Gaudet et al v. Howard L. Nations, APC et al
ORDER AND REASONS: IT IS ORDERED that Plaintiffs' 330 Motion to Exclude Expert Testimony of Evan J. Weems is DENIED. Signed by Judge Wendy B Vitter on 7/29/2022. (cwa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBORAH A. GAUDET, ET AL.
HOWARD L. NATIONS, APC, ET AL.
SECTION: D (1)
ORDER AND REASONS
Before the Court is Plaintiffs’ Motion to Exclude Expert Testimony of Evan J.
Weems.1 The Motion is opposed by Howard L. Nations, Cindy L. Nations, Howard L.
Nations, APC, Gregory D. Rueb, Rueb & Motta, APLC, and the Rueb Law Firm
(collectively, “Defendants”),2 and Plaintiffs have filed a Reply.3
After careful consideration of the parties’ memoranda and the applicable law,
the Motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND4
This case arises from the April 20, 2010 Deepwater Horizon oil spill in the Gulf
of Mexico, and Plaintiffs’ allegations that Defendants’ legal representation of BP
Subsistence Claims caused Plaintiffs to lose their opportunity to receive a BP
Subsistence Claim compensation award from the BP Deepwater Horizon Economic
Settlement (hereafter, the “BP Settlement Agreement”).5 Plaintiffs filed the instant
R. Doc. 330.
R. Doc. 352.
3 R. Doc. 381.
4 The factual background of this case was extensively detailed in several orders previously issued by
this Court (See, R. Docs. 234, 357, & 391) and, for the sake of brevity, will not be repeated here.
5 R. Docs. 1, 45, 99, & 236.
Motion on May 31, 2021, seeking to exclude the expert testimony of Evan J. Weems
under Fed. R. Evid. 702 and Daubert 6 because his opinions are based upon
insufficient and inaccurate facts and data and inaccurate principles of law. 7
Plaintiffs argue that Weems’ opinions regarding the timeliness and viability of their
BP Subsistence Claims should be excluded as unreliable because they are based upon
unsupported assumptions and conjecture.
Defendants argue that Weems’ assumptions and opinions are reasonable and
meet Daubert standards based upon his extensive experience filing BP Subsistence
Claims, including his attendance at a large number of field visits and claim handling
relating to fraud, waste, and abuse issues, and based upon evidence presented by
Amber Affolder, the Fed. R. Civ. P. 30(b)(6) corporate representative for Howard L.
Nations, APLC.8 Defendants further assert that Plaintiffs fail to cite any evidence or
law to show Weems’ opinions regarding the viability of their BP Subsistence Claims
is untrustworthy or unacceptable. 9
Defendants contend that Plaintiffs’ false
criticisms of Defendants are not relevant to Weems’ expert report or to the fact that
Plaintiffs have no proof of causation, an essential element of their claim. 10 In
response, Plaintiffs re-urge many of the same arguments made in their Motion, and
further assert that Defendants should be judicially estopped from attacking the
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
R. Doc. 330 at p. 1; R. Doc. 330-1 at pp. 2-9.
8 R. Doc. 352 at pp. 2-5.
9 Id. at pp. 4-5.
10 Id. at p. 6.
legitimacy of BP Subsistence Claims “they filed and/or for whom they contractually
agreed to file claims.”11
The district court has considerable discretion to admit or exclude expert
testimony under Fed. R. Evid. 702,12 and the burden rests with the party seeking to
present the testimony to show that the requirements of Rule 702 are met.13 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
(d) The expert has reliably applied the principles and methods to the
facts of the case.14
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.15 “To be admissible under Rule
702, the court must find that the evidence is both relevant and reliable.”16 According
R. Doc. 381 at p. 5 (emphasis in original).
See, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 139 L.Ed.2d 508 (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. 13-0366 c/w 13-0550, 13-5137, 13-2496, 13-5508, 13-6413, 14-374, 141714, 2016 WL 3180776, at *8 (E.D. La. June 7, 2016) (Brown, J.) (citing authority).
13 Moore v. Ashland Chemical Inc., 151 F.3d 269, 276 (5th Cir. 1998).
14 Fed. R. Evid. 702; Tajonera, Civ. A. No. 13-0366, 2016 WL 3180776 at *8.
15 United States v. Fullwood, 342 F.3d 409, 412 (5th Cir. 2003) (citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
16 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)).
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.17 The purpose of the reliability requirement is to exclude
expert testimony based merely on subjective belief or unsupported speculation.18
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.”19 To prove reliability, the proponent of the expert testimony must
present some objective, independent validation of the expert’s methodology.20 The
objective of this Court’s gatekeeper role is to ensure that an expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.”21
Plaintiffs do not challenge Weems’ general qualifications as an expert or the
relevance of his opinions in the instant Motion. Instead, Plaintiffs argue that his
Ebron, 683 F.3d at 139 (citing Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002)).
Tajonera, Civ. A. No. 13-0366, 2016 WL 3180776 at *8 (citing Daubert, 509 U.S. at 590, 113 S.Ct. at
19 Recif Resources, LLC v. Juniper Capital Advisors, L.P., Civ. A. No. H-19-2953, 2020 WL 5623982, at
*2 (S.D. Tex. Sept. 18, 2020) (Atlas, J.) (quoting Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009))
(internal quotation marks omitted).
20 Recif Resources, LLC, Civ. A. No. H-19-2953, 2020 WL 5623982 at *2 (citing Brown v. Illinois Cent.
R. Co., 705 F.3d 531, 536 (5th Cir. 2013)).
21 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999);
Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th Cir. 2006).
expert testimony should be excluded because it is based upon insufficient and
inaccurate facts and data and inaccurate principles of law.22 Thus, the only issue
before the Court is whether Weems’ expert testimony should be excluded as
unreliable under Daubert.23
The Fifth Circuit has recognized that, “The Daubert reliability analysis applies
to, among other things, ‘the facts underlying the expert’s opinion.’”24 “In particular,
an opinion based on ‘insufficient, erroneous information,’ fails the reliability
standard.”25 The Fifth Circuit has further cautioned that, “Although the Daubert
reliability analysis is flexible and the proponent of the expert evidence need not
satisfy every one of its factors, ‘the existence of sufficient facts . . . is in all instances
mandatory.’”26 Thus, “expert testimony that relies on ‘completely unsubstantiated
factual assertions’ is inadmissible.”27 Nevertheless, the Fifth Circuit has made clear
that, “[a]s a general rule, questions relating to the bases and sources of an expert’s
opinion affect the weight to be assigned that opinion rather than its admissibility and
should be left for the jury’s consideration.”28 “It is the role of the adversarial system,
not the court, to highlight weak evidence.”29
R. Doc. 330 at p. 1; R. Doc. 330-1 at pp. 2-9.
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
24 Moore v. Int’l Paint, LLC, 547 Fed.Appx. 513, 515 (5th Cir. 2013) (quoting Knight v. Kirby Inland
Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007)); Jacked Up, LLC v. Sara Lee Corporation, 291 F. Supp.
3d 795, 802 (N.D. Tex. 2018) (Horan, M.J.) (quoting Moore, 547 Fed.Appx. at 515).
25 Moore, 547 Fed.Appx. at 515 (quoting Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 389
(5th Cir. 2009)).
26 Moore, 547 Fed.Appx. at 515 (quoting Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir. 2007))
(internal citation omitted).
27 Moore, 547 Fed.Appx. at 515 (quoting Hathaway, 507 F.3d at 319, n.4).
28 Primrose Operating Co. v. National American Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting
United States v. 14.38 Acres of Land, More of Less Sit. In Leflore County, Miss, 80 F.3d 1074, 1077 (5th
Cir. 1996)) (internal quotation marks omitted) (emphasis added by Primrose).
29 Primrose, 382 F.3d at 562.
The Court agrees with Defendants that Plaintiffs have failed to show that
Weems’ expert opinions are unreliable because they are based upon insufficient facts
Indeed, Plaintiffs merely challenge Weems’ conclusions regarding the
viability of their BP Subsistence Claims and assert that his conclusions are
contradicted by other evidence in this case. To the extent Plaintiffs question the
content of and support for the opinions or reasoning set out in Weems’ report,
Plaintiffs will have an opportunity to explore these issues at trial through crossexamination of Weems and the presentation of countervailing testimony. Moreover,
“questions relating to the bases and sources of an expert’s opinion affect the weight
to be assigned that opinion rather than its admissibility and should be left for the
jury’s consideration.”30 The Court remains cognizant that, notwithstanding Daubert,
“the rejection of expert testimony is the exception and not the rule.”31 Thus, to the
extent that Plaintiffs are attacking the factual basis of Weems’ opinions, the Court is
fully satisfied that, during trial, counsel for Plaintiffs are perfectly able to, and will,
take the opportunity to vigorously cross-examine Weems regarding the bases for his
Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting United
States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., 80 F.3d 1074, 1077 (5th Cir. 1996))
(emphasis in original; internal quotation marks omitted); See, Tyler v. Union Oil Co. of Cal., 304 F.3d
379, 393 (5th Cir. 2002) (“Unocal instead attempts to show that the underlying data – provided by
Unocal – was itself unreliable. This is an issue that Unocal could – and did – raise in crossexamination.”).
31 Johnson v. Samsung Electronics America, Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (Duval, J.)
(quoting Fed. R. Evid. 702 Advisory Committee Notes to 2000 Amendments) (internal quotation marks
Nonetheless, the Court has reviewed Weems’ expert report,32 along with his
December 11, 2020 Declaration and curriculum vitae attached thereto,33 and finds
that the opinions contained in the report are reliable under Fed. R. Evid. 702.
According to the report, Weems based his opinions on his review of “all available
depositions of the named plaintiffs,” as well as his professional experience handling
approximately 12,000 BP Subsistence Claims and personally attending 676 “HUB
visits” and 231 field visits involving claims center personnel interviewing claimants
at their homes or docks.34 Weems also based his opinions upon an additional review
of all the documents referenced in his Declaration, which includes “DHECC
documents and claim forms” and “class representative documents that have been filed
and/or exchanged in this case.”35 Weems opines that, based upon his experience and
his review of the foregoing materials, “many, if not all of [Plaintiffs’] claims would
most likely have been denied or greatly reduced on their lack of merit and based on
the claimant’s own testimony, either through the documents they submitted or during
a Fraud Waste and Abuse (FWA) investigation or Field Visit” because, “Many, if not
most, of the named plaintiffs lacked the knowledge, skill and/or ability to justify the
subsistence claims that they have made.” 36 Weems further opines that even if
R. Doc. 330-2 at pp. 1-11.
Id. at pp. 12-17.
34 Id. at p. 1.
35 Id. at p. 13. The Court notes that Weems also asserts in his report that he relied on “those documents
attached hereto and labeled as ‘Weems Report Exhibits 1-4.” Id. at p. 1. According to the attached
documents, “Weems Exhibit #1” is a copy of Weems’ Declaration dated December 11, 2020 and Weems’
curriculum vitae, “Weems Exhibit #2” is a list of claimant identification numbers “as of 2020,” “Weems
Exhibit #3” is a table with information regarding the status of various “File ID” numbers with the first
and last names for those numbers redacted, and “Weems Exhibit #4” is a copy of the Expert Report of
Allen M. Gresset, one of Plaintiffs’ experts. Id. at pp. 12-63.
36 Id. at p. 2.
Plaintiffs’ BP Subsistence Claims had passed the FWA investigation, they would
have been subject to a field visit if their base award was greater than $10,000, and
“few, if any, of these claims would result in a full recovery.”37 Weems then addressed
the viability of the BP Subsistence Claim filed by nine of the ten named plaintiffs,
and opined that most of them would have either been denied or substantially
Weems further opines that while some Plaintiffs believe their BP Subsistence
Claim was not filed because they only have registration numbers in the DHECC
database, that may not be the case if the claimant had a different lawyer at some
point or filed any claims pro se.39 As such, Weems claims that it is not a given, as
asserted by Plaintiffs’ expert Mr. Gressett, that each of the 1,433 “registration only”
claims were never filed, as they could fall into this category of having multiple
representation.40 Weems also opines that the gap in time between the date on the
joint venture’s denial letter (fall of 2018) and the date claimants received the letter
(spring of 2019) was likely due to the joint venture’s ongoing negotiations with
DHECC during that time to try to have those BP Subsistence Claims evaluated.41
Weems concludes by opining that, “had DHECC accepted the filings and reviewed
them on their merits (or the lack thereof), most, if not all, of these named Plaintiff’s
claims would have ultimately been denied post-review.”42
Id. at pp. 2-3.
Id. at pp. 3-7. The Court notes that Weems did not address the viability of Deborah A. Gaudet’s BP
39 Id. at p. 8.
40 Id. at pp. 8-9.
41 Id. at p. 9.
42 Id. at p. 10.
The Court finds that Defendants have demonstrated that the reasoning and
methodology underlying Weems’ opinions are valid and reliable means for assessing
the potential viability of Plaintiffs’ BP Subsistence Claims. As Defendants point out,
the Field Validation Questions produced by the DHECC Settlement Administrator
confirms the field validation protocols match the standards applied by Weems in his
expert report.43 “The Daubert test is flexible and takes into consideration that an
expert may be qualified by experience to testify on matters within his expertise.”44
Here, Weems’ opinions are largely based on his extensive experience filing BP
Subsistence Claims and attending over 600 HUB visits and over 200 field visits. The
Court finds that Weems’ knowledge of and experience with filing BP Subsistence
Claims, including his attendance at and familiarity with HUB visits and field visits,
is sufficient to withstand a Rule 702 challenge. As such, Plaintiff’s Motion to exclude
the expert testimony of Weems is denied.
For the foregoing reasons, IT IS ORDERED that Plaintiffs’ Motion to Exclude
Expert Testimony of Evan J. Weems45 is DENIED.
New Orleans, Louisiana, July 29, 2022.
WENDY B. VITTER
United States District Judge
R. Doc. 352 at p. 5 (citing R. Doc. 352-1 at pp. 3-7).
Padgett v. Fieldwood Energy, LLC, Civ. A. No. 6:18-CV-00632, 2020 WL 1492836, at *3 (W.D. La.
Mar. 26, 2020).
45 R. Doc. 330.
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