Collett v. Weyerhaeuser Company et al
ORDER AND REASONS GRANTING 81 Motion to Exclude Physicians. Dr. James and Dr. Cave may not testify as expert witnesses as to causation in this case. Signed by Judge Eldon E. Fallon on 1/8/2021. (Reference: All Cases)(jeg)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOROTHY GAIL COLLETT, ET AL.
WEYERHAEUSER COMPANY, ET AL.
SECTION "L" (5)
ORDER AND REASONS
Before the Court is Defendant Weyerhaeuser’s Motion to Exclude Physicians, R. Doc. 81.
Defendants filed an opposition to Plaintiff’s motion, R. Doc. 118. Plaintiffs filed a reply, R. Doc.
125. On October 14, 2020, the Court held oral argument on this motion. The Court now rules as
Plaintiffs Dorothy Gail Collett and Joshua Collett (“Plaintiffs”) filed suit against
Defendants Weyerhaeuser Company (“Weyerhaeuser”), Thornhill Forestry Service, Inc.
(“Thornhill”), and Lafayette Insurance Company (“Lafayette Insurance”) for damages they
allegedly sustained from chemical exposure at their residence. R. Docs. 24 at 1, 3; 46 at 2–3.
Specifically, Plaintiffs allege that their exposure to formaldehyde in the 1980s left them with
severe immunological and autoimmune disorders and other health problems, forcing them to live
in a highly controlled environment to control their symptoms. R. Docs. 24 at 2; 46 at 2–3. Because
of this prior exposure and subsequent health problems, Dorothy Gail Collett contends she has
communicated regularly with the Louisiana Department of Transportation and Development and
Weyerhaeuser, a timberland company, to ensure these entities avoid spraying chemicals near her
property. R. Doc. 24 at 2. Plaintiffs aver that for 23 years, the Louisiana Department of
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Transportation has refrained from spraying within a two-mile radius of the Collett household, and
for over 18 years, the local Weyerhaeuser office avoided spraying chemicals in this radius. R.
Docs. 24 at 3; 46 at 2. However, Plaintiffs allege that on July 6, 2018, Thornhill, Weyerhaeuser’s
contractor, sprayed multiple chemicals in close proximity to the Collett residence. R. Docs. 24 at
3; 46 at 3. Plaintiffs further contend the Thornhill crew was approached to stop spraying the
chemicals by various entities, but Thornhill refused to stop. R. Docs. 24 at 3; 46 at 3. Moreover,
Plaintiffs contend that the crew returned again the following day and continued spraying. R. Docs.
24 at 3; 46 at 3.
Plaintiffs allege the spraying led to chemical exposure that caused multiple devastating
illnesses to Dorothy Gail Collett and aggravated preexisting conditions in Joshua Collett, requiring
them to seek medical treatment. R. Docs. 24 at 3; 46 at 3. Plaintiffs contend Defendants’ acts and
omissions amount to negligence, gross negligence, and violations of state statutes and regulations.
R. Docs. 24 at 4; 46 at 3–4. Plaintiffs assert they have suffered and continue to suffer severe
physical injury, mental anguish, and financial loss. R. Docs. 24 at 5; 46 at 4–5. Plaintiffs seek
damages, a preliminary injunction prohibiting spraying of chemicals within a 2-mile radius of the
Collett property during the pendency of this action, a permanent injunction prohibiting the
spraying of chemicals within a 2-mile radius of the Collett property, and court costs, expert witness
fees, attorney’s fees and any other costs. R. Docs. 24 at 6–7; 46 at 6.
Weyerhaeuser denies the allegations and presents numerous affirmative defenses,
including but not limited to the following: Plaintiffs’ Petition fails to state a claim upon which
relief can be granted; Plaintiffs’ claims are barred by the applicable prescriptive periods or,
alternatively, by the doctrine of laches; any injuries or damages to Plaintiffs were caused or
contributed to by independent, intervening, or superseding acts or omissions of others for whose
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acts Weyerhaeuser has no liability; any injuries or damages to Plaintiffs were caused, solely or in
part, by Plaintiffs’ own negligence or contributory negligence; Plaintiffs failed to exhaust
administrative remedies; Plaintiffs’ claims are barred by the doctrine of waiver and estoppel; and
Plaintiffs failed to mitigate damages. R. Docs. 30; 49. Thornhill also denies the allegations and
presents numerous affirmative defenses, including but not limited to the following: Plaintiffs’
claims are prescribed and/or time barred; Plaintiffs’ damages are the result of pre-existing
conditions and/or causes unrelated to the incident(s) related to this litigation; Thornhill was not
negligent and/or did not breach any duty owed to Plaintiffs; and the incident(s) sued upon were
caused due to the fault and/or negligence of third parties. R. Doc. 19.
PRESENT MOTION [R. Doc. 81]
On July 13, 2020, Weyerhaeuser filed the instant motion to exclude several physicians
from testifying at trial in this case, R. Doc. 81, and the Court held oral argument on October 14,
2020. Weyerhaeuser moves to exclude testimony of the three doctors who were previously
offered as fact witnesses by Plaintiffs: Dr. Stephanie Cave, Dr. Mark James, and Dr. Stephanie
McCarter. Id. at 1. Weyerhaeuser bases its motion on two primary claims: (1) the doctors were
not properly designated pursuant to the Federal Rules of Civil Procedure and the Federal Rules
of Evidence; and (2) the doctors’ testimony lacks reliability and relevance under Daubert. Id.
Plaintiffs respond arguing that Dr. Cave and Dr. James produced materials that meet the
requirements of the Federal Rules and that their opinions satisfy the relevance and reliability
requirements of Daubert. Id. at 14-20. Therefore, Plaintiffs argue that Dr. James and Dr. Cave
should be allowed to testify as treating physicians. Id. At the September 2, 2020 oral argument
regarding unrelated motions, Plaintiff’s counsel clarified that Plaintiffs are now only offering Dr.
Cave and Dr. James and will no longer seek to introduce Dr. McCarter as an expert in this case.
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Plaintiff’s counsel also noted that the Dr. Cave and Dr. James will only be offered in connection
with Dorothy Gail Collett’s alleged injuries and not Joshua Collett’s. See also R. Doc. 118 at 1.
Weyerhaeuser’s motion will be evaluated in view of this updated information.
LAW AND ANALYSIS
a. Expert Disclosure
Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure requires that “[i]n addition to the
disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any
witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.”
Fed. R. Civ. P. 26(a)(2)(A). Further, “if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party's employee regularly involve
giving expert testimony,” Rule 26(a)(2)(B) requires that the expert disclosure be accompanied by
a written report that is prepared and signed by the witness. Fed. R. Civ. P. 26(a)(2)(B). This rule
contains a list of requirements that an expert report must follow. See id. Fed. R. Civ. P. 26(a)(2)(B)
provides that witnesses for whom expert reports are not required must issue a disclosure containing
the subject matter the witness will testify about, as well a summary of facts and opinions. Fed. R.
Civ. P. 26(a)(2)(C)(i)-(ii). Typically, a case’s scheduling order will include expert disclosure
b. Daubert Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.
Rule 702 is in effect a codification of the United States Supreme Court's opinion in Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert,
the Supreme Court held that trial courts should serve as gatekeepers for expert testimony and
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should not admit such testimony without first determining that the testimony is both “relevant”
and “reliable.” Id. at 589.
As gatekeeper, the trial court has a special obligation to ensure that any and all expert
testimony meets these standards. Id. Accordingly, it must make a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and whether
the reasoning or methodology can be properly applied to the facts in issue. Id. at 592-93. In making
this assessment, the trial court need not take the expert’s word for it. Gen. Elec. Co. v. Joiner, 522
U.S. 136, 147 (1997). Instead, when expert testimony is demonstrated to be speculative and lacking
in scientific validity, trial courts are encouraged to exclude it. Moore v. Ashland Chem., Inc., 151
F.3d 269, 279 (5th Cir. 1998). However, the Court must approach its gatekeeper duty “with proper
deference to the jury’s role as the arbiter of disputes between conflicting opinions.” Viterbo v. Dow
Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987). “As 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.” Id. “Vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the traditional
and appropriate means of attaching shaky but admissible evidence.” Daubert, 509 U.S. at 596.
In satisfying its “gatekeeper” duty, the Court will look at the qualifications of the experts
and the methodology used in reaching their opinions and will not attempt to determine the accuracy
of the conclusion reached by the expert. The validity or correctness of the conclusions is for the
fact finder to determine after the Daubert analysis. Scientific testimony is relevant only if the
expert's reasoning or methodology can be properly applied to the facts in issue, meaning that there
is an appropriate fit between the scientific testimony and the specific facts of the case. Daubert,
509 U.S. at 593, 113 S.Ct. 2786. Scientific evidence is irrelevant, however, when there is too great
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an analytical gap between the data and the opinion proffered. Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).
In Daubert, the Supreme Court set forth a non-exclusive list of factors to consider in
determining the scientific reliability of expert testimony. Id. at 593-95, 113 S. Ct. 2786. These
factors are: (1) whether the theory has been tested; (2) whether the theory has been subject to peer
review and publication; (3) the known or potential rate of error; (4) whether standards and controls
exist and have been maintained with respect to the technique; and (5) the general acceptance of
the methodology in the scientific community. Id. Whether some or all these factors apply in a
particular case depends on the facts, the expert's particular expertise, and the subject of his
testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 138, 119 S.Ct. 1167, 143 L.Ed.2d 238
In the present case the plaintiffs allege that as a result of the defendants' negligence they
were exposed to specific chemicals which has caused certain maladies and they have filed the
current lawsuit against the defendants to recover monetary damages. When the allegations in a
lawsuit involve claims of injuries resulting from chemical exposure, expert medical testimony is
required to prove causation. See, e.g., Million v. Exxon Mobil Corp./Exxon Chem. Co., CV 1700060, 2019 WL 6617400, at *2 (M.D. La. Dec. 5, 2019), aff'd sub nom. Million v. Exxon Mobil
Corp., 20-30002, 2020 WL 7054051 (5th Cir. Dec. 1, 2020); Seaman v. Seacor Marine LLC, 326
F. App'x 721, 723 (5th Cir. 2009) (emphasis added); Allen v. Pennsylvania Eng'g Corp., 102 F.3d
194, 199 (5th Cir. 1996); Talbot v. Elec. Ins. Co., No. CV 17-299-SDD-EWD, 2018 WL 6274314,
at *2 (M.D. La. Nov. 30, 2018) (citing Johnson v. E. I. DuPont de Nemours & Co., 7 So 3d 734,
740 (La. App. 2009)).
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Under Rule 26 of the Federal Rules of Civil Procedure there are two types of medical
experts who are allowed to testify in a court proceeding. First, there are experts who have been
retained by a party and must produce reports pursuant to 26(a)(2)(B), and second, there are experts
such as treating physicians who are not retained and do not have to produce a report. 26(a)(2)(c);
see also Advisory Committee Notes, 1993 Amendment, Subdivision (a), Paragraph (2). In lieu of
a report, the treating physician's records, summaries of the treatment, or a letter or summary report
is produced containing information sufficient to allow opposing counsel to understand the scope
of the expected testimony and supplement the information with a pretrial deposition.
Regardless of whether a doctor is proffered as a retained expert under 26(a)(2)(B) or as a
non-retained expert such as a treating physician, each must meet the standards of Federal Rule 702
and Daubert. See Tajonera, et al. v. Black Elk Energy Offshore Operations, LLC, et al., NO. 130366, 2016 WL 3180776 at *7 (E.D. La. June 7, 2016) (“Treating physicians are no different than
any other expert for purposes of Rule 702; before proffering expert testimony, they must withstand
Daubert scrutiny like everyone else.” (quoting Higgins v. Koch Dev. Corp., 794 F.3d 697, 704 (7th
Cir. 2015)); see also Seymore v. Penn Mar. Inc., 281 Fed. Appx. 300, 301 (5th Cir. 2008); Pipitone
v. Biomatrix, Inc., 288 F.3d 239, 244-245 (5th Cir. 2002). The threshold 702/Daubert inquiry is
whether the expert is qualified to offer relevant and reliable expert testimony on the particular
matter at issue. Wagoner v. Exxon Mobil Corp., 813 F. Supp 2d 771, 798 (E.D. La 2011).
Ultimately, a party seeking to introduce expert testimony must show that the witness is qualified
by education, training, or experience to give relevant and reliable testimony and that (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
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facts of the case. Federal Rules of Evidence, Rule 702; Smith v. Goodyear Tire & Rubber Co., 495
F.3d 224, 227 (5th Cir. 2007).
The Plaintiffs have not produced any 26(a)(2)(B) expert reports for either Dr. Cave or Dr.
James claiming that these two doctors are the Plaintiff's treating physicians. The evidence supports
the conclusion that Dr. James satisfies this status since he or his office colleague has a long history
of treating the Plaintiffs. (James Depo. P 12 L 1-25). However, the evidence does not indicate that
Dr. Cave was a treating physician for either of the plaintiffs. Over ten years prior to the event
giving rise to the present lawsuit, Dr. Cave spoke to Dorothy Gail Collett regarding an unrelated
matter and referred her to another physician. The first time Dr. Cave actually saw Ms. Collett for
her present maladies was over a year following the complained of event, and this was apparently
at the request of Plaintiff 's counsel since he arranged and paid for the visit. Dr. Cave has never
treated Joshua and first saw him after the start of the litigation, and only after his attorney had paid
her and asked her to write a letter for the litigation. Dr. Cave is clearly a retained expert under
Rule 26 and must produce a report before being allowed to testify. Thus, failing to produce a
26(a)(2)(B) report would in itself disqualify Dr. Cave from testifying in this case. But one might
argue that the extensive multi-hour deposition of Dr. Cave removed any potential uncertainty about
her expected testimony and thus removed any prejudice to the defendant and thereby corrected
any deficiency. But even if this requirement were waived, this is not the only problem presented
by Dr. Cave's testimony. She, as well as Dr. James, must also satisfy Rule 702 and the Daubert
standards. It is therefore appropriate to test the proposed testimony of these doctors by conducting
a "Rule 702/Daubert" analysis.
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The threshold 702/Daubert inquiry considers whether an expert has sufficient
qualifications by education, training, or experience to offer relevant and reliable testimony on the
issues presented in the case.
Dr. Cave operates a medical practice and vitamin sales operation in Baton Rouge,
Louisiana, called Cypress Integrative Medicine. She is board-certified in family medicine but
practices integrative and functional family medicine. She supports the use of vitamins rather than
traditional medicines. She has not admitted any patient to a hospital in twenty years (Dr. Cave
Depo. P. 71 L 15). She is not an immunologist, toxicologist, neurologist, or epidemiologist. She
has never testified in a chemical exposure case.
Dr. James is a family medicine doctor with a practice in Folsom, Louisiana, who has seen
Gail Collett since 2010 and Joshua since 1991. (James Depo. P 12 L 1-25). Dr. James is not an
immunologist, toxicologist, pulmonologist, or an expert in pesticides or meteorology. (James
Depo. P.17 L7-25).
A significant issue in this case is whether there is relevant and reliable testimony on the
issue of causation. The Fifth Circuit has a two-step process for examining the admissibility of
causation evidence in toxic tort cases. See Knight v. Kirby Inland Marine Inc., 482 F3d 347, 351
(5th Cir 2007). First, the trial court must determine whether there is general causation. General
causation is the determination of whether a substance is capable of causing a particular injury or
condition in the general population. Once general causation is established then the court must
determine whether there is admissible specific causation evidence.
In determining general causation in chemical exposure cases, courts often look, at least in
part, to whether there are any peer reviewed epidemiological or controlled studies that connect the
alleged malady to an exposure to the chemical at issue. See Johnson v. Arkema, Inc., 685 F.3d 452,
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460 (5th Cir 2012). Dr. Cave and Dr. James both admit that they have not seen or read any
literature, including peer reviewed or controlled studies, that connects an exposure to Arsenal AC
to the litany of symptoms the Colletts allege. (Cave Depo. P 52 L4- 54 L7; James Depo. P 21 L813). Not only do these doctors not know of any research or studies that connect Arsenal and to the
Colletts' symptoms, the doctors never reviewed the Arsenal label or any related information from
the EPA about its toxicity (if any) at the time they saw the Colletts. (Cave Depo. P52 L13- 54 L7;
James Depo. P19 L8-11). Furthermore, they have not reviewed the federal publications that discuss
the degree or level of toxicity of the product at issue. Neither doctor considered any evidence to
determine whether the substance at issue is capable of causing an injury.
Some of the factors courts look to under Daubert to support the specific causation inquiry
are: (1) whether the expert's opinion is based on an accurate dosage or duration data; (2) whether
the expert has identified the specific mechanism by which the product causes the alleged disease;
(3) whether the expert has justifiably extrapolated from an accepted premise to an unfounded
conclusion; (4) whether the expert has adequately accounted for alternative explanations; and (5)
whether the expert intends to testify about matters growing directly out of research he or she has
conducted independent of the litigation. In Re Vioxx Prods Liab Litig., 401 F. Supp. 2d 565, 573
(E.D. La. 2005).
The evidence revealed that Dr. James did not even know what substance was sprayed.
(James Depo. P19 L8-11). Both Dr. Cave and Dr. James admit that they did not know the
concentrations of Arsenal AC sprayed (Cave Depo. P51 L14-24) (James Depo. P 22 L1-4). Dr.
James did not know the method of the spraying. (James Depo. P20 L20- P21 L7). Dr. Cave did
not know the duration of the spraying, and she wrote her February 2020 letter under the belief that
the exposure was still ongoing when Ms. Collett came to see her fourteen months after the spraying
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had ceased. (Cave Depo. P143 L15-25). The doctors do not know how far away the spraying was
happening or the wind direction that day, all elements needed to determine the dose and duration
of the Colletts’ exposure. (Cave Depo. P50, L7-19; P 75 L23-25; P 213 L20- P 214 L14); James
Depo. P 22 L 5-8; P 66 L 15-20). Additionally, neither Dr. Cave nor Dr. James conducted any sort
of testing on either Gail or Joshua Collett to determine if they had a reaction to the specific
chemicals at issue or any other chemicals (Cave Depo. P105 L25- 106 L3; James Depo. P 40 L1619).
Furthermore, one of the factors courts consider under Daubert for specific causation is
whether the expert has adequately accounted for alternative explanations. In addition to a total lack
of information on actual dose and duration of exposure, neither doctor took into account the
possible alternatives. There may be a myriad of possibilities to explain their reported symptoms
that do not involve Arsenal AC. Further, nothing was done by these doctors to eliminate other
causes or even to determine them.
It is clear that other than the Plaintiffs’ complaints, neither Dr. Cave nor Dr. James has
any other basis for concluding that the Plaintiffs’ maladies were caused by their exposure to
Arsenal AC, the product involved in this case. Dr. James indicated that he cannot say with any
degree of scientific certainty that Ms. Collett’s symptoms were caused by Thornhill's spraying.
(James Depo. P 42 L9-14; P 46 L 18-47). Dr. James admitted that Gail Collett suffered from skin,
respiratory infections, and mononucleosis prior to the July 2018 spraying. (James Depo. P 50 L1P54 L18). Certainly, both of these doctors are qualified to practice family medicine, but the critical
issue in this case is whether either should be allowed to testify and give expert testimony as to the
causal relationship between the spraying of the chemical Arsenal AC and the maladies claimed by
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At the outset, however, it must be noted that their education, training and experience
regarding the significance or effect of chemical exposure is somewhat wanting. Neither one is
either an immunologist, toxicologist, neurologist, or epidemiologist, and there is no evidence to
even suggest that either doctor has had any experience with the chemical involved in this case.
Furthermore, neither doctor has provided an expert report as required by Rule 26, and this
alone would justify excluding them, particularly with regard to Dr. Cave. But even if this
requirement were somehow considered satisfied, the methodologies used by Dr. Cave and Dr.
James simply do not satisfy the requirements of Rule 702 and Daubert. Neither doctor knows the
duration of exposure or the dose of exposure. Neither has identified the specific mechanism by
which the product causes the alleged disease. Neither doctor has conducted any tests, consulted
any scientific publications regarding either general or specific causation of any malady related to
the product, considered any other causes of plaintiffs' complaints, or determined whether their
methodology was generally accepted in the scientific community. Therefore, neither may testify
as an expert witness as to the causal relationship between the Plaintiffs’ complaints and exposure
to the product at issue. Dr. James, however, may testify as a fact witness as to the nature of the
Plaintiffs' complaints, the treatment he has administered, and any charges he has made for his
For the aforementioned reasons,
IT IS HEREBY ORDERED that Defendant Weyerhaeuser’s Motion to Exclude
Physicians, R. Doc. 81, is GRANTED. Dr. James and Dr. Cave may not testify as expert witnesses
as to causation in this case.
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New Orleans, Louisiana, this 8th day of January 2021.
U.S. District Judge Eldon E. Fallon
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