemicals and that the Court should allow Plaintiff to rely on Dr.
Cook’s report as a sanction for that spoliation. As previously explained,
however, the lack of quantitative data regarding the clean-up workers’
exposure to a given chemical at a given level does not affect Dr. Cook’s ability
to opine on whether a specific chemical is “capable generally of causing certain
health issues for the general population.” 32 Thus, his report “still fails to
provide evidence of general causation as is required by the Fifth Circuit for

Id.
Id.; see Barkley v. BP Expl. & Prod. Inc., No. CV 13-1020, 2022 WL 3715438, at *1
(E.D. La. Aug. 5, 2022) (“[E]ven assuming that BP had an affirmative duty to conduct dermal
testing or biomonitoring after the oil spill, the lack of this information is not what renders
Dr. Cook’s expert report unreliable, unhelpful, and inadmissible.”).
31
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toxic tort cases.” 33 “Put simply, Dr. Cook’s report is flawed in ways unrelated
to BP’s decision not to conduct monitoring.” 34 Accordingly, even assuming that
Plaintiff could prove that Defendants spoliated evidence, 35 Dr. Cook’s opinion
remains unhelpful, unreliable, and inadmissible. Other sections of this Court
have reached the same result. 36 Plaintiff’s Motion is therefore denied. Because
Plaintiff cannot prove general causation, the Court also grants Defendants’
Motion for Summary Judgment.
CONCLUSION
For the foregoing reasons, Defendants’ Motion in Limine and Motion for
Summary Judgment are GRANTED. Plaintiff’s Motion is DENIED.
IT IS ORDERED that all of Plaintiff’s claims are DISMISSED WITH
PREJUDICE.

Fairley v. BP Expl. & Prod. Inc., No. CV 17-3988, 2022 WL 16731817, at *4 (E.D.
La. Nov. 3, 2022) (J., Ashe).
34 Campbell v. B.P. Expl. & Prod., Inc., No. CV 17-3119, 2022 WL 17251115, at *12
(E.D. La. Nov. 28, 2022) (J., Vance).
35 Other sections of this Court have agreed that the plaintiffs have not shown any
element required to prove spoliation. Id.; Walker, 2022 WL 17987118, at *11; Fairley, 2022
WL 16731817, at *3.
36 Campbell, 2022 WL 17251115, at *12 (“Dr. Cook’s report is flawed in ways unrelated
to BP’s decision not to conduct monitoring.”); Walker, 2022 WL 17987118, at *11 (“[T]he flaws
in Cook’s general causation report are unrelated to defendants’ failure to perform dermal
monitoring of oil spill workers.”); Fairley, 2022 WL 16731817, at *3 (“Finally, even if there
were evidence of spoliation, the proposed remedy – deeming Cook's opinions relevant – does
not solve the inherent problem in Cook’s report.”).
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New Orleans, Louisiana this 19th day of May, 2023.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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