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Williams v. BP Exploration & Production, Inc.

United States District Court, E.D. Louisiana

December 5, 2019

BENJAMIN JAMES WILLIAMS, Plaintiff
v.
BP EXPLORATION & PRODUCTION, INC., ET AL., Defendants

         SECTION "E" (5)

          ORDER AND REASONS

          SUSIE MORGAN, UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Strike Diagnosing Physician's Expert Report and Trial Testimony for Failure to Comply with F.R.C.P. 26(a)(2)(B) and Rec. Doc. No. 35 (hereinafter, the “Motion to Strike”), filed by Defendants BP Exploration & Production Inc. and BP America Production Company.[1] Plaintiff Benjamin Williams opposes this motion.[2] Defendants filed a reply.[3]

         Also before the Court is a Motion for Summary Judgment Based on Lack of Expert Medical Evidence of Diagnosis and Causation filed by Defendants.[4] Plaintiff opposes this motion.[5] Defendants filed a reply.[6]

         For the reasons that follow, the Motion to Strike and the Motion for Summary Judgment are both GRANTED.

         BACKGROUND

         This case arises from Plaintiff's alleged exposure to harmful substances and chemicals after the Deepwater Horizon oil spill.[7] Plaintiff alleges that during the Deepwater Horizon incident, he was employed by Shamrock Management, LLC and Environmental Safety & Health Consulting Services, LLC to perform response activities.[8]During this work he allegedly was exposed to “oil, other hydrocarbons, and other substances released from the MC252 Well, Corexit EC9500, Corexit EC9527, and other dispersants and decontaminants.”[9] According to Plaintiff, he was diagnosed on July 17, 2014 with chronic damage to conjunctiva, chronic rhinosinusitis, and chronic contact dermatitis at the site of contact.[10]

         On October 19, 2018, Plaintiff filed this Back-End Litigation Option (“BELO”) action against Defendants, pursuant to the terms of the Medical Benefits Class Action Settlement Agreement (the “MSA”) in In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (commonly referred to as “MDL 2179”).[11], [12]Plaintiff alleges his diagnosed medical conditions complained of herein were legally and proximately caused by his exposure to the substances and chemicals during his response activity efforts.[13]

         On October 11, 2019, Plaintiff disclosed Dr. Scott A. Haydel as a treating, non-retained medical expert[14] and, as a result, did not produce an expert report authored by him.[15] Plaintiff's counsel did provide to Defendants a fill-in-the-blank diagnostic form created by counsel and signed by a nurse practitioner, Eva Hvingelby, on July 17, 2014 (“Hvingelby Form”).[16] On October 29, 2019, Defendants filed a Motion in Limine to require Plaintiff to comply with Federal Rule of Civil Procedure 26(a)(2)(B) by providing a written report from Dr. Haydel.[17] Plaintiff did not oppose this motion. The Court granted Defendants' motion and ordered:

Dr. Haydel must provide a report complying with Federal Rule of Civil Procedure 26(a)(2)(B) by no later than Monday, November 11, 2019. Failure to comply with this Order will result in Dr. Haydel's testimony as a retained expert being excluded at trial for failure to comply with Rule 26(a)(2)(B).[18]

         On November 11, 2019, Plaintiff provided to Defendant Dr. Haydel's one paragraph expert report dated October 30, 2019 (the “Original Report”).[19] Attached to the Original Report were the curriculum vitae of Dr. Haydel, a list representing Dr. Haydel has never given any prior expert testimony, and an invoice for the amount paid to Dr. Haydel to render the one paragraph expert report.[20]

         On November 12, 2019, Defendants filed the instant Motion to Strike[21] and Motion for Summary Judgment.[22] Plaintiff failed to file any opposition to either motion by the deadline imposed by the Local Rules for the Eastern District of Louisiana.[23] During a telephone status conference held on November 25, 2019, Plaintiff's counsel made an oral request for leave of Court to file oppositions to Defendants' motions.[24] Plaintiff's counsel did not seek leave to file a revised expert report, likely because they knew the request would be refused. The Court granted Plaintiff's request for leave to file oppositions to the motions.[25] On November 27, 2019, Plaintiff filed an opposition to the Motion to Strike.[26]Without leave to do so, Plaintiff attached to his opposition a revised report from Dr. Haydel, dated November 27, 2019 (the “Revised Report”).[27] Plaintiff also filed an opposition to the Motion for Summary Judgment.[28]

         LAW AND ANALYSIS

         I. Law

         A. Rule 26(a)(2)(B), Rule 37(c)(1), and Rule 16(b)

         Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), an expert report must contain the following:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.[29]

         “Under Rule 26(a), expert reports must explain the ‘how' and ‘why' of the expert's opinions with specificity.”[30] Failure to abide by Rule 26(a)'s disclosure requirements prompts sanctions under Federal Rule of Civil Procedure 37(c).[31]

         Rule 37(c)(1) provides “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . . the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.”[32] Additionally, “[t]he language of Rule 37(c)(1) gives the court broad discretion to fashion a remedy, as the court ‘may impose other appropriate sanctions.'”[33]

         A party violates Rule 26(a)(2)(B) by failing to timely disclose an expert report required under Rule 26(a)(2)(B)[34] or by disclosing an expert report that fails to contain all the components required by Rule 26(a)(2)(B).[35] In determining whether a violation of Rule 26 is harmless or substantially justified, a court considers: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose.”[36]

         Pursuant to Federal Rule of Civil Procedure 16(b), a court's scheduling order “may be modified only for good cause and with the judge's consent.”[37] “The good cause standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'”[38] Courts consider four factors in determining whether the party seeking relief has met his burden: “‘(1) the explanation for the failure to [timely move for leave]; (2) the importance of the [revised expert report]; (3) potential prejudice in allowing the [revised expert report]; and (4) the availability of a continuance to cure such prejudice.'”[39]

         B. Rule 702

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony:

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 of the case.[40]

         The United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., [41] provides the analytical framework for determining whether expert testimony is admissible under Rule 702. Under Daubert, courts, as “gatekeepers, ” are tasked with making a preliminary assessment of whether expert testimony is both relevant and reliable.[42] The party offering the expert opinion must show by a preponderance of the evidence that the expert's testimony is reliable and relevant.[43]

         The reliability of expert testimony “is determined by assessing whether the reasoning or methodology underlying the testimony is scientifically valid.”[44] In Daubert, the Supreme Court enumerated several non-exclusive factors that courts may consider in evaluating the reliability of expert testimony.[45] “These factors are (1) whether the expert's theory can or has been tested, (2) whether the theory has been subject to peer review and publication, (3) the known or potential rate of error of a technique or theory when applied, (4) the existence and maintenance of standards and controls, and (5) the degree to which the technique or theory has been generally accepted in the scientific community.”[46]

         The Supreme Court has cautioned that the reliability analysis must remain flexible: the Daubert factors “may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.”[47] Thus, “not every Daubert factor will be applicable in every situation . . . and a court has discretion to consider other factors it deems relevant.”[48] The district court is offered broad latitude in making expert testimony determinations.[49]

         As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight of the evidence rather than its admissibility and should be left for the finder of fact.[50] “Unless wholly unreliable, the data on which the expert relies goes to the weight and not the admissibility of the expert opinion.”[51] Thus, “[v]igorous crossexamination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”[52] The Court is not concerned with whether the opinion is correct but whether the preponderance of the evidence establishes that the opinion is reliable.[53]“It is the role of the adversarial system, not the court, to highlight weak evidence.”[54]

         II. Motion to Strike

         A. The Revised Report is Stricken as Untimely

         Pursuant to this Court's initial Scheduling Order entered on March 15, 2019, Plaintiff's deadline to produce expert reports to defense counsel was October 11, 2019.[55]On that date Plaintiff disclosed Dr. Haydel but characterized him as a treating, non-retained physician and did not produce an expert report authored by him. At Plaintiff's request, the Court extended Plaintiff's deadline to disclose Dr. Haydel's written expert report to November 11, 2019.[56] Plaintiff provided the Original Report to Defendants on November 11, 2019. Then, two and one-half weeks later, without leave of Court, Plaintiff filed the Revised Report on November 27, 2019.[57]

         Plaintiff did not move to extend his expert disclosure deadline beyond November 11, 2019. Now, in effect, Plaintiff is requesting the deadline be extended to November 27, 2019, when the Revised Report was provided. Rule 16(b) provides a “schedule may be modified only for good cause and with the judge's consent.”[58] Under Rule 16(b), Plaintiff as the movant has the burden of showing good cause.[59] Plaintiff offers no explanation as to why he failed to timely comply with his expert report deadline, even though he has known his original expert report deadline for over eight months, since the original Scheduling Order was docketed on March 15, 2019, and he knew his extended report deadline, November 11, 2019, for two and one-half weeks before providing the Revised Report.[60] Instead, Plaintiff simply attached the Revised Report to his opposition. As Defendants point out in their reply, Plaintiff “hopes to dodge his obligation to meet this ‘good cause' standard by slipping a new expert report in as an exhibit to his opposition memorandum, ” but “[t]his sort of end run around the rules of civil procedure is inappropriate and is contrary to the Court's prior Order.”[61]

         The other Rule 16(b) factors likewise weigh against extending the deadline for providing the expert report. The importance of the Revised Report is low because, for the reasons explained below, even if the Court extended the deadline for producing the Revised Report, the report would be excluded for failure to comply with Federal Rule of Civil Procedure 26. Defendants would be prejudiced if the Revised Report were admitted. Finally, Plaintiff has had more than sufficient time to comply with the Court's Scheduling Order but has failed to do so. The complaint was filed on October 19, 2018[62] and the Scheduling Order setting the trial for February 10, 2020 was issued on March 15, 2019.[63] A continuance is not justified in this case.

         The Plaintiff has not met his burden of proof of showing good cause to extend his expert report deadline to November 27, 2019. The Revised Report is untimely. The Motion to Strike as to the reports is GRANTED.[64]

         B. The Revised Report is Stricken for Failure to Comply with Rule 26(a)(2)(B)

         Even if the Court were to extend the deadline for Plaintiff to produce Dr. Haydel's report, the Revised Report would have to meet the requirements of Federal Rule of Civil Procedure 26.

         1. Dr. Haydel's Revised Report includes the following opinions:[65]

a. Chronic Damage to Conjunctiva:
• “At the time of my medical examination of Mr. Williams, it is my opinion that he was suffering from Chronic Damage to Conjunctiva”;[66] and
• “[I]t is my opinion that it is more likely than not that Mr. Williams' diagnosis of chronic damage to conjunctiva is causally related to his exposure to oil and chemicals during the eighty days he worked as a clean-up worker.”[67]
b. Chronic Rhinosinusitis:
• “At the time of my medical examination of Mr. Williams, it is my opinion that he was suffering from Chronic Rhinosinusitis”;[68] and
• “[I]t is my opinion that it is more likely than not that Mr. Williams' diagnosis of chronic damage to conjunctiva is causally related to his exposure to oil and chemicals during the time he worked as a clean-up worker.”[69]
c. Chronic Dermatitis at the Site of Contact:
• “I diagnosed Mr. Williams with Chronic Dermatitis at the site contact (i.e. on both of his wrists, ankles and feet)”;[70] and
• “[I]t is my opinion that it is more likely than not that Mr. Williams' diagnosis of chronic damage to conjunctiva is causally related to his exposure to oil and chemicals during the time he worked as a clean-up worker.”[71]
2. Dr. Haydel states that each of his above opinions is based on:
a. Dr. Haydel's “physical examination” of Plaintiff, including:
i. With respect to Plaintiff's Chronic Damage to Conjunctive diagnosis, Dr. Haydel noted he observed “‘Mild Redness' in his Conjunctiva and that his Surrounding Structures (including the upper and lower eyelids) were ‘Pink.'”;[72]
ii. With respect to Plaintiff's Chronic Rhinosinusitis diagnosis, Dr. Haydel noted he observed “drainage discharge, post nasal drip, nasal stuffiness as well as facial sinus pain, pressure and fullness. According to Mr. Williams, he had been experiencing those symptoms for more than 12 consecutive weeks after his exposure to oil and chemicals on May 30, 2010.”[73] Dr. Haydel also noted he “performed a Fiberoptic evaluation.”[74]; and iii. With respect to Plaintiff's Chronic Dermatitis diagnosis, Dr. Haydel noted he “personally observed diffuse hives, wheals and erythematous patches, all of which are various raised, red and/or swollen areas of the skin - on both of his wrists, ankles and feet.”[75]
b. The temporal aspect of Plaintiff's conditions, including:
i. With respect to Plaintiff's Chronic Damage to Conjunctive diagnosis, Dr. Haydel noted “Mr. Williams had not suffered from [Chronic Damage to Conjunctiva] at any time prior to his exposure to oil and chemicals, and then manifested symptomology shortly after his exposure”;[76]
ii. With respect to Plaintiff's Chronic Rhinosinusitis diagnosis, Dr. Haydel noted “Mr. Williams had not suffered from [Chronic Rhinosinusitis] at any time prior to his exposure to oil and chemicals, and then manifested symptomology shortly after his exposure”;[77] and
iii. With respect to Plaintiff's Chronic Dermatitis diagnosis, Dr. Haydel noted “Mr. Williams had not suffered from [Chronic Dermatitis] at any time prior to his exposure to oil and chemicals, and then manifested symptomology shortly after his exposure.”[78]
c. Dr. Haydel's review of Plaintiff's “Work History, ” “Ocular History, ” “Sinus History, ” and “Dermatologic History, ” provided by Ms. Eva Henriette Hvingelby, the nurse practitioner who filled out Plaintiff's diagnoses form supplied by his lawyers;[79]
d. Dr. Haydel's “discussions” with Plaintiff;[80]
e. “[T]he length of time over which Mr. Williams experienced symptoms”;[81] and
f. Dr. Haydel's “education, experience and training.”[82]

         There are numerous deficiencies in the proffered bases for Dr. Haydel's opinions.

         First, in the Original Report, Dr. Haydel opined: “[i]t is my professional opinion that Mr. Williams' diagnoses could possibly be related to chemical exposure from the BP clean-up efforts.”[83] However, in the Revised Report, Dr. Haydel changes his opinion. He states “it is my opinion that it is more likely than not that [each of Plaintiff's diagnoses are] causally related to his exposure to oil and chemicals during the time he worked as a clean-up worker.”[84] Dr. Haydel offers no explanation for this substantial change in the certainty of his opinion. This is particularly striking considering that Dr. Haydel's examination of Plaintiff was on July 17, 2014 and the Revised Report is dated November 27, 2019, and there is no indication Dr. Haydel has seen Plaintiff in the interim. Furthermore, Dr. Haydel makes no reference to any expert reports on general causation to support his opinion on causation.

         Second, it is not clear how, when, or by whom the Hvingelby Form was filled out and how much of the information included was personally gathered by or confirmed by Dr. Haydel. Dr. Haydel's role in gathering the information reflected on the Hvingelby Form, and how thoroughly he reviewed the information, is further called into question by his erroneous signing of the respiratory portion of the form certifying that he finds “it to be more like than not that this diagnosis is causally related to the patient's direct exposure to chemicals during the BP clean-up work, ”[85] when in fact there were no symptoms of any respiratory problems.[86] Defendants represent the form was filled out by a nurse practitioner, Hvingelby.[87] Plaintiff does not refute this characterization or clarify who filled out the form. Dr. Haydel admits the nurse practitioner filled out the vast majority of the form, stating she filled out the “Work History, ” “Ocular History, ” “Sinus History, ” and “Dermatologic History” sections of the form.[88]

         Third, the “Work History” section of the Hvingelby Form simply states the dates during which Plaintiff worked as a clean-up worker during the oil spill and that his “primary wor[k]” duties included “pulled in contaminated booms from the water and scooped up oil and tar balls by the shoreline in Venice, LA.”[89] This section of the form covers only Plaintiff's work history during the eighty-day period he worked on the BP oil spill; it says nothing about work Plaintiff did before or after working on the BP recovery effort. Further, this section does not specify Plaintiff's other work duties during the oil spill, nor how much time he spent pulling in the booms as opposed to his other work duties.

         Fourth, Dr. Haydel does not describe the content of his “discussions” with the Plaintiff, nor how these “discussions” informed Dr. Haydel's opinions.

         Fifth, Although Dr. Haydel states he bases his opinions in part on “the length of time over which Mr. Williams experienced symptoms, ” he fails to specify that exact length of time for all three conditions. The Hvingelby Form only specifies that Plaintiff reported his sinus symptoms have “persisted for longer than 12 consecutive weeks.”[90] With respect to Plaintiff's ocular and dermatologic symptoms, the report specifies when Plaintiff began experiencing these symptoms but does not specify the period of time over which Plaintiff's ocular and dermatologic symptoms persisted. Similarly, Dr. Haydel bases his diagnoses in part on the fact that Plaintiff “had not suffered from [each condition] at any time prior to his exposure to oil and chemicals, and then manifested symptomology shortly after his exposure.”[91] This information is not in the Hvingelby Form and Dr. Haydel does not disclose where he obtained it. Rather, Dr. Haydel acknowledges he did not “review any medical records concerning any prior medical treatment which Mr. Williams may have received, ” and has not “reviewed any subsequent medical records for any medical treatment Mr. Williams may have received.”[92]

         Sixth, Dr. Haydel states he bases his opinions in part on his “education, experience and training.”[93] Dr. Haydel did his residency in Family Practice and from 1998 to the present he has had a private family practice in Houma.[94] Dr. Haydel has not listed any specialized training in diagnosing or treating injuries caused by exposure to oil and chemicals. Neither does Dr. Haydel cite expert reports or any medical literature in support of his opinions.

         The Court finds the Revised Report fails to identify the “basis and reasons” for Dr. Haydel's opinions, as required by Rule 26(a)(2)(B)(i), because it fails to explain the “how” and “why” of Dr. Haydel's opinions with any specificity.[95] As discussed above, the Revised Report does not supply any of the requisite information Dr. Haydel would need to determine whether Plaintiff's exposure caused his conditions, such as: the specific substances to which Plaintiff was exposed; the concentration of the products to which Plaintiff was exposed; the frequency and duration of Plaintiff's exposure to the substances; Plaintiff's complete work history and whether Plaintiff was exposed to toxic substances in any other contexts before or after the BP incident; and Plaintiff's medical history. In the Original Report, Dr. Haydel merely states Plaintiff experienced “chemical exposure.”[96] In the Revised Report, Dr. Haydel states Plaintiff's conditions were caused by his “exposure to oil and chemicals.”[97] The Hvingelby Form likewise does not specify the chemicals to which ...


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