Filed: Oct. 12, 2020
Latest Update: Oct. 13, 2020
Summary: Case: 19-60849 Document: 00515598043 Page: 1 Date Filed: 10/12/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 12, 2020 No. 19-60849 Lyle W. Cayce Clerk Blaine McGill, Plaintiff—Appellant, versus BP Exploration & Production, Incorporated; BP America Production Company, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:18-CV-159 Before King, Stewart, and Southw
Summary: Case: 19-60849 Document: 00515598043 Page: 1 Date Filed: 10/12/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 12, 2020 No. 19-60849 Lyle W. Cayce Clerk Blaine McGill, Plaintiff—Appellant, versus BP Exploration & Production, Incorporated; BP America Production Company, Defendants—Appellees. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:18-CV-159 Before King, Stewart, and Southwi..
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Case: 19-60849 Document: 00515598043 Page: 1 Date Filed: 10/12/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2020
No. 19-60849 Lyle W. Cayce
Clerk
Blaine McGill,
Plaintiff—Appellant,
versus
BP Exploration & Production, Incorporated; BP
America Production Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:18-CV-159
Before King, Stewart, and Southwick, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Blaine McGill brought suit against Defendants-
Appellees BP Exploration & Production, Inc. and BP America Production
Company (“BP”) in this case involving the Deepwater Horizon oil spill. The
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60849
district court granted summary judgment in favor of BP. For the following
reasons, we AFFIRM.
I. Facts & Procedural History
After the Deepwater Horizon oil spill in 2010, BP created a program to
clean up the Gulf of Mexico. This program involved deploying workers in
boats to use dispersants to break up the spilled oil. McGill was a clean-up
worker who alleges he was exposed to oil, dispersants, and decontaminants
while working from May 12, 2010 to July 30, 2010. BP and McGill later
entered into a settlement entitled the Medical Settlement Agreement
(“MSA”), which compensates those affected by the spill and clean-up
efforts. The MSA provides a “Back-End Litigation Option” (“BELO”) for
those alleging “Later–Manifested Physical Conditions” (“LMPCs”)
resulting from their exposure to oil, dispersants, and other substances
associated with the spill. On January 4, 2018, McGill filed a BELO lawsuit in
the Eastern District of Louisiana alleging serious LMPCs caused by exposure
to oil, Corexit EC9500A and Corexit EC9527A dispersants, and other
harmful chemicals. McGill states that he is completely disabled. This suit was
later transferred to the Southern District of Mississippi. On April 23, 2018,
the district court dismissed McGill’s claims related to some of his alleged
conditions but allowed him to proceed on his claims for seven LMPCs:
pneumonia, rhabdomyolysis, chronic obstructive pulmonary disease
exacerbation, synobronchial syndrome, acute respiratory failure, status
asthmaticus, and folliculitis. McGill designated Dr. Steven Stogner, a
pulmonologist, as an expert in his case.
On August 1, 2019, BP moved to exclude Dr. Stogner’s opinion. The
same day, BP also moved for summary judgment. The district court granted
both motions. The district court excluded the opinion of Dr. Stogner, the
only expert who spoke to causation, under Daubert v. Merrell Dow
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Pharmaceuticals, Inc., 509 U.S. 579, 592–93 (1993). The district court noted
that, per the MSA, the parties were permitted to litigate whether the LMPCs
were legally caused by this exposure. The court recognized that both the
parties agreed that the MSA was governed by general maritime law. The
court also agreed with BP that toxic tort law applied to McGill’s cause of
action as well. The district court concluded that without admissible expert
testimony regarding causation, McGill could not establish that his exposure
caused his injuries, and thus BP was entitled to summary judgment. McGill
now appeals, arguing that (1) the district court erroneously excluded Dr.
Stogner’s expert opinion, and (2) the district court erred in applying a toxic
tort causation standard and in granting summary judgment because McGill
failed to meet that standard.
II. Standard of Review
“Whether an individual is qualified to testify as an expert is a question
of law.” Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 614–15 (5th Cir.
2018) (quoting Huss v. Gayden,
571 F.3d 442, 452 (5th Cir. 2009)). We review
the district court’s admission or exclusion of proffered expert testimony for
abuse of discretion.
Id. The district court has broad discretion in determining
whether to admit expert testimony, and thus on appeal we will sustain the
ruling unless it is “manifestly erroneous.”
Id. (quoting Guy v. Crown Equip.
Corp.,
394 F.3d 320, 325 (5th Cir. 2004)). “Manifest error is one that is plain
and indisputable, and that amounts to a complete disregard of the controlling
law.” Id. (quoting
Guy, 394 F.3d at 325).
We review a grant or denial of summary judgment de novo, using the
same standard used by the district court. See Rogers v. Bromac Title Servs.,
L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is appropriate
if the movant demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. See FED. R.
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CIV. P. 56(a). “Unsubstantiated assertions, improbable inferences, and
unsupported speculation are not sufficient to defeat a motion for summary
judgment.” See Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
III. Discussion
McGill first argues that the district court improperly excluded the
expert opinion of Dr. Stogner. He contests the district court’s determination
that Dr. Stogner lacked critical knowledge regarding the level of oil or Corexit
harmful to humans and the extent of McGill’s exposure. He further objects
to the district court’s determination that Dr. Stogner assumed McGill’s
illnesses were caused by exposure because of the proximity in time between
his injuries and the exposure. He maintains that Dr. Stogner’s methodology
is sound and that his conclusions are based on sufficient evidence. We agree
with the district court’s conclusion that Dr. Stogner’s opinion is unreliable
and inadmissible.
For an expert to testify in the form of an opinion, the testimony must
be based on “sufficient facts or data” and must be the product of “reliable
principles and methods.” FED. R. EVID. 702(b)–(c). The expert must also
have “reliably applied the principles and methods to the facts of the case.”
FED. R. EVID. 702(d). The district court is charged with making “a
preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.” Daubert, 509 U.S.
at 592–93. For testimony to be reliable, it must be based on “scientific . . .
knowledge,” grounded in scientific methods, and not mere speculation or
subjective belief.
Id. at 590; see also Moore v. Ashland Chem. Inc.,
151 F.3d 269,
276 (5th Cir. 1998) (“[T]he party seeking to have the district court admit
expert testimony must demonstrate that the expert’s findings and
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conclusions are based on the scientific method, and, therefore, are
reliable.”).
Here, Dr. Stogner’s opinion is not based on sufficient facts, nor is it
the product of a reliable methodology. Although some of the studies Dr.
Stogner relied on are consistent with the notion that Corexit and crude oil
could cause respiratory harm, all have defects in their applicability. None
support the conclusion that Corexit or crude oil cause the illnesses that
McGill suffers from, and none provide conclusive findings on what exposure
level of Corexit is hazardous to humans. 1 Some of the studies are irrelevant,
such as a study pertaining to individuals who were exposed to gases and
fumes during the World Trade Center collapse.
Dr. Stogner’s conclusions do not appear to be the product of reliable
principles, and there is a notable analytical gap between the facts he relies on
and the conclusions he reaches. Dr. Stogner’s deposition fails to address
other potential causes of McGill’s illness and the method by which he rules
them out. Dr. Stogner fails to analyze the conditions of exposure McGill may
have experienced. Per the MSA, the level and duration of exposure may be
litigated. Dr. Stogner was unable to answer questions regarding how much
time McGill spent scooping up oil, how, where, or in what quantity Corexit
was used, how exposure levels would change once substances were diluted in
seawater, or how McGill’s protective equipment would affect exposure.
McGill argues that a more detailed analysis of his exposure is
unnecessary, and cites two Fifth Circuit toxic tort cases in support of his
position: Curtis v. M&S Petroleum, Inc., 174 F.3d 661 (5th Cir. 1999), and
1
Dr. Stogner relied on two studies showing that oil and Corexit caused damage
when applied to cells, but those studies did not address what level of exposure would be
unsafe for humans or what specific illnesses that exposure may cause.
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Clark v. Kellogg Brown & Root, L.L.C., 414 Fed. App’x 623 (5th Cir. 2011)
(unpublished). In both cases, the proffered experts used considerably
stronger causation evidence and more rigorous analytical methods. While the
experts were not required to determine the precise level of exposure in either
case, both experts engaged in analysis of the plaintiff’s workspace to
determine a probable exposure level. In the present case, the record is void
of any showing that Dr. Stogner analyzed McGill’s probable exposure level.
We have upheld the exclusion of expert testimony in several cases that
are more factually similar to McGill’s than to Curtis or Clark. For example,
in Allen v. Pennsylvania Engineering Corp., we affirmed the exclusion of expert
testimony on causation because of its unreliability, its lack of evidence of a
link between the chemical and the precise illness, and because there was no
evidence of the level of exposure. 102 F.3d 194, 195 (5th Cir. 1996). Later, in
Moore v. Ashland Chemical Inc., we upheld the exclusion of an expert who
based his causation opinion on an MSDS sheet showing that exposure can
injure the lungs, a temporal connection, and a “speculative”
study. 151 F.3d
at 271–72, 277–278. In Knight v. Kirby Inland Marine Inc., we affirmed the
exclusion of a highly qualified expert who relied on over fifty studies for his
conclusion that benzene caused the plaintiffs’ cancers, which were all
excluded by the district court for reasons such as failing to isolate benzene as
a cause of cancer and statistically insignificant results.
482 F.3d 347, 350 (5th
Cir. 2007). Given the district court’s legitimate concerns regarding Dr.
Stogner’s research and methodology, we hold that the court did not abuse its
discretion in excluding his opinion.
Finally, McGill argues that the district court improperly applied a
toxic tort standard in granting summary judgment, which requires “scientific
knowledge of the harmful level of exposure to a chemical, plus knowledge
that the plaintiff was exposed to such quantities[.]” Allen v. Pa. Eng’g Corp.,
102 F.3d at 199. He argues that because the MSA is governed by general
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maritime law, we should apply a different causation standard. We hold that
the district court’s grant of summary judgment was proper because McGill
has failed to offer the evidence necessary to prove legal causation per the
MSA under any plausible causation standard. 2 He does not put forward any
non-speculative evidence that Corexit and oil exposure cause the types of
illnesses he suffers from. Since there is no genuine question of material fact
and BP is entitled to judgment as a matter of law, the district court did not
err in granting summary judgment. See Brown, 337 F.3d at 540–541.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s summary
judgment in favor of BP.
2
We do not decide whether the toxic tort standard or another causation standard
applies to BELO litigation because such a determination is unnecessary in light of McGill’s
inability to meet any plausible causation standard.
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