Wade v. BP Exploration & Production, Inc. et al
Filing
63
ORDER and REASONS granting 45 Motion in Limine to Exclude the General Causation Testimony of Plaintiff's Expert, Dr. Jerald Cook and granting 46 Motion for Summary Judgment, for the reasons stated herein. Signed by Judge Sarah S. Vance on 9/23/2022. (cbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES R. WADE
CIVIL ACTION
VERSUS
NO. 17-4624
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION “R” (1)
ORDER AND REASONS
Before the Court is BP Exploration & Production, Inc., BP America
Production Company, and BP p.l.c.’s (collectively the “BP parties”) motion to
exclude the testimony of plaintiff’s general causation expert, Dr. Jerald
Cook,1 and their motion for summary judgment. 2 Plaintiff opposes both
motions.3
For the following reasons, the Court grants defendants’ motion to
exclude the testimony of Dr. Cook.
Without Dr. Cook’s expert report,
plaintiff cannot establish the general causation element of his claim at trial.
1
2
3
R. Doc. 45. The remaining defendants, Halliburton Energy Services,
Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc. join the BP parties’
motion to exclude the testimony of Dr. Cook. R. Doc. 45-1 at 1 n.1.
R. Doc. 46. The remaining defendants also join the BP parties’ motion
for summary judgment. R. Doc. 46-1 at 1 n.1.
R. Docs. 49 & 50.
1
Accordingly, the Court also grants defendants’ motion for summary
judgment.
I.
BACKGROUND
This case arises from plaintiff’s alleged exposure to toxic chemicals
following the Deepwater Horizon oil spill in the Gulf of Mexico. Plaintiff
alleges that he performed cleanup work “collect[ing] oil and contaminated
debris from beaches” in Mississippi after the Deepwater Horizon oil spill
beginning in April of 2010. 4
He contends that through this work, he
experienced “[c]ontinuous environmental” and “residential exposure” to
crude oil and dispersants. 5
Plaintiff represents that this exposure has
resulted in the following conditions: GERD; diarrhea; abdominal cramping;
chronic renal failure; chronic renal insufficiency; hypertension; exacerbation
of cellulitis; folliculitis; dermatitis; blistering, crusting, dryness, flakiness,
inflammation, redness, swelling, and itching of the skin; chronic hoarseness;
cough; ear pain; sinusitis; pharyngitis; sore throat; blood in sputum from the
nose; decreased sense of smell; facial or sinus pain; nasal congestion; eye
4
5
R. Doc. 45-2 at 3-5.
Id. at 5.
2
discomfort, burning, and redness; body aches; headaches; dizziness;
shortness of breath; anxiety; and fatigue.6
Plaintiff’s case was originally part of the multidistrict litigation
(“MDL”) pending before Judge Carl J. Barbier. His case was severed from
the MDL as one of the “B3” cases for plaintiffs who either opted out of, or
were excluded from, the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement.7 Wade is a plaintiff who opted out of the settlement.8
After plaintiff’s case was severed, it was reallocated to this Court. Plaintiff
asserts claims for general maritime negligence, negligence per se, and gross
negligence against the defendants as a result of the oil spill and its cleanup.9
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms plaintiff alleges in his complaint, he
offers the testimony of Dr. Jerald Cook, an occupational and environmental
physician.10 Dr. Cook is plaintiff’s sole expert offering an opinion on general
causation.11
6
7
8
9
10
11
In his June 21, 2022 report, Dr. Cook utilizes a “general
R. Doc. 45-7 at 1-3.
In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mex., on
Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12 (E.D.
La. Apr. 1, 2021).
R. Doc. 1-1 at 6.
R. Doc. 28 ¶¶ 19-49.
R. Doc. 45-3 (Cook Report).
Plaintiff has also retained Dr. Rachel Jones, a certified industrial
hygienist, to provide a report describing “the common, or shared,
3
causation approach to determine if some of the frequently reported health
complaints are indeed from the result of exposures sustained in performing
[oil spill] cleanup work.”12 Dr. Cook concludes that “[g]eneral causation
analysis indicates” that the following conditions, among others, “can occur
in individuals exposed to crude oil, including weathered crude oil”:
rhinosinusitis, chronic obstructive pulmonary disease (“COPD”), bronchitis,
asthma, dermatitis, conjunctivitis, and dry eye disease.13
The BP parties contend that Dr. Cook’s expert report should be
excluded on the grounds that that it is unreliable and unhelpful. 14
Defendants also move for summary judgment, asserting that if Dr. Cook’s
general causation opinion is excluded, plaintiff is unable to carry his burden
on causation.15 Plaintiff opposes both motions.16 The Court considers the
parties’ arguments below.
12
13
14
15
16
occupational exposures among worker[s]” who participated in the
Deepwater Horizon response and cleanup. R. Doc. 50-16 at 4 (Jones
Report).
R. Doc. 45-3 at 16 (Cook Report).
Id. at 103-133.
R. Doc. 45.
R. Doc. 46-1 at 1-2.
R. Docs. 49 & 50.
4
II.
MOTION TO EXCLUDE DR. COOK’S TESTIMONY
A.
Legal Standard
The district court has considerable discretion to admit or exclude
expert testimony under Federal Rule of Evidence 702. 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). Rule 702 provides that an expert witness
“qualified . . . by knowledge, skill, experience, training, or education may
testify” if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), the 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
admitted is not only relevant, but reliable.’” Metrejean v. REC Marine
Logistics, LLC, No. 08-5049, 2009 WL 3062622, at *1 (E.D. La. Sept. 21,
2009) (quoting Daubert, 509 U.S. at 589). This gatekeeping function applies
5
to all forms of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999).
The Court’s gatekeeping function consists of a two-part inquiry into
reliability and relevance. First, the Court must determine whether the
proffered expert testimony is reliable. The party offering the testimony bears
the burden of establishing its reliability by a preponderance of the evidence.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). The
reliability inquiry requires the Court to assess whether the expert’s reasoning
and methodology underlying the testimony are valid. See Daubert, 509 U.S.
at 593. The aim is to exclude expert testimony based merely on subjective
See id. at 590. “[F]undamentally
belief or unsupported speculation.
unsupported” opinions “offer[] no expert assistance to the [trier of fact]” and
should be excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir.
2005). 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.
Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004). The
6
Supreme Court has emphasized that these factors “do not constitute a
‘definitive checklist or test.’” Kumho, 526 U.S. at 150 (quoting Daubert, 509
U.S. at 593). Rather, courts “have considerable leeway in deciding in a
particular case how to go about determining whether particular expert
testimony is reliable.” Id. at 152.
“The reliability analysis applies to all aspects of an expert’s testimony:
the methodology, the facts underlying the expert’s opinion, the link between
the facts and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc.,
482 F.3d 347, 355 (5th Cir. 2007) (internal quotation marks omitted).
“Where the expert’s opinion is based on insufficient information, the analysis
is unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388
(5th Cir. 2009). Further, the Supreme Court has explained that “nothing in
either Daubert or the Federal Rules of Evidence requires a district court to
admit opinion evidence that is connected to existing data only by the ipse
dixit of the expert.” Joiner, 522 U.S. at 146. Rather, “[a] court may conclude
that there is simply too great an analytical gap between the data and the
opinion proffered.” Id.
Second, the Court must determine whether the expert’s reasoning or
methodology “fits” the facts of the case, and whether it will thereby assist the
trier of fact to understand the evidence. In other words, it must determine
7
whether it is relevant. See Daubert, 509 U.S. at 591. “Expert testimony
which does not relate to any issue in the case is not relevant and, ergo, nonhelpful.” Id. (quoting 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶
702[02] (1988)).
A district court’s gatekeeper function does not replace the traditional
adversary system or the role of the jury within this system. See id. at 596. As
noted in Daubert, “[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attacking shaky but admissible evidence.” Id.
Thus, in determining the admissibility of expert testimony, the district court
must accord the proper deference to “the jury’s role as the proper arbiter of
disputes between conflicting opinions.” United States v. 14.38 Acres of
Land, More or Less Situated in Leflore Cnty., Miss., 80 F.3d 1074, 1077 (5th
Cir. 1996).
B.
Discussion
Plaintiff has the burden of “prov[ing] that the legal cause of [his]
claimed injury or illness is exposure to oil or other chemicals used during the
response.” In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mex.,
on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *11 (E.D. La. Apr. 1,
8
2021) (noting that B3 plaintiffs, such as Wade, must prove that their alleged
personal injuries were “due to exposure to oil or other chemicals used during
the oil spill response”). The Fifth Circuit has developed a “two-step process
in examining the admissibility of causation evidence in toxic tort cases.”
Knight, 482 F.3d at 351. First, plaintiff must show general causation, which
means that he must show that “a substance is capable of causing a particular
injury or condition in the general population.” Id. Second, if the Court
concludes that plaintiff has produced admissible evidence on general
causation, it must then determine whether plaintiff has shown specific
causation, in other words, that “a substance caused [that] particular
[plaintiff’s] injury.” Id. If the Court finds that there is no admissible general
causation evidence, there is “no need to consider” specific causation. Id.
(citing Miller v. Pfizer, Inc., 356 F.3d 1326, 1329 (10th Cir. 2004)).
At issue here is whether plaintiff has produced admissible general
causation evidence. To prove that exposure to the chemicals in oil and
dispersants can cause the medical conditions plaintiff alleges, he offers the
testimony of an environmental toxicologist, Dr. Cook. Dr. Cook asserts that
his report is “based on the scientific methods used in the field of
environmental toxicology.” 17 More specifically, he states that his “causation
17
R. Doc. 45-3 at 7 (Cook Report).
9
analysis regarding health effects of oil spill exposures [] draw[s] on the
process of evaluating epidemiology studies and the work from established
expert groups similar to the Surgeon General’s Advisory Committee to make
a more likely than not conclusion.” 18
The Fifth Circuit has held that epidemiology provides the best evidence
of causation in a toxic tort case. See Brock v. Merrell Dow Pharms., Inc.,
874 F.2d 307, 311 (5th Cir. 1989). That is not to say that epidemiologic
evidence “is a necessary element in all toxic tort cases,” but “it is certainly a
very important element.” Id. at 313. As explained by the Fifth Circuit:
Epidemiology attempts to define a relationship between a
disease and a factor suspected of causing it . . . . To define that
relationship, the epidemiologist examines the general
population, comparing the incidence of the disease among those
people exposed to the factor in question to those not exposed.
The epidemiologist then uses statistical methods and reasoning
to allow her to draw a biological inference between the factor
being studied and the disease’s etiology.
Id. at 311.
When, as here, a review of epidemiological studies forms the basis of
an expert opinion, the essential first step requires the expert to identify an
association. An association occurs when “two events (e.g., exposure to a
chemical agent and development of disease) . . . occur more frequently
18
Id. at 19.
10
together than one would expect by chance.” Fed. Judicial Ctr., Reference
Manual on Scientific Evidence, 552 n.7 (3d ed. 2011) [hereinafter Reference
Manual]. An association, by itself, is not equivalent to a finding of causation.
Id. at 552.
Unlike an association, “[c]ausation is used to describe the
association between two events when one event is a necessary link in a chain
of events that results in the effect.” Id. at 552 n.7. The Reference Manual
indicates that “[a]ssessing whether an association is causal requires an
understanding of the strengths and weaknesses of a study’s design and
implementation, as well as a judgment about how the study’s findings fit with
other scientific knowledge.” Id. at 553. Because “all studies have ‘flaws’ in
the sense of limitations that add uncertainty about the proper interpretation
of results,” the key questions in evaluating epidemiologic evidence “are the
extent to which a study’s limitations compromise its findings and permit
inferences about causation.” Id.
Once an association is found, “researchers consider whether the
association reflects a true cause-effect relationship,” that is, whether “an
increase in the incidence of disease among the exposed subjects would not
have occurred had they not been exposed to the agent.” Id. at 597-98.
Alternative explanations, “such as bias or confounding factors,” should first
be considered. Id. at 598. If alternative explanations are not present,
11
researchers apply the Bradford Hill criteria to evaluate whether an agent can
be a cause of a disease. Id. at 597; Wagoner v. Exxon Mobil Corp., 813 F.
Supp. 2d 771, 803 (E.D. La. 2011) (“[T]he set of criteria known as the
Bradford Hill criteria has been widely acknowledged as providing an
appropriate framework for assessing whether a causal relationship underlies
a statistically significant association between an agent and a disease.”). The
Bradford Hill factors include: (1) temporal relationship; (2) strength of the
association; (3) dose-response relationship; (4) replication of findings; (5)
biological plausibility; (6) consideration of alternative explanations; (7)
cessation of exposure; (8) specificity of the association; and (9) consistency
with other knowledge. Reference Manual at 600. These factors are not
rigidly applied in a general causation analysis, but instead provide guidance
for an expert “[d]rawing causal inferences after finding an association.” Id.
Under Daubert, “courts must carefully analyze the studies on which
experts rely for their opinions before admitting their testimony.” Knight,
482 F.3d at 355; Wagoner, 813 F. Supp. 2d at 799 (“Whether epidemiological
studies support an expert’s opinion on the question of general causation in a
toxic tort case is critical to determining the reliability of the opinion.”).
Courts “may exclude expert testimony based on epidemiological studies
where the studies are insufficient, whether considered individually or
12
collectively, to support the expert’s causation opinion.” Baker v. Chevron
USA, Inc., 680 F. Supp. 2d 865, 875 (S.D. Ohio 2010) (citing Joiner, 522 U.S.
at 156-57). But a court cannot exclude expert testimony just because it
disagrees with the expert’s conclusions, although the Supreme Court has
recognized that “conclusions and methodology are not entirely distinct from
one another.” Joiner, 522 U.S. at 146.
With the above standards in mind, the Court examines Dr. Cook’s
general causation report. As noted by another section of this Court, “Cook
issued an omnibus, non-case specific general causation expert report that
has been used by many B3 plaintiffs.” Street v. BP Expl. & Prod. Inc., No.
17-3619, 2022 WL 1811144, at *2 (E.D. La. June 2, 2022). Dr. Cook’s report
is divided into five chapters.
The first chapter outlines Dr. Cook’s
qualifications, which are not challenged in this case.19 The second chapter
provides an overview of the Deepwater Horizon oil spill. 20 The third chapter
describes Dr. Cook’s methodology, the first step of which involved his
“review and analy[sis]” of the “available scientific literature to determine the
strength of an association between environmental exposure and a health
effect.” 21 After reviewing the literature, Dr. Cook asserts that he selected the
19
20
21
Id. at 8.
Id. at 9-15.
Id. at 20.
13
epidemiological studies cited in his causation analysis “based on the quality
of the study and study design.”22
Chapter four of Dr. Cook’s report details prior studies on the health
effects associated with oil spills.23 This section first provides “summaries of
studies that evaluate health effects that may be associated with exposures
from oil spill response and cleanup work” in past oil spills. 24 It then discusses
the findings and shortcomings of three studies on the Deepwater Horizon
oil spill: (1) the National Institute for Occupational Safety and Health’s
(“NIOSH”) Health Hazard Evaluations, (2) the Deepwater Horizon oil spill
Coast Guard cohort study, and (3) the Gulf Long-Term Follow-Up study
(“GuLF STUDY”).25 Chapter five presents Dr. Cook’s conclusions on general
causation for four categories of health conditions: (1) respiratory conditions,
(2) dermal conditions, (3) ocular conditions, and (4) cancers.26 Specifically,
he reaches the following conclusions:
• Oil response and cleanup workers have reported acute
symptoms of coughing; shortness of breath; wheezing;
tightness in chest; and burning in nose, throat, and lungs.
. . . Some individuals have prolonged effects from these
exposures, and can develop chronic respiratory conditions
. . . . These conditions include chronic rhinitis, chronic
22
23
24
25
26
Id. at 22.
Id. at 61-101.
Id. at 62.
Id. at 65-101.
Id. at 102.
14
sinusitis, allergic rhinitis, chronic obstructive pulmonary
disease (COPD), bronchitis, asthma or reactive airway
disease . . . . General causation analysis indicates that
these acute and chronic respiratory conditions can occur
in individuals exposed to crude oil, including weathered
crude oil, during oil spill response and cleanup work. 27
• Chemical irritation would be the most common problem
with workers, particularly for acute symptoms that occur
during or shortly after exposure. These can be described as
skin irritation, skin rash, or skin itching. Dermatitis may
also occur following exposure to chemicals, such as crude
oil, weathered crude oil, or dispersants. General causation
analysis indicates that these acute and chronic [dermal]
conditions can occur in individuals exposed to crude oil,
including weathered crude oil, during oil spill response
and cleanup work.28
• Chemical irritation would be the most common problem
with workers, particularly for acute symptoms . . . . These
can be described as acute eye burning, acute eye irritation,
and acute conjunctivitis. Chronic conditions following
exposure can occur in a smaller subset of individuals who
experience chronic inflammation affecting their eyes. The
evidence available at this time does indicate that exposure
to crude oil, including weathered crude oil, can result in
acute and chronic eye symptoms. The medical problems
most likely from these exposures are acute conjunctivitis,
chronic conjunctivitis, and dry eye disease. General
causation analysis indicates that these acute and chronic
ocular conditions can occur in individuals exposed to
crude oil, including weathered crude oil, during oil spill
response and cleanup work.29
27
28
29
Id. at 119-20 (emphasis added).
Id. at 125-26 (emphasis added).
Id. at 132-33 (emphasis added).
15
Based on Dr. Cook’s report, defendants argue that Wade is unable to
prove general causation with relevant and reliable expert testimony. They
contend that Dr. Cook’s general causation report is unreliable because he
failed to: (1) identify the harmful dose of exposure of any particular chemical
to which plaintiff was exposed that is necessary to cause the plaintiff’s
conditions; (2) identify which chemicals can cause which conditions; (3)
verify Wade’s diagnoses; and (4) follow the accepted methodology for
analyzing epidemiology.30 Defendants further argue that even if Dr. Cook’s
report were reliable, it is unhelpful because it addresses few of plaintiff’s
specific medical complaints.31 Defendants also note that this Court and
several others have excluded various versions of Dr. Cook’s report for similar
30
31
R. Doc. 45-1 at 8-19.
Id. at 19 n.28.
16
reasons,32 including the version at issue in this case. 33 Plaintiffs contend that
the latest version of Dr. Cook’s report, version four, is “substantially
improved,”34 but it is undisputed that the only substantive change Dr. Cook
made in version four is a revision to Section 3.4.1 of his report, which he
updated to include tables stating the minimal risk levels of a handful of
chemicals found in crude oil and dispersants on certain systems of the
human body. 35
32
33
34
35
This Court excluded earlier versions of Dr. Cook’s report in multiple
cases on the grounds that his opinion was unreliable and unhelpful.
See, e.g., Dawkins v. BP Expl. & Prod., Inc., No. 17-3533, 2022 WL
2315846, at *8-9 (E.D. La. June 28, 2022); Coleman v. BP Expl. &
Prod., Inc., No. 17-4158, 2022 WL 2314400, at *8-9 (E.D. La. June 28,
2022); Grant v. BP Expl. & Prod., Inc., No. 17-4334, 2022 WL
2467682, at *7-9 (E.D. La. July 6, 2022); Peairs v. BP Expl. & Prod.,
Inc., No. 17-3596, 2022 WL 2817852, at *7-11 (E.D. La. July 19, 2022).
Other sections of this Court have done the same. See, e.g., Novelozo v.
BP Expl. & Prod., No. 13-1033, 2022 WL 1460103, at *7 (E.D. La. May
9, 2022); Street, 2022 WL 1811144, at *6; Harrison v. BP Expl. & Prod.
Inc., No. 17-4346, 2022 WL 2390733, at *7 (E.D. La. July 1, 2022).
Judge Barbier and Judge Ashe have both excluded the version of Dr.
Cook’s report at issue here multiple times. See, e.g., Cantillo v. BP Expl.
& Prod., No. 17-3226, R. Doc. 35 (E.D. La. Aug. 5, 2022); Seay v. BP
Expl. & Prod., No. 17-4244, R. Doc. 53 (E.D. La. Aug. 5, 2022);
Yarbrough v. BP Expl. & Prod., No. 17-4292, R. Doc. 53 (E.D. La. Aug.
5, 2022); Magee v. BP Expl. & Prod., No. 17-4399, R. Doc. 54 (E.D. La.
Aug. 8, 2022). This Court has, as well. See, e.g., Nestle v. BP Expl. &
Prod., No. 17-4463, R. Doc. 61 (E.D. La. Sept. 12, 2022).
R. Doc. 50 at 1.
R. Doc. 45-3 at 39-61 (Cook Report).
17
The Court first addresses defendants’ contention that Dr. Cook’s report
is unreliable and cannot establish general causation because it does not
identify a harmful level of exposure to a specific chemical to which plaintiff
was exposed.36 The Court begins with this objection because “[s]cientific
knowledge of the harmful level of exposure to a chemical” is considered “a
minimum fact[] necessary to sustain the plaintiff’s burden in a toxic tort
case.”
Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
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. Williams v. BP Expl. &
Prod., Inc., No. 18-9753, 2019 WL 6615504, at *8 (E.D. La. Dec. 5, 2019)
(citing Knight, 482 F.3d at 351); Lee v. BP Expl. & Prod., Inc., No. 18-10381,
2020 WL 6106889, at *4 (E.D. La. Sept. 29, 2020) (“[D]istrict courts within
the Fifth Circuit have likewise required toxic tort plaintiffs to define ‘the level
of exposure necessary to produce effects’ in order to establish general
causation.”); see also Seaman v. Seacor Marine L.L.C., 326 F. App’x 721,
726-27 (5th Cir. 2009) (per curiam) (holding that “[w]ithout any facts that
36
R. Doc. 45-1 at 8-14.
18
would establish the allegedly harmful level of exposure . . . Dr. Prellop’s
opinion regarding diesel exhaust does not establish general causation”).
Here, the Court finds that Dr. Cook’s failure to identify the level of
exposure to a relevant chemical that can cause the conditions asserted in
plaintiff’s complaint renders his opinion unreliable, unhelpful, and incapable
of establishing general causation.
Turning first to reliability, Dr. Cook makes clear in his report that a
foundation of toxicology is that “dose determines the poison.”37 Because of
this maxim, Dr. Cook explains that “[t]oxicologists study chemicals for the
lowest levels that can cause adverse health effects . . . [which] requires
sophisticated studies that can control the low dose while accurately
measuring the effect of interest.”38 The AMA Guide, attached to defendants’
motion, also emphasizes the importance of determining the dose-response
relationship. Specifically, the AMA Guide states that “the most critical phase
of the hazard evaluation process” is to “determine whether the estimated
dose was sufficient to explain observed clinical effects known to be associated
with the agent in question.”39 It additionally cautions that “[i]f exposureresponse
37
38
39
and
dose-response
considerations
R. Doc. 45-3 at 31 (Cook Report).
Id.
R. Doc. 45-6 at 6-7.
19
are
disregarded,
then
misinterpretations,
misunderstandings,
erroneous
judgments,
and
inappropriate actions occur.”40
The closest Dr. Cook’s report comes to identifying a harmful level of
exposure that can trigger specific health conditions is his consideration of
the Bradford Hill factor of “dose-response.”41 But even in the sections of his
report that are dedicated to the dose-response relationship and exposure, Dr.
Cook still fails to identify a harmful dose of any chemical to which plaintiff
was allegedly exposed. Further, he fails to even specify which constituent
chemicals within “crude oil” and “weathered oil” he is purportedly analyzing
for a dose-response relationship.
Instead, in the “dose-response
relationship” sections of his report, Dr. Cook simply cites studies from both
the Deepwater Horizon oil spill, as well as previous oil spills, which generally
found a positive association between respondents who reported higher levels
of exposure to crude oil and the prevalence of various medical conditions.42
For example, Dr. Cook’s “dose-response relationship” analysis on
rhinosinusitis states in full:
Kim et al. (2013) showed a dose-response by assigning residents
to zones based on their distance from the oil spill. The
researchers found a dose-response effect in all reported health
effects, including rhinitis. Rusiecki et al. (2022) also found a
40
41
42
Id. at 7.
See, e.g., R. Doc. 45-3 at 106 (Cook Report).
Id. at 106, 113, 123, 128.
20
dose-response by statistical analysis, with the responders who
had higher reported exposures having a higher incidence of
chronic sinusitis. 43
Notably, neither Dr. Cook, nor the two studies, specify a base level of
exposure that is necessary to cause rhinosinusitis. In the Kim, et al., study,
the respondents were “residents living in the Taean coastal area . . . [that]
had potential exposures to the oil spill from the Hebei Spirit tanker.”44 Given
the ambiguity in whether residents were even exposed to oil, the study does
not specify what level of exposure it concludes is associated with
rhinosinusitis. And in the Rusiecki, et al., 2022 study, whether a participant
was a responder to the oil spill or not was used as a proxy for exposure, and
“[o]ther exposure assessments were not used to classify the responders as
exposed.”45 Again, any assessment of actual exposure, let alone the level of
exposure to a particular chemical, was not available. These studies, both of
which are “silent on the level of exposure . . . that would be significant,” do
not assist Dr. Cook in “meeting [plaintiff]’s ‘minimal burden of establishing
by ‘[s]cientific knowledge . . . the harmful level of exposure to a chemical.’”
Seaman, 326 F. App’x at 727 (quoting Allen, 102 F.3d at 199).
43
44
45
Id. at 106.
Id. at 64 (emphasis added).
Id. at 78.
21
Dr. Cook’s report does acknowledge that one of the limitations of the
studies he relies on is the “[l]imited availability of quantitative exposure
measures,” given the “[l]ikely low [level of] individual exposures.”46 For
example, he notes that the GuLF STUDY researchers represented that it was
“difficult to obtain accurate and comprehensive exposure information on
participants . . . because many of the assessments would have been made
months after the workers were exposed,” and “many workers will have had
multiple exposures during the oil spill, . . . such that single exposure
measurements may not be sufficient to fully assess total exposure.”47 The
report also mentions that the health hazard evaluations conducted by the
National Institute of Occupational Safety and Health “primarily utilized
qualitative assessment techniques rather than the traditional industrial
hygiene exposure assessment and quantitative measurement methods.”48
Although Dr. Cook notes these limitations, he provides no explanation about
the “extent to which [these] limitations compromise [his] findings . . . about
causation.” Reference Manual at 553.
Given Dr. Cook’s failure to determine the relevant harmful level of
exposure to chemicals to which plaintiff was exposed for plaintiff’s specific
46
47
48
Id. at 92.
Id.
Id. at 65.
22
conditions, the Court finds that he lacks sufficient facts to provide a reliable
opinion on general causation. See McGill v. BP Expl. & Produc., Inc., 830 F.
App’x 430, 433 (5th Cir. 2020) (per curiam) (upholding the exclusion of an
expert’s opinion that was “not based on sufficient facts” and relied on studies
that failed to “provide conclusive findings on what exposure level of Corexit
is hazardous to humans”); Moore v. Ashland Chem. Inc., 151 F.3d 269, 27778 (5th Cir. 1998) (holding that the “district court was entitled to conclude”
that an expert’s opinion was “inadequate under Daubert” when the expert
“had no information on the level of exposure necessary for a person to
sustain the [relevant] injuries”).
The Court also finds that Dr. Cook’s report is unhelpful to the factfinder
for many of the same reasons. Rule 702 requires that an expert’s opinion
must “help the trier of fact to understand the evidence or to determine a fact
in issue.” Fed. R. Evid. 702(a). “To be ‘helpful’ under Rule 702, the evidence
must possess validity when applied to the pertinent factual inquiry.” United
States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995). Courts should thus
exclude testimony that “fail[s] to provide a ‘relevant’ link with the facts at
issue.” Knight, 482 F.3d at 355.
Here, the Court finds that Dr. Cook’s opinion is unhelpful because of
his inability to link any specific chemical that Wade was allegedly exposed to,
23
at the level at which he was exposed, to the conditions that he alleges in his
complaint. Specifically, Dr. Cook’s conclusion that there is a cause-andeffect relationship between the respiratory, ocular, and dermal conditions he
analyzed and “expos[ure] to crude oil, including weathered crude oil,” is
unhelpful without identifying the specific chemicals and exposure levels
capable of causing specific conditions alleged by plaintiff. 49 As noted by
plaintiff, he retained Dr. Cook to provide a general causation report that
“identifies the medical conditions generally recognized in the literature on
BP Oil Spill responders,” not the specific conditions alleged by plaintiff. 50
Although Dr. Cook admits that there are thousands of chemicals in
crude oil, and that the chemical composition of weathered oil is highly
variable, he makes no attempt to identify which chemicals within crude oil
plaintiff was allegedly exposed to. Indeed, the majority of the studies he cites
similarly do not identify which chemicals respondents were exposed to, and
one study noted a concern about confounding variables, stating that some
respondents likely had unknown “petrochemical and other exposures not
due to their oil spill cleanup activities.” 51 See Wagoner, 813 F. Supp. 2d at
802 (“It is true that in Joiner, the Supreme Court indicated that an expert
49
50
51
R. Doc. 45-3 at 120 (Cook Report).
R. Doc. 50 at 4.
R. Doc. 45-3 at 92 (Cook Report).
24
opinion on general causation should rely on studies that examine the specific
agent that is at issue.” (emphasis added) (citing Joiner, 522 U.S. at 145-46)).
In providing a general causation determination, Dr. Cook had to assess
whether “the types of chemicals [that plaintiff] w[as] exposed to can cause
[her] particular injuries in the general population.” Knight, 482 F.3d at 355.
Given that Dr. Cook’s report does not identify which specific chemicals
plaintiff was exposed to, nor does it address a number of the injuries plaintiff
alleges,52 the Court finds his report is unhelpful to the factfinder. See Knight,
482 F.3d at 355 (upholding the district court’s exclusion of an expert because
the expert relied on evidence that lacked “a ‘relevant’ link with the facts at
issue”).
In reaching its decision, the Court rejects plaintiff’s efforts to defend
Dr. Cook’s failure to identify a harmful level of exposure to a specific
chemical. First, plaintiff asserts that Dr. Cook was unable to include data on
a harmful level of exposure because “BP consciously, or in the most favorable
light negligently, avoided recording data which would show the exposure
doses of spill response workers.”53 Regardless of the veracity54 of this
52
53
54
For example, Cook’s report does not address renal failure, pharyngitis,
abdominal cramping, or anxiety.
R. Doc. 50 at 11.
Notably, other Courts addressing the scope of data collected as part of
the Deepwater Horizon oil spill have cast doubt on the assertion that
25
assertion, Dr. Cook was not prevented from consulting the relevant scientific
and medical literature on the harmful effects of oil to determine whether a
relevant chemical has the capacity to cause the specific injuries alleged by
plaintiff in the general population. Dr. Cook was not limited to data from the
Deepwater Horizon oil spill, and in fact did rely on studies from previous oil
spills.55
Plaintiff additionally asserts that Dr. Cook’s reliance on studies that
used an “ever/never” binary exposure model, in which respondents were
asked whether they had ever been exposed to crude oil, was an adequate
alternative to the traditional quantitative estimates of a dose-response
relationship. 56 Specifically, plaintiff represents that because BP allegedly
55
56
there is a lack of monitoring data associated with the spill. See, e.g., In
re Deepwater Horizon Belo Cases, No. 19-963, 2020 WL 6689212, at
*4 (N.D. Fla. Nov. 4, 2020), aff’d sub nom. In re Deepwater Horizon
BELO Cases, No. 20-14544, 2022 WL 104243 (11th Cir. Jan. 11, 2022)
(finding that following the Deepwater Horizon oil spill Unified Area
Command, which was composed of several federal and state agencies,
“engaged in extensive and coordinated data collection and
environmental monitoring efforts, in what has been characterized as
‘the largest environmental investigation of an oil spill ever
undertaken’”); Harrison, 2022 WL 2390733, at *7 (noting that Dr.
Cook “could have attempted to support an opinion as to the dose
necessary to cause plaintiff’s symptoms by relying on the universe of
relevant epidemiology and toxicology literature studying the spill or by
relying on the work of Dr. Jones”).
R. Doc. 45-3 at 62-101 (Cook Report).
R. Doc. 50 at 11-15.
26
“squandered the opportunity to preserve evidence of dose,” the scientific
community publishing “peer reviewed science for the BP Oil Spill worker
population” has turned to qualitative measures, such as the “ever/never”
model,
instead
of
the
“traditional
Bradford
Hill
dose-response
relationship.”57 Plaintiff thus asserts that because Dr. Cook is “simply using
the same methodology as the relevant scientific community” studying the BP
oil spill worker population, his general causation opinion should not be
excluded based on his failure to identify a particular chemical or dose. 58
Although the question of whether a study has been subjected to peer
review and publication is relevant, it is “not dispositive” or the “sine qua non
of admissibility.” Daubert, 509 U.S. at 592. And even if the ever/never
exposure model is used in some literature on the Deepwater Horizon oil
spill, Dr. Cook states in his report that researchers associated with the
Deepwater Horizon oil spill studies that he relies on have expressed
concerns about the “accur[acy] and comprehensive[ness]” of respondents’
qualitive exposure responses.59 For example, the report notes that NIOSH
57
58
59
Id. at 11.
Id. at 15.
R. Doc. 45-3 at 92 (Cook Report) (noting that “GuLF STUDY
researchers also noted that it would be difficult to obtain accurate and
comprehensive exposure information on participants in the GuLF
STUDY”).
27
investigators “disregarded the workers’ self-reports,” determining that the
workers’ self-reported exposures had not been likely. 60 Moreover, as noted
above, Dr. Cook was not limited to studies on the Deepwater Horizon oil spill
in developing his general causation opinion.
Given the concerns about the accuracy of this model from both
plaintiff’s expert as well as the investigators themselves, the Court does not
find that, in this context, Dr. Cook’s conclusions are reliable.
In sum, plaintiff, as the party offering the testimony of Dr. Cook, has
failed to meet his burden of establishing the reliability and relevance of Dr.
Cook’s report. Moore, 151 F.3d at 276. Given that Dr. Cook’s report is
unreliable and fails to provide the “minimal facts necessary” to establish
general causation in this case, see Allen, 102 F.3d at 199, the Court grants
defendants’ motion to exclude Dr. Cook’s testimony. See Seaman, 326 F.
App’x at 727-28 (upholding the district court’s exclusion of an expert’s
testimony that did “not come close to establishing either general or specific
causation” and “provide[d] no clue regarding what would be a harmful level
of Ferox exposure”).
60
Id. at 72.
28
III. MOTION FOR SUMMARY JUDGMENT
A.
Legal Standard
Summary judgment is warranted when “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.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a
dispute to any material fact exists, [the Court] consider[s] all of the evidence
in the record but refrain[s] from making credibility determinations or
weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness
Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but “unsupported allegations or
affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’
are insufficient to either support or defeat a motion for summary judgment.”
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting
10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine dispute
of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014).
29
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.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,
951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by
either countering with 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.” Id. at 1265.
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
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 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
resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
30
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322)).
B.
Discussion
In their motion for summary judgment, defendants contend that they
are entitled to summary judgment because plaintiff cannot establish either
general or specific causation. 61
Although the parties dispute whether
plaintiff is required to present admissible expert testimony to establish
specific causation, neither party contests that expert testimony is necessary
to establish general causation.62 Here, the Court has excluded testimony
from plaintiff’s only expert offering an opinion on general causation.
Although plaintiff has also retained Dr. Rachel Jones as a “general exposure
assessment” expert,63 she does not provide a general causation opinion, nor
does she provide the information or analysis that Dr. Cook’s report
lacks. Specifically, she does not identify a harmful level of exposure to the
61
62
63
R. Doc. 46.
See R. Doc. 49 at 3 (asserting that “general causation evidence is
sufficient to defeat summary judgment”); R. Doc. 46-1 at 9 (“Even
though [plaintiff] is advocating that he does not need expert evidence
of specific causation, that does not alter his obligation to introduce
expert evidence of general causation.”).
R. Doc. 50 at 4.
31
chemicals that plaintiff was allegedly exposed to that can cause the
conditions he alleges. Although Dr. Jones summarizes reports that
measured the levels of a variety of toxic chemicals at different cleanup sites,64
she does not address the issue of causation.
Because the Court excludes Dr. Cook’s opinion on general causation,
and plaintiff has produced no other admissible general causation evidence in
this case, the Court need not reach the question of specific causation. See
Knight, 482 F.3d at 352 (noting that if “the district court properly
determined that [an expert’s] testimony regarding general causation was
inadmissible, . . . then there would be no need to consider . . . specific
causation”). Given that plaintiff cannot prove a necessary element of his
claims against defendants, his claims must be dismissed. See Williams, 2019
WL 6615504, at *11 (“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.”); see also McGill, 830 F. App’x at 434
(upholding the district court’s grant of summary judgment given that the
plaintiff did “not put forward any non-speculative evidence that Corexit and
64
R. Doc. 50-16 (Jones Report).
32
oil exposure cause the types of illnesses he suffer[ed] from”). Accordingly,
the Court grants defendants’ motion for summary judgment.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the BP parties’ motion
to exclude the testimony of Dr. Cook. The Court also GRANTS the BP parties’
motion for summary judgment. Plaintiff’s claims are DISMISSED WITH
PREJUDICE.
23rd day of September, 2022.
New Orleans, Louisiana, this _____
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
33
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