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Date: 07-05-2022

Case Style:

Kennard Harrison v. BP Exploration & Production Inc., et al.

Case Number: 17-cv-4346

Judge: Susie Morgan

Court: United States District Court for the Eastern District of Louisiana (Orleans Parish)

Plaintiff's Attorney:

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Defendant's Attorney: Thomas Pollard Diaz, Adrianne Katrine Jakola, Charles B. Wilmore, Devin C. Reid, James Hunter Curtis, Kristopher Scott Ritter, Lance Christian Bullock, Lauren Raili Bridges, Martin L. Roth, Russell Keith Jarrett

Description: New Orleans, Louisiana personal injury lawyers represented Plaintiff, who sued Defendants claiming to have suffered more than $75,000 in damages and/or injuries as a result of an accident.

The instant action is a “B3” case arising out of the 2010 Deepwater Horizon oil spill


in the Gulf of Mexico. B3 cases involve “claims for personal injury and wrongful death due to exposure to oil and/or other chemicals used during the oil spill response (e.g., dispersant).”[5]

Plaintiff alleges he worked as a shipyard technician in Alabama and was responsible for cleanup work after the Deepwater Horizon oil spill.[6] Specifically, as a shipyard technician, Plaintiff entered the tanks of docked ships to scrape and vacuum oil and tar from tanks into collections trucks.[7] As a result, Plaintiff was exposed to crude oil and chemical dispersants for approximately two to three months, which allegedly caused him to develop temporary symptoms of heartburn, chest pain, and yellow discharge from his eyes.[8] Plaintiff filed the instant civil action, seeking a jury trial with respect to his claims of negligence.[9]

Plaintiff relies on Cook to provide medical causation analysis supporting Plaintiff's claim that his exposure to oil and dispersants caused his health problems.[10] It is uncontested that Cook is a qualified expert.[11] What is contested, however, is whether Cook's testimony can withstand a Daubert challenge. Defendants filed the instant motion in limine[12] to exclude Cook's general causation expert testimony and, they argue, if this testimony is excluded, the Court should grant their motion for summary judgment because Plaintiff will lack necessary expert testimony.[13] Alternatively, if Cook's testimony


is not excluded, Defendants ask the Court to grant summary judgment because Plaintiff has not produced expert testimony to establish specific causation.[14]

Motion in Limine Standard

A district court has discretion to admit or exclude expert testimony under the Federal Rules of Evidence.[15] Indeed, the Supreme Court held Rule 702 requires a district court to act as a gatekeeper to ensure “any and all scientific testimony or evidence admitted is not only relevant, but reliable.”[16] Rule 702 governs the admissibility of expert testimony,[17] providing:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(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.

Daubert “provides the analytical framework for determining whether expert testimony is admissible under Rule 702.”[18] The burden of proof rests with the party seeking to present the challenged expert testimony-namely, a preponderance of the evidence standard.[19] Both scientific and nonscientific expert testimony is subject to the Daubert framework, which requires a trial court to make a preliminary assessment “to


determine whether the expert testimony is both reliable and relevant.”[20]

In terms of the reliability inquiry, a series of non-exhaustive factors are considered, including: (1) whether the technique has been tested, (2) whether the technique has been subjected 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.[21] The reliability inquiry must remain flexible, however, as “not every Daubert factor will be applicable in every situation; and a court has discretion to consider other factors it deems relevant.”[22] “Both the determination of reliability itself and the factors taken into account are left to the discretion of the district court consistent with its gatekeeping function under [Rule] 702.”[23]

In terms of the relevancy inquiry, the proposed testimony must be relevant “not simply in the way all testimony must be relevant [under Rules 401 and 402], but also in the sense that the expert's proposed opinion would assist the trier of fact to understand or determine a fact in issue.”[24] The “helpfulness” prong is concerned with ensuring the expert testimony is not only scientifically reliable but also “relevant to the task at hand.”[25]

Motion for Summary Judgment Standard

Summary judgment is appropriate only “if 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.”[26] “An issue is material if its resolution could affect the outcome of the action.”[27]When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”[28] All reasonable inferences are drawn in favor of the non-moving party.[29]There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.[30]

“Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . the material fact may be presented in a form that would not, in itself, be admissible at trial.”[31]

“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.”[32] To satisfy Rule 56's burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim” or “the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.”[33] If the moving party fails to carry this burden, the
motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.[34]

If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant's claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant's claim.[35] If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.[36] Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court's attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”[37] “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”[38]...

* * *

B3 plaintiffs must prove that the legal cause of the claimed injury or illness is exposure to oil or other chemicals used during the response.”[39] Once a plaintiff's diagnoses have been confirmed, the plaintiff has the burden of establishing general causation and specific causation. “‘First, the district court must determine whether there is general causation. Second, if it concludes . . . there is admissible general-causation evidence, the district court must determine whether there is admissible specific-causation evidence.'”[40] “General causation is whether a substance is capable of causing a particular injury or condition in the general population, while specific causation is whether a substance caused a particular individual's injury.”[41] With respect to general causation, “[s]cientific knowledge of the harmful level of exposure to a chemical, plus knowledge that the plaintiff was exposed to such quantities, are minimal facts necessary to sustain the plaintiff's burden in a toxic tort case.

* * *

The American Medical Association's (AMA) Guide to the Evaluation of Disease and Injury Causation provides the expert's threshold inquiry or “first step is to establish or verify the diagnosis ....This step is accomplished by careful review of the available medical records and/or examination of the patient....Exposure becomes relevant only when the presence of disease or illness is established.”[43] This threshold inquiry is designed to “avoid wasting time, effort, and resources pursuing unreasonable hypotheses, while at the same time not missing the opportunity to find previously unrecognized hazards.”[44] The expert must verify the patient's diagnoses before proceeding to general or specific causation.

Outcome: IT IS ORDERED that the motion in limine[83] is GRANTED.

IT IS FURTHER ORDERED that the motion for summary judgment[84] is GRANTED. Judgment is granted in favor of Defendants BP Exploration & Production Inc., BP America Production Company, BP p.l.c., Halliburton Energy Services, Inc., Transocean Holdings LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater Drilling, Inc. and against Plaintiff Kennard Harrison on all claims.

Plaintiff's Experts:

Defendant's Experts:


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