Opinion
Civil Action 17-4269
05-31-2023
JOSH TREME v. BP EXPLORATION & PRODUCTION, INC., ET AL.
SECTION “R” (5)
ORDER AND REASONS
SARAH S. VANCE UNITED STATES DISTRICT JUDGE
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, and their motion for summary judgment. Plaintiff opposes both motions. The Court also considers plaintiff's motion to admit the expert report of Dr. Cook as a sanction for defendants' alleged spoliation, which defendants oppose.
For the following reasons, the Court grants defendants' motion to exclude the testimony of Dr. Cook. The Court denies plaintiff's motion to admit Dr. Cook's report as a sanction for defendants' alleged spoliation. Without Dr. Cook's expert report, plaintiff cannot establish the general causation element of his claim at trial. 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 was exposed to crude oil and dispersants from his work as an offshore cleanup worker. Plaintiff represents that this exposure has resulted in the following health problems: bronchitis, abdominal pain, diarrhea, abdominal pain, nausea, vomiting, gastritis, stomach pain, cellulitis, skin ulcers, abscesses, rash, boils, anemia, hypokalemia, liver abscess, vision loss, light sensitivity, eye burning, and blurred vision.
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. Plaintiff opted out of the settlement. 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.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. Dr. Cook is plaintiff's sole expert offering an opinion on general causation. In his March 14, 2022 report, Dr. Cook utilizes a “general causation approach to determine if a reported health complaint can be from the result of exposures sustained in performing [oil spill] cleanup work.”
The BP parties contend that Dr. Cook's expert report should be excluded on the grounds that that it is unreliable and unhelpful. 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. Plaintiff opposes both motions. Plaintiff contends that defendants' failure to record quantitative exposure data during the oil spill response amounts to spoliation, and seeks the admission of Dr. Cook's report as a sanction. Defendants oppose plaintiff's motion.
The Court considers the parties' arguments below.
II. DEFENDANTS' 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 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. “[F]undamentally 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 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 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, 2021) (noting that B3 plaintiffs 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.” More specifically, he states that his “causation 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.”
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 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, 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 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). Further, the Court notes that plaintiff relies on the March 14, 2022 version of Dr. Cook's report and not on the June 21, 2022 version, which plaintiff's counsel had represented was a “substantially improved” version of the report. Patton v. BP Expl. & Prod., Inc., No. 17-4473, 2022 WL 4104505, at *6 (E.D. La. Sept. 8, 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.The second chapter provides an overview of the Deepwater Horizon oil spill. 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.” After reviewing the literature, Dr. Cook asserts that he selected the epidemiological studies cited in his causation analysis “based on the quality of the study and study design.”