Nestle v. BP Expl. & Prod., Inc.

• Docket Number: CIVIL ACTION NO. 17-4463
• Decision Date: 12 September 2022
• Citation: 627 F.Supp.3d 577
• Parties: Stephen NESTLE v. BP EXPLORATION & PRODUCTION, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

627 F.Supp.3d 577

Stephen NESTLE v. BP EXPLORATION & PRODUCTION, INC., et al.

CIVIL ACTION NO. 17-4463

United States District Court, E.D. Louisiana

Signed September 12, 2022

Paul A. Dominick, Nexsen Pruet, LLC, Charleston, SC, Douglas M. Schmidt, Douglas M. Schmidt, APLC, New Orleans, LA, Jarrett S. Falcon, Jennifer L. Martin, Jeremiah A. Sprague, Timothy John Falcon, Falcon Law Firm, Marrero, LA, for Stephen Nestle.

David W. Leefe, Charles B. Wilmore, Devin C. Reid, Lance Christian Bullock, Russell Keith Jarrett, Liskow & Lewis, New Orleans, LA, Adrianne Katrine Jakola, Martin L. Roth, Kristopher Scott Ritter, Kirkland & Ellis LLP, Chicago, IL, Nena M. Eddy, Liskow & Lewis, Baton Rouge, LA, for BP Exploration & Production, Inc., BP America Production Company, BP p.l.c.

Kerry James Miller, Daniel John Dysart, Paul C. Thibodeaux, Fishman Haygood, LLP, New Orleans, LA, for Transocean Holdings, LLC, Transocean Deepwater, Inc., Transocean Offshore Deepwater Drilling, Inc.

Robert Alan York, Pro Hac Vice, Keely Dulaney Pippin, Travis R. Reed, Reed Smith, Commercial Litigation, Houston, TX, for Halliburton Energy Services, Inc.

SECTION "R" (4)

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,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. 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 after the Deepwater Horizon oil spill beginning in May of 2010.⁴ Plaintiff asserts that he experienced "[c]ontinous exposure [to crude oil or dispersants] in and around Pass Christian, Ship Island & Bay St. Louis, Mississippi."⁵ Plaintiff also represents that this exposure has resulted in the following conditions: blurred vision, vision changes and abnormalities, dry eye syndrome, chronic headaches, dizziness, insomnia, chronic sinus drainage, acute and chronic sinusitis, acute and chronic rhinitis, shortness of breath, chronic bronchitis, chemically-induced asthma, abdominal pains, loss of appetite, nausea, vomiting, weight loss, anxiety, depression, and post-traumatic stress disorder.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 Nestle 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 In his June 21, 2022 report, Dr. Cook utilizes a "general 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.

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, 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). 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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, 113 S.Ct. 2786). This gatekeeping function applies to all forms of expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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, 113 S.Ct. 2786. The aim is to exclude expert testimony based merely on subjective belief or unsupported speculation. See id. at 590, 113 S.Ct. 2786. "[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, 119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 593, 113 S.Ct. 2786). 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, 119 S.Ct. 1167.

"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, 118 S.Ct. 512. 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, 113 S.Ct. 2786. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." 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, 113 S.Ct. 2786. 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."...