IN RE: DEEPWATER HORIZON BELO CASES

The Magistrate Judge has entered a Report and Recommendation (“R&R), ECF No. 733 (Master Docket), in the above-named Back-End Litigation Option ("BELO") cases,¹ recommending the exclusion of Plaintiffs' general causation experts under Federal Rule of Evidence 702 and Daubert;² the grant of a motion to strike; and the entry of summary judgment in favor of Defendants BP Exploration & Production, Inc. and BP America Production Company (collectively "BP"). The Plaintiffs filed timely objections pursuant to 28 U.S.C. § 636(b)(1), see ECF No. 1 The Court assumes the parties' familiarity with the BELO context and basic facts of the Deepwater Horizon oil spill and resulting multidistrict litigation, which resolved in part through a Medical Benefits Class Action Settlement Agreement (“Settlement”). The Settlement provided a claim payment scheme for all class members who suffered an illness that was diagnosed by the Settlement cutoff date of April 16, 2012. The Settlement also established a separate litigation track for medical benefits class members who did not meet the Settlement cutoff date to litigate whether a Later-Manifested Physical Condition first diagnosed after the settlement date of April 16, 2012, was caused by exposure to chemicals originating from the spill and/or cleanup response activities. 2 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

738. BP responded, ECF No. 739, and has moved to strike new declarations attached to Plaintiffs' objections, ECF No. 740.

When reviewing a magistrate judge's R&R on a dispositive matter, the Court reviews de novo all aspects to which a party has specifically objected and “may accept, reject, or modify, in whole or in part, the findings or recommendations made." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3); Amlong & Amlong, P.A. v. Denny's, Inc., 500 F. 3d 1230, 1245 (11th Cir. 2007) (“the district court is generally free to employ the magistrate judge's findings to the extent that it sees fit"). The undersigned has fully considered all objections de novo and concludes that they should be overruled and the R&R should be adopted.

Briefly summarized, the above-named Plaintiffs each suffer from chronic dermatitis or eczema,³ allegedly caused by toxic chemicals they were exposed to during their cleanup work along the Gulf Coast of Florida after the Deepwater Horizon oil spill. Because their conditions were diagnosed after the cutoff date for claims eligible for payment under the Deepwater Horizon Medical Benefits Class Action Settlement Agreement in the multidistrict litigation (“MDL”), which is pending the Eastern District of Louisiana, Plaintiffs filed individual BELO suits to

recover compensation for their injuries. See supra Note 2. These cases, along with several hundred others, were then transferred from the MDL to this District for litigation, and the Court selected three rounds of bellwether cases to proceed together through discovery. As noted by the Magistrate Judge, this group, which includes individuals alleging chronic dermal conditions, is the final group to proceed through expert discovery. In an effort to structure the expert work in a way that would present the causation issues efficiently and cost-effectively, the Court established a bifurcated procedure by which general causation would be addressed first.⁴

Plaintiffs designated two general causation experts, whose qualifications are not challenged. Dr. Peter Elsner, who has expertise in dermatoxicology and epidemiology, was retained to confirm the diagnosis of each Plaintiff's dermal condition and offer a general causation opinion. In his opinion, exposure to petroleum compounds, dispersants, and aerosols that consist of petroleum hydrocarbons and dispersants may cause acute dermatitis which may develop into chronic dermatitis over time. Plaintiffs also designated Dr. Michael Freeman, a forensic epidemiologist, as a general causation expert. According to Dr. Freeman,

a general causal relationship exists between exposure to chemicals released into the environment during the spill and an increased risk of chronic eczema and dermatitis. Each expert applied epidemiology and considered the Bradford Hill factors.⁵ Each also provided a rebuttal report.

BP challenged the reliability and helpfulness of the expert opinions and sought summary judgment, arguing Plaintiffs have not created a question of fact to sustain their burden on general causation. The Magistrate Judge recommended granting the motions, and Plaintiffs object, with new declarations from both experts.

Preliminarily, BP moves to strike the new declarations as untimely new disclosures filed without leave of court. Plaintiffs argue that the declarations are offered only as rebuttal intended to clarify alleged errors or misstatements within the R&R about the experts' testimony. See ECF No. 738–1, -2. The Court has discretion to consider new materials when ruling on objections to an R&R but declines to do so here. See Williams v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009)

(district courts retain final adjudicative authority and may exercise discretion in deciding whether to consider any new arguments raised in objections to a magistrate judge's report and recommendation or exercise discretion to decline to consider a new argument that was not first presented to the magistrate judge). As Plaintiffs argue, these affidavits are more akin to additional legal argument than new disclosures, but Plaintiffs have ably presented their legal arguments within the objections. Moreover, Plaintiffs' experts had ample time to clarify the record during their depositions and rebuttal reports. The undersigned finds no need for further clarification of the record through additional evidence and declines to consider the new declarations.⁶

Under well-settled law in this Circuit, to succeed in this toxic tort context, Plaintiffs must show that a chemical or mixture of chemicals from the oil spill caused their conditions. See McClain v. Metabolife Int'l, Inc., 401 F. 3d 1233, 1239 (11th Cir. 2005; see also In re Deepwater Horizon BELO Cases, No. 3:19-963, 2020 WL

6689212 at *8 (N.D. Fla. Nov.⁴, 2020), aff'd, 2022 WL 104243 (11th Cir. Jan.¹¹, 2022). In this type of case, the causation inquiry requires a showing of both general causation and specific causation supported by qualified and reliable expert testimony.⁷ See McClain, 401 F. 3d at 1239.

Expert testimony is evaluated under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) and Federal Rule of Evidence 702. Rule 702 requires sufficient facts, specialized knowledge that will help the jury understand a fact in issue, and scientific principles and methods reliably applied. See Fed. R. Evid. 702. The court acts as gatekeeper by evaluating an expert's qualifications, the reliability of methods used, and the helpfulness of the testimony, which must be established by a preponderance of the evidence. See Daubert, 509 U.S. at 597 (Rule 702 “assigns the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand"); Chapman v. Procter & Gamble Distrib., LLC, 766 F. 3d 1296, 1312–13 (11th Cir. 2014) (citing Daubert, 509 U.S. at 592 n.10, requiring "a preponderance of proof").

Plaintiffs raise several objections, arguing mostly that the Magistrate Judge

applied improper legal standards and imposed a heightened burden on Plaintiffs' experts or that she improperly weighed the evidence for “correctness" as opposed to reliability of the methodology. The Court has carefully considered the R&R and the Plaintiffs' objections under de novo review and concludes that the R&R is correct as a matter of law and due to be adopted. The Magistrate Judge applied well-settled principles of law as set forth by the Eleventh Circuit and engaged in an extensive and detailed Daubert review. She painstakingly considered the studies the experts relied on and identified weaknesses and limitations the experts failed to address when discussing the studies or failed to explain or refute in their Bradford Hill evaluations. The Magistrate Judge noted that Plaintiffs cited no studies of chronic dermatitis and concluded that the studies of acute skin irritation symptoms in humans or animals cannot reliably support the conclusion that an association exists between the oil spill exposure and chronic dermatitis or eczema absent further explanation, “particularly where the exposure has long since ended.”⁸ ECF No 112 at 27. As noted by the Magistrate Judge, neither expert attempted to explain under what circumstances, and with what frequency, skin irritation from exposure to oil or dispersants develops into chronic dermatitis. The Magistrate Judge also identified a fatal flaw in that neither expert identified a harmful threshold dose/exposure that can

cause chronic dermatitis and eczema.

To comment briefly on the objections, Plaintiffs' argument that there are strong epidemiological studies showing a statistically significant association is rejected because, consistent with the Magistrate Judge's thorough analysis, the epidemiological evidence only addresses acute dermal outcomes. Thus, the association identified does not involve the injury the Plaintiffs allege, and again there was no effort to reliably explain why an association between exposure and an acute symptom is-from a scientific standpoint—the same as an association between the exposure and a chronic disease. Plaintiffs' experts state in their reports that the connection between the acute condition and the chronic condition is "wellrecognized" or makes “common sense,” without citing scientific support. In rebuttal reports, they cite only to the declarations of Dr. Michael Harbut and Dr. Jessica Herzstein, which were submitted during negotiations to endorse the Settlement Agreement, to close this gap. The undersigned has previously rejected reliance on the settlement declarations and sees no reason to revisit the matter.⁹ An expert's

Plaintiffs also argue that experts using epidemiology are not required to show a harmful threshold dose/exposure or to establish dose response beyond what is inherent in the epidemiological study itself, and that the Magistrate Judge thus required too strict a legal standard. This is incorrect. First, epidemiology requires some consideration of dose response within the studies but also expressly requires it as part of the expert's Bradford Hill analysis to support a causal inference, and, as the Magistrate Judge determined, that was not done here. Regarding the "12 days of work" standard offered by Dr. Freeman, this is not a useful benchmark because it included no quantification of chemicals or amounts that could cause harm. An increase the incidence of a specific medical condition. Therefore, the declarations do not represent a reliable expert opinion for purposes of establishing general causation in this case. In re Deepwater Horizon Belo Cases, 2020 WL 6689212, at *9 (emphasis added). Additionally, Drs. Harbut and Herzstein are not designated experts in this case, and, as the Magistrate Judge noted, if the declarations are cited as a source, then Dr. Elsner and Dr. Freeman should have discussed why they constitute reliable evidence to support their opinions. They did not.

expert must have reliably applied at least one primary methodology. See Chapman, 766 F. 3d at 1308. Because epidemiology was not reliably applied, the absence of a harmful threshold dose/exposure is significant here even if, as Plaintiffs argue, it would only be required for an expert applying a dose-response methodology. Moreover, it is beyond dispute that this standard must be met by Plaintiffs to ultimately prove their case, and the undersigned agrees with the Magistrate Judge that settled law in this Circuit requires it as part of general causation. In toxic tort cases, "knowledge of the harmful level of exposure" to humans generally is a minimal fact that a plaintiff must prove. McClain, 401 F. 3d at 1241. “The expert who avoids or neglects this principle of toxic torts without justification casts suspicion on the reliability of his methodology." Id. at 1242; see also Pinares v. Raytheon Techs. Corp., No. 19-14831, 2023 WL 2661521, at *2 (11th Cir. Mar. 28, 2023)¹⁰ (affirming the exclusion of expert testimony where the “general causation experts, and the articles upon which they relied, didn't determine ‘how much' of the substance needed to 'be used for how long' to cause harm"). The objection is overruled.

Plaintiffs also argue that a lesser "featherweight" causation standard applies

under maritime law, and they seek to extend it as well to the Daubert review, citing Davis v. Hill Eng'g, Inc., 549 F. 2d 314, 331 (5th Cir. 1977).¹¹ The undersigned finds that standard inapplicable here. The "featherweight” causation standard applied in Davis is a maritime rule that applies when an injured seaman seeks recovery from his employer under the Jones Act, which is not at issue in this case. ¹² In the maritime tort context outside of the Jones Act as here, a plaintiff bears the burden to prove that the defendant's negligence was a "substantial factor in bringing about the harm." Harrison v. Flota Mercante Grancolombiana, S.A., 577 F. 2d 968, 984 (5th Cir. 1978); Chavez v. Noble Drilling Corp., 567 F. 2d 287, 289 (5th Cir. 1978); see also McClow v. Warrior & Gulf Nav. Co., 842 F. 2d 1250, 1251 (11th Cir. 1988) (declining to apply "the lesser Jones Act standard of causation to general maritime law claims"). Plaintiffs provide no authority for their suggestion/argument that applying a "featherweight” causation standard in these toxic tort cases or using it to

mitigate the necessity to support their claims with reliable expert testimony or for the Court to conduct a careful Daubert review.

Plaintiffs' argument that the Magistrate Judge inappropriately required "undeniable" proof of causation lacks any support and is completely without merit. All other objections also have been considered de novo and are rejected for reasons stated in the R&R. In sum, the undersigned agrees with the Magistrate Judge's thorough analysis and adopts R&R and incorporates it herein by reference.

Accordingly, it is now ORDERED as follows:

1. The objections are OVERRULED and the Magistrate Judge's Report and Recommendation (ECF No. 733) is ADOPTED and incorporated by reference in this Order. 2. BP's motion to exclude Dr. Elsner (ECF No. 686) is GRANTED.

3. BP's motion to exclude Dr. Freeman (ECF No. 687) is GRANTED.

4. BP's motion to strike (ECF No. 704) is GRANTED only to the extent that the Settlement Agreement from the MDL, and the declarations submitted in support thereof, do not establish general causation.

5. Plaintiffs' motions to exclude BP's experts (ECF Nos. 689, 690, 691, & 692) are DENIED AS MOOT.

6. BP's motion to strike improper expert reports filed as exhibits to Plaintiffs' reply memoranda (ECF No. 722) is DENIED AS MOOT.

7. BP's motion for summary judgment (ECF No. 688) is GRANTED.

8. BP's motion to strike expert declarations filed with Plaintiff's Objections (ECF No 740), is GRANTED consistent with this Order. 9. The Clerk is directed to file a copy of this Order on the Master Docket, and in each of the above-named individual cases, terminate all pending motions, enter judgment in favor of BP, tax costs against Plaintiffs, and close the files.

DONE AND ORDERED this 30th day of September 2024.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE