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A federal appeals court has underscored the high bar that expert witnesses must meet before a court can connect the dots between exposure and illness, a ruling that could have an impact on insurance claims and toxic tort litigation.

In the case of two workers who claimed they developed sinus problems from cleaning up after the Deepwater Horizon oil rig explosion in 2010, the U.S. 11^th Circuit Court of Appeals last week upheld a lower federal court. The district court in Pensacola, Florida, had excluded the testimony of two plaintiffs’ expert witnesses and granted a judgment in favor of BP, the British Petroleum oil giant that operated the rig in the Gulf of Mexico that killed 11 workers on the rig and polluted beaches from Texas to Florida.

The plaintiffs, Lester Jenkins and Dwight Siples, appealed the district court decision. But the panel of appellate judges agreed almost completely with the district judge. Specifically, the appeals court judges found that the experts failed to identify a minimal level of exposure at which crude oil or dispersants used to mitigate the oil spill is hazardous to humans.

The lower court also “found that the experts failed to identify a statistically significant association between the chronic conditions and exposure to crude oil, assess various studies’ limitations, or meaningfully consider causal factors,” the 11^th Circuit panel wrote in the Oct. 18 opinion. “Because the district court did not abuse its discretion, we affirm the summary judgment against Jenkins and Siples.”

The case was one of thousands of suits brought by people who were hired to scoop tar balls and gunk from Gulf beaches or to clean equipment of the spilled crude oil.

Many workers were granted workers’ compensation indemnity and medical costs. In 2012, BP entered a settlement agreement that provided two other means of recovery, the court explained. People diagnosed with a specific condition, such as acute bronchitis, shortly after the spill could submit a claim for a fixed conpensation amount.

Workers diagnosed after April 2012 could participate in what the courts called “back-end litigation option,” or BELO cases. Thousands of workers, including Jenkins and Siples, filed BELO suits. To help manage the volume of litigation, batches of hundreds of cases were spread between several federal courts.

One bellwether group of cases saw its expert toxicologist’s testimony excluded in 2020. The 11^th Circuit that year upheld that decision, noting that the expert, Dr. Patricia Williams, had failed to establish a level of exposure to the alleged toxins that would cause injury. The U.S. 5^th Circuit made a similar ruling about experts in another batch of BELO cases.

Now, almost four years later, the appellate judges in the Siples and Jenkins case, part of a second bellwether group of BELO cases heard in the Northern District of Florida, in Pensacola, have said their experts were similarly lacking. The plaintiffs’ expert witnesses were Dr. Michael Freeman and Dr. Gina Solomon.

“Like Dr. Williams, neither Freeman nor Solomon identified the harmful level of exposure for crude oil, a dispersant, or the chemicals associated with them,” reads the opinion, written by 11^th Circuit Chief Judge William Pryor.

The plaintiffs’ experts also did not show a dose-response relationship between crude oil and sinusitis, nor did they explain the background risk of the disease. Plaintiffs in these types of cases must show general causation as well as specific causation, the appeals court noted.

The workers’ attorneys had argued that the lower court overstepped its gatekeeping role on experts. A threshold level of a toxin is only relevant to specific causation, not to general causation, the lawyers said.

The 11^th Circuit judges disagreed, citing previous court rulings that have excluded experts on the same grounds.

The district court in the Siples and Jenkins case “applied general-causation principles drawn directly from our precedents, aligned with those of other circuits, and consistent with the reasoning of every other decision in Deepwater Horizon backend-litigation suits,” the opinion notes. “This holding is hardly the kind of misapplication of precedent that chalks up to error, much less a manifest one.”

The 11^th Circuit opinion can be seen here. Plaintiffs’ lawyers and attorneys for BP could not be reached for comment Monday.

Top photo: An oil spill cleanup worker being decontaminated in Louisiana in 2010, a few months after the accident. (AP Photo/Patrick Semansky, File)

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Topics Lawsuits Energy Oil Gas