FEAGIN

v.

BP EXPLORATION AND PRODUCTION INC

suffer from chronic ocular and sinus diseases, which they contend were caused by their exposure to toxic chemicals during cleanup work along the Gulf Coast of

Florida after the Deepwater Horizon oil spill.³ Because they were diagnosed after the settlement cutoff date, Plaintiffs brought BELO suits to recover compensation for their injuries. To succeed in this toxic tort context, Plaintiffs must show through expert testimony that a chemical or mixture of chemicals in the oil spill or response efforts caused their conditions. This causation inquiry requires a showing of both

general causation and specific causation. See McClain v. Metabolife Int’l, Inc., 401 F. 3d 1233, 1239 (11th Cir. 2005). In an effort to structure the expert work in a way that would present the general causation issues efficiently and cost-effectively, the

Court selected eight test cases and established a bifurcated procedure by which the general causation issue would be resolved first.4 The above-named Plaintiffs (the Falcon/Lindsey group) identified three experts: Dr. Jerald Cook, Dr. Rachael Jones, and Dr. John Cherrie. BP challenged

the experts under Daubert⁵ and moved for summary judgment on grounds that Plaintiffs failed to designate an admissible expert opinion on general causation. BP argued that Dr. Jones and Dr. Cherrie provided only exposure assessments that were incapable of establishing general causation and were instead intended to provide information that could be used by an expert in forming a general causation opinion.

BP challenged Dr. Cook’s general causation opinion as neither reliable nor helpful, arguing that Dr. Cook (1) failed to identify either a specific chemical alleged to have caused the conditions complained of by Plaintiffs or the level at which such chemical

could cause the complained of conditions and (2) failed to comply with recognized epidemiological methodology for establishing general causation. Plaintiffs opposed the motions and moved to supplement their oppositions with an additional affidavit of Dr. Linda S. Birnbaum. Also, Plaintiffs moved for the admission of their own

experts as a sanction for BP’s spoliation of evidence, arguing that their experts’ opinions should be “deemed reliable and admissible under Daubert,” ECF No. 547 at 2, because BP failed to gather data through biomonitoring and dermal monitoring,

which could have been used to quantify exposure and dose to specific chemicals. After hearing oral arguments and reviewing the extensive record, the Magistrate Judge concluded that Dr. Cook’s opinion failed to comport with Rule 702

and Daubert standards because “[n]owhere in Dr. Cook’s 19-page report does he explain how he reached his causation opinion, and it is clear from the report that Dr. Cook did not identify a harmful dose of any chemical that could cause the [latermanifested physical conditions] at issue and did not follow any epidemiological methodology.” ECF No. 571 at 16 (Master Docket). Therefore, the Report

recommends granting the motion to exclude Dr. Cook’s general causation opinion and granting summary judgment for the lack of expert testimony on general causation. The Report further found even assuming the exposure assessments of Dr. Jones and Dr. Cherrie are reliable, they also failed to identify a harmful dose of any chemical in the weathered oil and their opinions are not helpful without an expert to testify about the harmful level of any particular chemical. The Magistrate Judge rejected Plaintiffs’ belated attempt to supplement the expert reports with the affidavit

of Dr. Birnbaum, who was not timely disclosed as an expert. The Report also recommends denying Plaintiffs’ spoliation motion because the motion is not based on BP’s willful destruction of evidence, but rather on BP’s alleged failure to create

evidence for this litigation. Having considered the Report and Recommendation and the record, the Court has determined that the Magistrate Judge thoroughly considered the motions, the evidence, and the parties’ arguments. There have been no timely objections, and the

Court finds no clear or plain error of fact and or law. The Report and Recommendation correctly resolves the motions and is adopted as the order of the Court and incorporated herein by reference. Accordingly, the Report and Recommendation of the Magistrate Judge dated December 15, 2022, ECF No. 571 (Master Docket), and filed in the individual cases:

Edward C. Dunklin, 5:19-cv-231, ECF No. 53 Jackie Y. Feagin, 3:19-cv-424, ECF No. 64 Phillip B. Gander, 3:19-cv-1983, ECF No. 44 Nicole O. Mills, 3:19-cv-426, ECF No. 59

is ADOPTED and incorporated by reference in this Order. Therefore: 1. BP’s Daubert motion to exclude the opinions of Dr. Jerald Cook, ECF No. 463 (Master Docket), also filed in the individual cases: Edward C. Dunklin,⁵:19-cv-231, ECF No. 43 Jackie Y. Feagin,³:19-cv-424, ECF No. 54 Phillip B. Gander,³:19-cv-1983, ECF No. 38 Nicole O. Mills,³:19-cv-426, ECF No. 53

is GRANTED. 2. Plaintiffs’ motion for leave to supplement Plaintiffs’ opposition to BP’s Daubert motion for Dr. Cook, ECF No. 558 (Master Docket), is DENIED. 3. Plaintiffs’ motion to admit expert testimony based on spoliation of evidence, ECF No. 547 (Master Docket), is DENIED.

4. The Clerk is directed to terminate as MOOT the Daubert motions for Dr. John Cherrie, ECF No. 461 (Master Docket), and Dr. Rachael Jones, ECF No. 464 (Master Docket), which were also filed in the individual cases: Edward C. Dunklin,⁵:19-cv-231, ECF No. 42, 44 Jackie Y. Feagin,³:19-cv-424, ECF No. 53, 55 Phillip B. Gander,³:19-cv-1983, ECF No. 39 Nicole O. Mills,³:19-cv-426, ECF No. 52, 54 5. The Clerk is directed to terminate the following motions related Dr. Cherrie and Dr. Jones as MOOT: a. BP’s motion to strike the supplemental declaration of Dr. Jones, ECF No. 528 (Master Docket); b. BP’s motion to strike the supplemental declaration of Dr. Cherrie, ECF

No. 524 (Master Docket); c. Plaintiffs’ motion for leave to file a supplemental opposition to BP’s motion to exclude Dr. Jones, ECF No. 557 (Master Docket); and

d. Plaintiffs’ motion for leave to file a supplemental opposition to BP’s motion to exclude Dr. Cherrie, ECF No. 559 (Master Docket). 6. BP’s motion for summary judgment, ECF No. 465 (Master Docket),

also filed in the individual cases: Edward C. Dunklin,⁵:19-cv-231, ECF No. 45 Jackie Y. Feagin,³:19-cv-424, ECF No. 56 Phillip B. Gander,³:19-cv-1983, ECF No. 40 Nicole O. Mills,³:19-cv-426, ECF No. 55 is GRANTED. 7. The Clerk is directed to file a copy of this Order in the individual test cases named in the caption, enter judgment in favor of the BP Defendants in each case, tax costs against the Plaintiffs, and close the files. 8. Based on this ruling, the Court also DISMISSES with prejudice the cases listed on Exhibit A, reserving jurisdiction to reopen them in the event this

Order is overturned following an appeal in the test cases. The Clerk is directed to file a copy of this Order in each case listed on Exhibit A and close the files. DONE AND ORDERED this 24th day of January 2023.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE