NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2018 CA 0592
CERTAIN UNDERWRITERS AT LLOYD' S LONDON AND CERTAIN INSURANCE COMPANIES SUBSCRIBING TO POLICY NOS. JHB- CJP- I 903( A), B0509M0334412, BO I 80E 1226249 ET AL.
VERSUS
UNITED STATES STEEL CORPORATION AND UNITED STATES TUBULAR PRODUCTS, INC.
DATE OF JUDGMENT: ' SEP 2 7 2019
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT NUMBER 125577, DIVISION A, PARISH OF LAFOURCHE STATE OF LOUISIANA
HONORABLE JOHN E. LEBLANC, JUDGE
James Clifton Hall, III Counsel for Plaintiffs -Appellants George H. Lugin, IV Certain Underwriters at Lloyd' s Karen Lynn Rosenberg London and Certain Insurance William P. Maines Companies Subscribing to Policy Nos. Samuel J. Dolan JHB- CJP- 1903( A), B0509M0334412, Houston, Texas B0180E122624, Manti Exploration, LP Shoreline Southwest, LLC, Ankor Joseph L. Waitz, Jr. E& P Holding Corporation, Dune Houma, Louisiana Properties, Inc., Manti Equity Partners, LP, Manti, LP, Manti Exploration and Loretta G. Mince Production, Inc., Manti Exploration
Jeanette A. Donnelly Operating, LLC, San Isidro Rebecca Sha Development Co., LC, Leevill West Kathryn J. Johnson Energy, LLC, CC Bay, LLC, Winn New Orleans, Louisiana Exploration Company, Inc., C. Douglas Jamba, LLC and D & C Energy Resources, Inc. k 9W Christopher H. Riviere Counsel for Defendants -Appellees Todd M. Magee United States Steel Corporation and Thibodaux, Louisiana United States Steel Tubular Products, Inc.
Ronald G. Franklin Houston, Texas
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED. CHUTZ, J.
In this products liability case, the plaintiffs appeal a summary judgment
dismissing their products liability claims against defendants, as well as a ruling of
the district court granting defendants' motion in limine to exclude the opinion
testimony of two of plaintiffs' expert witnesses. For the following reasons, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
In July 2013, a blowout occurred in an oil well being drilled by Manti
Exploration Operating, LLC (" Manti") in Lafourche Parish. The blowout resulted
from a perforation in a I I" inch metal casing pipe located 8, 729 feet below ground.
As a result of the blowout, Manti eventually abandoned the well after plugging it
with cement. Before the well was plugged, a caliper tool was run down the wellbore
to generate a caliper' log.
On July 24, 2014, Manti, Certain Underwriters at Lloyd' s London, 2 et al., and
numerous other plaintiffs' ( collectively " Certain Underwriters") filed a suit for
damages against United States Steel Corporation and United States Steel Tubular
Products, Inc. ( collectively " U.S. Steel"). Certain Underwriters alleged the blowout
was caused by a defect in a casing pipe manufactured by U.S. Steel.
Casing pipe from multiple manufacturers, including U.S. Steel, was used in
the wellbore. Two different types of casing pipe were used, consisting of seamless
The caliper tool used in this case is a 60 -finger device used to detect small changes in the interior surface condition of tubing or casing.
2 According to the petition, Certain Underwriters are " underwriting syndicates at Lloyd' s and insurance companies" that provide insurance coverage for the losses incurred as a result of the blowout and, therefore, are subrogated, in whole or in part, to the claims of the Interest Owners of the Manti well.
3 The additional plaintiffs were the following " Interest Owners" in the Manti well: Manti Exploration, LP; Shoreline Southeast, LLC; Ankor E& P Holdings Corporation; Dune Properties, Inc.;Manti Equity Partners, LP; Manti, LP; Manti Exploration and Production, Inc.; Manti Operating Company; San Isidro Development Company, LC; Leeville West Entergy, LLC; CC Bay, LLC; Winn Exploration Company, Inc.; C. Douglas Jamba, LLC; and D& C Energy Resources, Inc.
Cl pipe and ERW (" Electric Resistance Welded") pipe. ERW pipe contains a seam
where the sheet metal is welded together down the length of the pipe.
In order to support its claims against U.S. Steel, Certain Underwriters relied
on the opinions of two metallurgists, Simon Bellemare and Thomas Eagar
collectively " the experts") to meet its burden of proving a defective ERW casing
pipe (joint #140) manufactured by U.S. Steel caused preferential wear that led to the
blowout in the Manti wellbore. The experts issued a joint report on June 3, 2015,
and Drs. Bellemare and Eagar each issued a supplemental report on November 30,
KIM61
In their reports, the experts opined that a manufacturing defect, consisting of
a step, 0. 04 to 0. 08 [ inch] in height, on the interior surface of that particular casing
joint # 140]" was the cause of the preferential wear that led to the casing pipe
perforation. Specifically, they concluded the step at joint #140 caused the tool joint
in the drill string to become fixed or stuck on a vertical line inside the casing pipe,
causing preferential wear that reduced the thickness of the steel in successive casing
pipe segments below joint #140, ultimately leading to a perforation in the pipe. The
experts further opined that a defect such as the step could not occur in seamless
casing pipe. On that basis, they concluded the step must have occurred in an ERW
casing pipe. U.S. Steel admitted all the ERW casing pipe used in the wellbore was
U.S. Steel product.
On June 9, 2017, U.S. Steel filed a motion in limine to exclude the experts'
testimony regarding several opinions, including their opinion on causation, on the
following grounds: they were unqualified to render opinions on causation since they
were not qualified in the field of petroleum engineering; their methodology was
unreliable; and, their opinions were speculative, based on insufficient data, and
failed to take adequate account of alternate explanations for the casing pipe wear
that led to the blowout. A hearing on the motion in limine was held on June 28,
4 2017. Neither Dr. Bellemare nor Dr. Eagar testified at the hearing, although their
original and supplemental reports and excerpts from their respective depositions
were introduced into evidence. At the conclusion of the hearing, the district court
granted U.S. Steel' s motion to exclude Drs. Bellemare and Eagar' s testimony. The
district court signed a written order in accordance with his ruling on July 7, 2017.
U.S. Steel subsequently filed a motion for summary judgment, arguing
Certain Underwriters would be unable to prove essential elements of their products
liability claim without the testimony of the experts. Following a hearing, the district
court agreed with U.S. Steel' s position and granted summary judgment dismissing
Certain Underwriters' damage claims. In its written reasons for judgment, the
district court concluded Certain Underwriters failed to present any admissible
evidence that a defect existed in casing pipe manufactured by U.S. Steel ( existence
of defect), the alleged defect in the casing pipe caused the Manti well blowout
causation), or that U.S. Steel manufactured the allegedly defective casing pipe
identification as U.S. Steel product) Certain Underwriters has now appealed,
raising two assignments of error.
ASSIGNMENTS OF ERROR
1. The district court erred by failing to apply the correct legal standards on expert qualification and reliability, and by unilaterally weighing the experts' opinion.'
2. The district court erred in granting summary judgment as a result of its erroneous decision to exclude the testimony of Certain Underwriters' experts.
4 The district court' s grant of U.S. Steel' s motion in limine is interlocutory in nature and generally not appealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings, in addition to review of the final judgment. Cajun Constructors, Inc. v. EcoProduct Solutions, LP, 15- 0049 ( La. App. 1st Cir. 9/ 18/ 15), 182 So. 3d 149, 155, writ denied, 15- 1908 ( La. 11/ 20/ 15), 180 So. 3d 1287.
5 APPLICABLE LAW
Admissibility ofExpert Testimony:
The standard for admissibility of expert testimony established by the United
States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
5795 113 S. Ct. 27865 125 L.Ed b.2d 469 ( 1993), is now codified in La. C. E. art.
article 702. Lee v. Louisiana Board of Trustees for State Colleges, 17- 1433 ( La.
App. 1st Cir. 3/ 13/ 19), So. 3d , 2019 WL 1198551 at * 6. Article 702
provides as follows:
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.
1) 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;
2) The testimony is based on sufficient facts or data;
3) The testimony is the product of reliable principles and methods; and
4) The expert has reliably applied the principles and methods to the facts of the case.
Under Daubert, the trial court is charged with the duty of performing a
gatekeeping function to ensure that the expert testimony is not only relevant, but also
reliable. 5 To ensure reliability, Daubert requires an expert' s opinions to be
grounded in methods and procedures of science, rather than subjective beliefs or
unsupported speculation. Devall v. Baton Rouge Fire Department, 07- 0156 ( La.
App. 1st Cir. 11/ 2/ 07), 979 So. 2d 500, 502. The factual basis for an expert' s opinion
5 In fulfilling its gatekeeper role, the trial court may consider various factors, including: ( 1) the testability or refutability of the expert' s theory or technique; ( 2) whether the technique has been subjected to peer review and/ or publication; ( 3) the known or potential rate of error; and ( 4) whether the technique or methodology is generally accepted by the relevant scientific community. The Daubert approach, however, is a flexible one, and the list of factors is not exclusive. Daubert, 509 U.S. at 593- 95, 113 S. Ct. at 2796- 97; Robertson v. Doug Ashy Building Materials, Inc., 14- 0141 ( La. App. 1st Cir. 12/ 23/ 14), 168 So. 3d 556, 567, writ denied, 15- 0365 ( La. 4/ 24/ 15), 169 So. 3d 364.
2 determines the reliability of the testimony. Lee, So. 3d at , 2019 WL
1198551 at * 7.
In Cheairs v. State ex rel. Department of Transportation and Development,
03- 0680 ( La. 12/ 3/ 03), 861 So.2d 536, 542, the Louisiana Supreme Court adopted
the following test for determining whether the admission of expert testimony is
proper: ( 1) Is the expert qualified to testify competently regarding the matters he
intends to address?; ( 2) Is the methodology by which the expert reaches his
conclusions sufficiently reliable as determined by the sort of inquiry mandated in
Daubert?; (3) Will the testimony assist the trier -of f-act, through the application of
scientific, technical, or specialized expertise, to understand the evidence or to
determine a fact in issue? Generally, the test of competency of an expert is the
expert' s knowledge of the subject about which he is called upon to express an
opinion. Lee, So. 3d at , 2019 WL 1198551 at * 7. Ultimately, the trial
court must determine whether the expert testimony has a reliable basis in the
knowledge and experience of the relevant discipline. Daubert, 509 U.S. at 592, 113
S. Ct. at 2796; Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 149, 119
S. Ct. 11679 1175, 143 L.Ed.2d 238 ( 1999).
Moreover, there is a crucial difference between questioning the methodology
employed by an expert witness and questioning the application of that methodology
or the ultimate conclusions derived by the expert from that application. Lee,
So. 3d at , 2019 WL 1198551 at * 7; Robertson, 168 So. 3d at 567. A trial court
may not decide what expert evidence to admit based on its own credibility
determinations and resulting resolution of disagreements between the experts. Lee,
So. 3d at , 2019 WL 1198551 at * 7.
A trial court is accorded broad discretion in determining who should be
permitted to testify as an expert. Comment ( d) ( 1988) to La. C.E. art. 702; Cheairs,
861 So. 2d at 541. An appellate court should not disturb a trial court' s ruling on the admissibility of expert opinion evidence absent an abuse of discretion. Cheairs, 861
So.2d at 541; MSOFCorporation v Exxon Corporation, 04- 0988 (La. App. 1 st Cir.
12/ 22/ 05), 934 So. 2d 708, 717, writ denied, 06- 1669 ( La. 10/ 6/ 06), 938 So. 2d 78.
Motion for Summary Judgment:
A motion for summary judgment is a procedural device used when there is no
genuine issue of material fact for all or part of the relief prayed for by a litigant. A
summary judgment is reviewed on appeal de novo, with the appellate court using the
same criteria that govern the district court' s determination of whether summary
judgment is appropriate; i.e., whether there is any genuine issue of material fact, and
whether the movant is entitled to judgment as a matter of law. La. C. C. P. art.
966( A)(3); Schultz v. Guoth, 10- 0343 ( La. 1/ 19/ 11), 57 So. 3d 1002, 1005- 06.
Louisiana Code of Civil Procedure article 966( D)( 1) places the initial burden
of producing evidence at the hearing on the motion for summary judgment on the
mover, who can ordinarily meet that burden by submitting affidavits or by pointing
out the lack of factual support for an essential element in the opponent' s case. Once
the motion for summary judgment has been properly supported by the moving party,
the failure of the non-moving party to produce evidence of a genuine issue of
material fact dispute mandates the granting of the motion. Schultz, 57 So. 3d at 1006.
MOTION IN LIMINE
On appeal, Certain Underwriters argues that in ruling on the motion in limine,
the district court failed to properly exercise its role as a gatekeeper and instead
weighed the evidence to conclude it did not agree with the experts' opinions.
Essentially, Certain Underwrites contends the district court improperly questioned
the experts' conclusions rather than the methodology they used in reaching their
conclusions. Certain Underwriters argues this court, therefore, should apply a de
novo standard of review on appeal since the district court applied the wrong legal
standard in ruling on the motion in limine.
0 At the conclusion of the hearing on the motion in limine, the district court
gave oral reasons for its ruling. Our review of the district court' s reasons indicates
the court' s ruling was based primarily on concerns about the reliability of the
experts' opinions. One of the district court' s particular concerns was the experts'
lack of experience and knowledge in the area of drilling operations. The district
court also expressed concern about the reliability of the experts' opinions because in
formulating their conclusions, they did not consider areas of the wellbore where
there was damage to the casing pipe other than the area in immediate proximity to
where the perforation in the casing pipe occurred. The district court specifically
stated it was not basing its decision on the disagreement between the various experts,
but on the fact that it had not been shown that the experts' " methods in reaching their
conclusions [ were] reliable, testable, provable and consistent with some scientific
method beyond a guess — a speculation."
Our review of the district court' s reasons indicates the ruling was based on
concerns regarding the reliability of the experts' opinions and methodology, rather
than on disagreement with the conclusions the experts reached. We find no legal
error by the district court in its ruling on the motion in limine. Accordingly, we will
review the ruling under an abuse of discretion standard. See Cheairs, 861 So. 2d at
541; MSOF Corporation, 934 So. 2d at 717.
The parties do not dispute the perforation in the casing pipe that led to the
blowout was caused by substantial wear. The disputed issue is what caused the
casing pipe wear to occur. Through its motion in limine, U.S. Steel sought to exclude
testimony from the experts as to their opinion that preferential wear to the casing
pipe was caused by the drill string becoming fixed on the alleged step. Certain
Underwriters intended to present this testimony to establish the essential element of
causation. Initially, we note both experts are metallurgist who are faculty members at the
Massachusetts Institute of Technology and have extensive experience in metal
failure analysis. Dr. Eagar also has extensive knowledge and experience regarding
the manufacture of steel piping. U.S. Steel does not challenge the experts'
qualifications in the fields of metallurgy and materials engineering. Rather, the
pertinent issue is whether the experts' experience and expertise qualified them to
render a reliable opinion on the cause ofthe wear that occurred in the wellbore casing
pipe. Solely for the purpose of considering this issue, we will assume the step
alleged by the experts actually existed.'
Based on our review of the evidence presented, we find no abuse of discretion
in the district court' s exclusion of the experts' testimony with respect to their opinion
on the cause of the casing pipe wear that led to the perforation. Following the
hearing on the motion in limine, the district court concluded the experts' opinion on
causation was unreliable and speculative due to their lack of expertise and
experience in drilling operations.
The record supports the district court' s conclusion. For instance, even though
a large portion of the experts' opinion on causation was based on caliper log data,
6 U.S. Steel also challenged the methodology employed by the experts in reaching their opinions as to the existence and size of the alleged step. As previously noted, we have assumed the step existed as opined by the experts for the sake of argument. Thus, we pretermit consideration of
whether the evidence established the experts' opinions as to the existence and size of the step were based on a methodology generally accepted by the relevant scientific community. However, we note the following evidence was presented at the hearing on the motion in limine.
The experts' June 3, 2015 report states the experts performed a regression analysis on the caliper log data to determine the size of the alleged step on joint #140 and the adjacent joints. At another point in the June 3, 2015 report, the experts state they confirmed the existence of a step anomaly on joint # 140 and the absence of a step on the adjacent joints of casing pipe "[ b] y regression analysis." The report contains little explanation of how the experts performed the regression analysis.
U.S. Steel presented the testimony of Dr. John Olivas, a mechanical engineer and material scientist who formerly worked for NASA. Dr. Olivas testified the experts did not " use a scientifically known reliable method" in reaching their opinions. Dr. Olivas further stated that regression analysis can take a number of different forms, and in his entire time in the engineering field (over twenty years), he has never seen a regression analysis used to opine on such as small feature as the alleged step ( 0. 04 to 0. 08 inch).
10 the experts failed to consider the accuracy rating of the caliper tool in reaching their
opinions. The manufacturer specifications for the accuracy of the caliper tool was
plus or minus 0. 03 inch. Therefore, when the accuracy rating of the caliper tool is
considered, the actual size of the step could have been as small as 0. 01 to 0. 05 inch
rather than 0. 04 to 0. 08 inch as opined by the experts.
Certain Underwriters strenuously argues it is not the accuracy rating of the
caliper tool that is important, but its resolution rating.' In his deposition, Dr.
Bellemare specifically testified the experts' analysis was based on the resolution of
the caliper tool as opposed to its accuracy. Certain Underwriters contends that while
the caliper tool' s accuracy controls in determining the correct diameter of the casing
pipe, its resolution controls in determining " whether there is any change in the
internal diameter of the casing from one point on the interior surface to an
immediately adjacent point." Further, Certain Underwriters points out the
measurement of 0. 04 to 0. 08 inch is well within the 0. 005 inch resolution rating of
the caliper tool used.
We believe the experts' exclusive reliance on the caliper tool' s resolution,
while ignoring its accuracy rating, casts doubt on the reliability of their opinion on
causation. It appears the experts should have considered both the caliper tool' s
accuracy rating and its resolution capacity in formulating their opinions. The experts
opined the size of the step inside the casing pipe was 0. 04 to 0. 08 inch in size. In
their June 3, 2015 report, the experts state " [ b] ased on the step size and the geometry
of the contact, we find that the step on joint #140 was sufficient to cause the initiation
and continuation of preferential wear." ( Emphasis added.) When the caliper tool' s
accuracy rating is considered, however, it is possible the step was actually only 0. 01
7 The accuracy of a measuring device is its " degree of conformity to some recognized standard value." Webster' s Third New International Dictionary ( 3rd ed. 1961). The resolution of a
measuring device is the smallest number that it can measure or record.
11 to 0. 05 inch in size rather than 0. 04 to 0. 08 inch. Because the experts' analysis and
calculations did not include the possibility the step was smaller than they postulated,
the reliability of their opinion that the drill string could have and, in fact, did become
fixed on the step, leading to preferential wear, is called into question. The experts'
analysis failed to exclude the possibility that if the step had been as small as 0. 01 to
0. 05 inch, the drill string might not have become fixed on the smaller step.
Moreover, it appears the experts not only failed to consider the caliper tool' s
accuracy rating, but also were unfamiliar in general with the operation of the
particular caliper tool used. The record shows that after the experts issued the June
39 2015 report, several emails were sent by an employee of Dr. Bellemare' s
consulting firm to the manufacturer of the caliper tool seeking information on how
the caliper tool functioned. The employee inquired in one email whether the caliper
tool " can rotate while moving up a wellbore and taking measurements" and, if so,
whether the rotation was " accounted for and how." The emails demonstrate a lack
of knowledge as to the operation and capacities of the caliper tool as utilized in the
wellbore.
Finally, we agree with the district court that the experts' lack of experience or
knowledge of drilling operations also affected the reliability of their opinion on
causation. The experts' experience with drilling operations was limited. Dr. Eagar
did not claim to have expertise in drilling operations. Additionally, Certain
Underwriters' drilling expert, Gregory Sones, gave the following deposition
testimony highlighting Dr. Bellemare' s lack of even basis knowledge concerning
drilling operations.
Dr. Bellemare] doesn' t know a lot about —he' s learning as we go, but he doesn' t know a lot about the tools, thefunction of drilling a well.
I spend a lot of time explaining what, say, a bid is.... I' m just
using it as an illustration.
12 So, [ Dr.] Bellemare has a pretty good vocabulary and he has a pretty good definition of a lot of those things that we use. So, if I made a list of all the things that we use in the oil patch, he could probably give me a definition of most of them but he doesn' t know how you apply them.
So, a lot of our discussions were related to what was going on, on the well. How were they drilling? What is drilling? What is mud? How does that work? Were they turning the drill string and how were they doing that? How fast? What is this weight -on -bit business? You know, all these kind of things that give him the understanding of what the operations were in the well.
Emphasis added.]
The experts' opinion on causation was based on their theory that the drill
string became fixed on the step, initiating preferential wear that led to the perforation
in the casing pipe. Therefore, the manner in which the drill string moved inside the
casing pipe obviously was a matter of critical importance. Dr. Eagar admitted in his
deposition that the manner of the movement within the casing pipe affected the
analysis of whether the step caused the drill string to become stuck, thereby leading
to preferential wear.
When the experts were questioned during their depositions concerning how
the drill string moved, Dr. Eagar simply stated " it precesses around the ... inside of
the casing," and Dr. Bellemare indicated the drill string oscillated around the edge
of the casing. However, Mr. Sones, Certain Underwriter' s drilling expert, indicated
the movement of the drill string inside the casing pipe is much more complicated.
According to his deposition testimony, the drill string not only oscillates around the
casing but also moves up and down. Additionally, he testified the " oscillation may
be completely symmetrical, meaning it follows the ID of the casing string all the
way around, or it may randomly move" or " jump across." Mr. Sones testified he
told the experts his opinion in this case was that " the drill string was moving around
in the drill —inside the casing in a random manner." Thus, a review of the evidence
indicates the experts lacked a complete understanding of the drill string' s
13 movements, as those movements were described by Certain Underwriters' own
drilling expert.
We believe the district court correctly concluded specialized knowledge of
drilling operations was necessary for the experts to render reliable opinions on
whether the drill string could have become fixed on such a small fixture within the
wellbore as the alleged step, as well as to eliminate possible alternative causes for
the wear in the casing pipe. A reliable opinion on causation and the exclusion of
possible alternate causes, including normal drilling operations, required
consideration and understanding of a multitude of specialized factors. These factors
include how the drill string operated and moved within the casing pipe, drill string
tension, torque, hook load, tool joint conditions, the lubricity of the drilling mud, the
temperature of the fluids, the products in the fluids, the speed at which the drill string
is turning, the drill string weight, rotating speed, rotating time, dogleg severity, and
the angle of drilling.
From the experts' reports and deposition testimony, it is clear they relied on
the drilling expertise of Mr. Sones in matters related to drilling due to their own lack
of experience and expertise in such matters. In their June 3, 2015 report, the experts
made little effort to eliminate possible alternate causes for the casing pipe wear that
could have resulted from the drilling operations. Dr. Bellemare' s supplemental
report of November 30, 2016, contains a single paragraph discussing the elimination
of possible alternate causes for the casing pipe wear. The report states the experts
eliminated the possibility the casing pipe wear could have occurred without the step
for several reasons.' However, a review of the reasons reveals they are based on
8 The enumerated reasons were: how infrequently preferential wear has been observed in this type situation; the data showed the wear started at a fixed point on joint #140 then started drifting around the circumference; the drilling operation would have caused the contact orientation to change over time because of the wobbling of a long, slender string subjected to torque and variable fiction; and the wellbore inclination was not sufficient to cause a preferential wear profile.
14 experience and expertise in drilling operations the experts do not possess. This fact,
as well as the experts' reliance on Mr. Sones' opinions, is illustrated by one of the
reasons enumerated by Dr. Bellemare for eliminating possible alternate causes,
which was that the " wellbore inclination was not sufficient to cause a preferential
wear profile according to Mr. Sones." ( Emphasis added.) Moreover, in his
deposition, Dr. Bellemare admitted he did not analyze whether the casing pipe wear
could have occurred in the absence of the alleged step.
Under Article 702, expert testimony must rise to a threshold level of reliability
in order to be admissible. See Lee, So. 3d at , 2019 WL 1198551 at * 6;
Jackson v. Suazo- Vasquez, 12- 1377 ( La. App. 1st Cir. 4/ 26/ 13), 116 So. 3d 773,
778. In this case, the district court determined the experts lacked a reliable basis
grounded in knowledge and experience of drilling operations to render an opinion
on the cause of the casing pipe wear. Because we agree the experts' lack of
knowledge and experience in drilling operations precluded them from reliably
opining on the cause of the wear in the casing pipe that led to the perforation in the
pipe or from eliminating possible alternate causes for the casing pipe wear, we find
no error in the district court' s exclusion of the experts' opinion on causation.9
MOTION FOR SUMMARY JUDGMENT
Certain Underwriters argues the district court improperly granted summary
judgment predicated on its erroneous ruling excluding the experts' testimony.
Certain Underwriters further contends the district court would not have granted the
summary judgment dismissing its claim if the court had not erroneously excluded
the experts' testimony.
9 We pretermit consideration of whether the district court ruling was erroneous with respect to the experts' opinions other than causation. We believe the district court' s ruling excluding the experts' opinion on causation is dispositive of U.S. Steel' s motion for summary judgment, making it unnecessary to consider the admissibility of the experts' other opinions.
15 The Louisiana Products Liability Act ( LPLA) establishes the exclusive
theories of liability for manufacturers for damages caused by their products. La.
R.S. 9: 2800. 52. One of the essential elements a plaintiff must prove under the LPLA
is that his damages were caused by the manufacturer' s defective product. See La.
R.S. 9: 2800. 54A; . Tack v. Alberto- Culver USA, Inc., 06- 1883 ( La. 2/ 22/ 07), 949
So. 2d 1256, 1258.
Thus, in order to succeed in its claim, Certain Underwriters must prove its
damages were caused by a defective U.S. Steel casing pipe. U.S. Steel pointed out
the lack of factual support to prove this causation element of Certain Underwriters'
claim. At that point, the burden shifted to Certain Underwriters to produce factual
support sufficient to establish the existence of a genuine issue of material fact
regarding causation. See La. C. C. P. art. 966( D)( 1); Schultz, 57 So. 3d at 1006.
Certain Underwriters failed to present admissible evidence sufficient to meet this
burden.
In the absence of the experts' opinion that the drill string became fixed on the
alleged step, causing wear in the casing pipe that led to the perforation in the pipe,
Certain Underwriters presented insufficient evidence to raise a genuine issue of
material fact regarding causation. Therefore, the district court properly granted
summary judgment dismissing Certain Underwriters' damage claims against U.S.
Steel. See Schultz, 57 So. 3d at 1006.
CONCLUSION
For the above reasons, we affirm both the district court' s January 29, 2018
summary judgment dismissing the damage claims of plaintiffs, Certain
Underwriters, against defendants, U.S. Steel, and the district court' s July 7, 2017
ruling granting U.S. Steel' s motion in limine. All costs of this appeal are cast on
Certain Underwriters.
AFFIRMED.
16 CERTAIN UNDERWRITERS 2018 CA 0592 AT LLOYD' S LONDON
VERSUS COURT OF APPEAL
UNITED STATES STEEL STATE OF LOUISIANA CORPORATION
Welch, J. dissenting.
TOI respectfully disagree with the majority opinion in this matter. On the motion in limine, U.S. Steel failed to prove that the opinions of Simon Bellemare
and Thomas Eager (" the experts") on causation in this case were unreliable. See
Robertson v. Doug Ashy Bldg. Materials, Inc., 2010- 1552 ( La. App. 1St Cir.
10/ 4/ 11), 77 So. 3d 339, 359, writs denied, 2011- 2468, 2011- 2430 ( La. 1/ 13/ 12), 77
So. 2d 972, 973, writs not considered, 2011- 2433, 2011- 2432 ( La. 1/ 13/ 12), 77
So. 3d 973, 974 ( on a defendant' s motion seeking to exclude the plaintiffs' expert' s
opinion on causation under Daubert, the defendant must prove that the expert' s
opinion is unreliable). Thus, the trial court abused its discretion in granting the
motion in limine, and further, it erred in granting U.S. Steel' s motion for summary
judgment and in dismissing the plaintiffs' claims against U.S. Steel. Therefore, I
would reverse the July 7, 2017 and January 29, 2018 judgments of the trial court.
Although the majority concludes that the experts' lack of knowledge and
experience in drilling operations precluded them from reliably opining on the cause
of the wear in the casing pipe that led to the perforation in the pipe or from
eliminating possible alternate causes for the casing pipe wear, neither the
majority' s nor the trial court' s conclusions are based on the validity of the experts'
methodology, but rather go to the weight of the evidence and their qualifications,
which are issues that do not bring Daubert into play. See MSOF Corporation v. Exxon Corporation, 2004- 0988 ( La. App. 1St Cir. 12/ 22/ 05), 934 So. 2d 708, 718,
writ denied, 2006- 1669 ( La. 10/ 6/ 06), 938 So. 2d 78.
For instance, the majority states that "[ w] e believe the expert' s exclusive
reliance on the caliper tool' s resolution, while ignoring its accuracy rating, casts
doubt on the reliability of their opinion on causation" and that "[ i] t appears the
experts should have considered both the caliper tool' s accuracy rating and its
resolution capacity in formulating their opinions." However, the record does not
establishthrough expert testimony or other evidence presented on behalf of U.S.
Steel— that consideration of both the caliper tool' s accuracy rating and its
resolution capacity must be considered in formulating an expert opinion or for an
expert' s methodology to be valid. Furthermore, to the extent that the experts
should have relied on both, this factor affects only the weight to be afforded the
experts conclusions and may serve as a basis for attack by U.S. Steel on cross-
examination at trial, but it does not make their opinion evidence unreliable or
inadmissible under Daubert. See MSOF Corp., 934 So. 2d at 720.
In addition, the majority also finds that " the experts' lack of experience or
knowledge of drilling operations also affected the reliability of their opinion on
causation." However, it is well- settled that Daubert concerns the admissibility of
the expert' s opinion and not his qualification as an expert in the area tendered. Id.
at 718. To the extent that the experts had to rely on the drilling expertise of Mr.
Sonnes in matters related to drilling, it is also well- settled that an expert may
provide testimony based on information obtained from others ( including other
experts) and the character of the evidence upon which an expert bases an opinion
affects only the weight to be afforded that expert' s conclusion— not its
admissibility under Daubert. See MSOF Corp., 934 So. 2d at 720.
Although a trial court is afforded broad discretion in determining whether
expert testimony is reliable under Daubert, that discretion is premised upon an understanding that Daubert is intended to protect the sanctity of the fact finding
process by assessing the validity of the methodology employed by an expert and
not the expert' s application of that methodology or his conclusions derived from
the application of that methodology. Robertson v. Doug Ashy Building
Materials, Inc., 2014- 0141 ( La. App. 1St Cir. 12/ 23/ 14), 168 So. 3d 556, 579, writ
denied, 2015- 0365 ( La. 4/ 24/ 15), 169 So. 3d 364. Issues involving the credibility
of an expert, the weight to be given to the expert' s testimony, and the resolution of
conflicts between expert opinion testimony are to be assessed at trial by the trier of
fact. Id.
In this case, in excluding the experts' opinion, both the majority and the trial
court' s conclusions are based on objections that U.S. Steel had with regard to the
causation opinion of the experts, which did not relate to their methodology, but
rather, involved their conclusions derived from applying their methodology to the
facts of the case, and thus, pertained to their credibility and the weight of their
opinion testimony. The evidence offered established that the experts
methodology— the use of caliper log data— is standard practice and that the experts
used a well-known and peer-reviewed adhesive wear equation to prove that a step
in the size range identified on the caliper log could cause the preferential wear and
resulting casing failure. Thus, their opinion was thus reliable under the standards
set forth in Daubert. Indeed, the defendants own experts acknowledged that the
regression analysis employed by the experts was reliable. Therefore, the trial court
abused its discretion in granting U.S. Steel' s motion in limine and I would reverse
the trial court' s July 7, 2017 judgment in this regard.
Furthermore, when the expert evidence wrongfully excluded by the trial
court is considered in reviewing U.S. Steel' s motion for summary judgment,
Certain Underwriters met is burden of producing factual support sufficient to
establish the existence of a genuine issue of material fact regarding causation. As such, summary judgment was improvidently granted and I would reverse the
January 29, 2018 judgment of the trial court.
Thus, I respectfully dissent.