672 F.Supp.3d 483
S.D. Ohio2023Background
- Adkins worked as a tankerman on Marathon’s inland barge fleet (2008–2012) and alleged cumulative low‑level hydrogen sulfide (H2S) exposure caused permanent pulmonary injury.
- On May 26, 2012 Adkins experienced an acute episode aboard M/V Garyville (light‑headedness, headache, shortness of breath); his H2S badge did not record an alarm and he was transported to a hospital and later stopped working for Marathon.
- Post‑incident care included pulmonology evaluation (Dr. Glenn Gomes) diagnosing ‘‘toxic fume inhalation’’ and later prescribing bronchodilators and supplemental oxygen; Adkins sought maintenance and cure and filed suit asserting Jones Act, unseaworthiness, and maintenance & cure claims.
- Adkins disclosed two key medical experts (Dr. Charles Pue and treating pulmonologist Gomes) whose causation opinions evolved or lacked Rule 26(a)(2)(B) detail and peer‑reviewed support; Pue issued untimely supplemental bases during deposition/Daubert proceedings.
- Marathon moved for summary judgment and to exclude/limit plaintiff’s experts; the court held a Daubert hearing, excluded Pue’s and Gomes’s causation opinions under Rule 26/Rule 37 and Daubert, and concluded Adkins lacked admissible evidence of both general and specific causation.
- The court granted Marathon’s motion for summary judgment, dismissed Adkins’s Second Amended Complaint with prejudice, and denied Adkins’s partial summary judgment motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admissible evidence shows general causation (low‑level, repeated H2S can cause chronic pulmonary injury) | Pue and Gomes can show H2S (and airway remodeling in asthmatics) causes permanent decline; treating physician opinion suffices for some causation issues | No reliable literature or methodology shows low‑level cumulative H2S causes chronic pulmonary disease; plaintiff’s experts fail Rule 26/Daubert standards | Excluded plaintiff experts’ general causation opinions; plaintiff failed to present admissible general causation evidence |
| Whether admissible evidence shows specific causation (H2S exposures aboard M/V Garyville caused Adkins’s condition) | Experts (Pue relying on Gomes) tie timing, records, and clinical findings to barge exposures | Experts did not conduct reliable differential diagnoses or disclose bases; no admissible opinion tying exposure to plaintiff’s decline | Excluded specific causation opinions; plaintiff cannot establish specific causation |
| Whether treating physician (Gomes) may testify on causation without a full Rule 26 expert report | Gomes is a treating physician and may testify about diagnosis and causation within treatment scope without full expert report | Gomes was retained/consulted in anticipation of litigation, formed opinions after counsel involvement, and did not produce required report | Court treated Gomes as a retained/traditional expert and excluded his causation testimony for failure to provide a Rule 26(a)(2)(B) report |
| Whether exclusion of plaintiff’s experts is an appropriate sanction and whether summary judgment is warranted | Exclusion is too harsh or harmless because depositions occurred; maintenance & cure is strict liability for sickness aboard ship | Untimely, shifting opinions and undisclosed bases prejudiced Marathon; exclusion under Rule 37 is mandatory absent justification; without expert causation plaintiff cannot meet his burden | Exclusion under Rule 37 was appropriate; without admissible causation evidence summary judgment for Marathon granted on all maritime claims |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden and failure to produce necessary evidence)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (trial court gatekeeping for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (Daubert gatekeeping applies to all expert testimony)
- R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (adequacy of expert reports under Rule 26)
- Pluck v. BP Oil Pipeline Co., 640 F.3d 671 (toxic torts require experts for general and specific causation)
- Fielden v. CSX Transp., Inc., 482 F.3d 866 (when treating physician must provide expert report)
- Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357 (Rule 37 sanctions and mandatory exclusion)
- Jordan v. City of Cleveland, 464 F.3d 584 (when nondisclosure may be harmless if deposition covered the information)
- Thompson v. Doane Pet Care Co., 470 F.3d 1201 (treating expert may elaborate but disclosures must still be sufficient)
- Harville v. Vanderbilt Univ., Inc., [citation="95 F. App'x 719"] (affirming exclusion for failure to produce adequate expert report)