Certain Underwriters at Lloyd's London and Certain Insurance Companies subscribing To Policy Nos. JHB-CJP-1903(A), B0509M0334412, B0180E121624, Manti Exploration, LP, Shoreline Southeast, LLC, Ankor E&P Holdings Corporation, Dune Properties, Inc., Manti E v. United States Steel Corporation and United States Steel Tubular Products, Inc.

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

FIRST CIRCUIT

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.