Adkins v. Marathon Petro. Co., LP, 2024 U.S. App. LEXIS 15240 6th Cir. June 24, 2024):

 [**1]  Brent Adkins worked as a crew member on one of Marathon Petroleum Company's inland river barges. He brought claims against Marathon under the Jones Act and general maritime law asserting that his service on the barge caused his lung function to  [**2]  deteriorate. The district court granted summary judgment to Marathon. For the following reasons, we affirm in part, reverse in part, and remand to the district court.

I.

From 2008 to 2012, Adkins worked on a barge for Marathon on the Ohio River. Before he started work in November 2008, Marathon performed a medical [*2]  examination on Adkins to determine his fitness to work on a barge, as required by the United States Coast Guard at the time Adkins was employed. See 46 C.F.R. § 10.215(a), (d)(1) (2012). During this examination, the Forced Vital Capacity (FVC) of Adkins's lungs measured at just 72.4% of predicted value. The Coast Guard's Navigation and Vessel Inspection Circular (NVIC) 04-08, released in September 2008, advised that any seaman whose FVC is below 75% of predicted value and who is contemporaneously suffering from one or more respiratory conditions should undergo additional tests to assess pulmonary function before being cleared for service.¹ Nevertheless, Marathon cleared Adkins to work on the barge without restriction without subjecting him to further testing. Adkins underwent another medical examination in March 2010 so that he could receive a tankerman's license from the Coast Guard. This examination revealed that Adkins's FVC had declined to 69% of expected value, a result the exam report categorized as a "mild restrictive ventilatory defect." R. 119-11, PageID 7977. Despite this, the Coast Guard cleared Adkins for work and issued him a tankerman's license. Marathon performed a third medical exam on Adkins in April [*3]  2012, which showed his FVC had declined all the way to 62% of expected value. Still, Marathon cleared Adkins to work without restriction.

On March 26, 2012, about a month after his last medical examination, Adkins was working on the barge as usual when he began to feel sick. He was "very dizzy," "delirious," and felt "like [he] was going to pass out" and "puke," so he got off the barge at the first opportunity. R. 119, PageID 7827. Adkins went to the hospital in Cincinnati, Ohio, where the physician who  [**3]  treated him reported that his chief complaint was lightheadedness. By the next day, Adkins's symptoms had subsided. The physician diagnosed Adkins with an irregular heartbeat and heat intolerance and authorized his discharge from the hospital. He also advised that Adkins should take "off work until [Adkins's] own cardiologist [] clear[ed him] to return to work." R. 52-8, PageID 1935.

But Adkins never returned to work for Marathon. Instead, he sued his former employer, claiming that his work on the barge caused his lungs to deteriorate to the point that he now requires supplemental oxygen on a near constant basis. He initially filed suit in Louisiana state court, but that court [*4]  dismissed his case on forum non conveniens grounds. He then sued Marathon in the Southern District of Ohio. In his amended complaint, Adkins asserted claims for negligence under the Jones Act, and claims for unseaworthiness and maintenance and cure under general maritime law, alleging primarily that repeated exposure to hydrogen sulfide and other hydrocarbon fumes while working on the barge caused his pulmonary function to deteriorate. He also claimed that Marathon failed to pay maintenance and cure for the injuries and illnesses he sustained while working on the barge.

Marathon moved for summary judgment on all of Adkins's claims. Adkins filed a cross-motion for partial summary judgment on his maintenance-and-cure claim. The district court held a Daubert² hearing where it considered whether two of Adkins's proffered medical experts—Dr. Charles Pue and Dr. Glenn Gomes—offered admissible medical opinions on the cause of Adkins's lung injuries. Thereafter, the district court granted Marathon's motion for summary judgment and denied Adkins's. In its order, the district court excluded Dr. Pue and Dr. Gomes from offering expert medical proof on procedural and substantive grounds.

Adkins moved [*5]  the district court to alter or amend its judgment. Among other things, Adkins argued—for what appears to be the first time—that some of his claims were not premised on the theory that hydrocarbon fumes caused his lung damage and that it was instead caused by other factors. The court denied the motion, and Adkins timely appealed.

 [**4]  II.

Although we generally review the denial of a motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) for an abuse of discretion, we review de novo when, as here, the Rule 59(e) motion sought review of a grant of summary judgment. Columbia Gas Transmission, Corp. v. Ltd. Corp., 951 F.2d 110, 112 (6th Cir. 1991). Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Hrdlicka v. Gen. Motors, LLC, 63 F.4th 555, 566 (6th Cir. 2023).

"We review the exclusion of expert testimony for abuse of discretion, even when the exclusion results in the entry of summary judgment for the opposing party." United States ex rel. TVA v. 1.72 Acres of Land, 821 F.3d 742, 748 (6th Cir. 2016) (quotation omitted). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly applies the law, or uses an erroneous legal standard." Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 218 (6th Cir. 2019) (quotation omitted); see Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996) ("Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment." (quotation [*6]  omitted)).

III.

Before the district court, Adkins argued primarily that exposure to hydrogen sulfide and other hydrocarbon fumes while working on Marathon's barge caused his lung damage. But on appeal, Adkins clarified that he is abandoning all his "exposure-related toxic tort claims." D. 33 at p.5. Instead, he challenges the district court's grant of summary judgment to Marathon on four claims: (1) negligent assignment, (2) medical negligence, (3) unseaworthiness, and (4) maintenance and cure. Adkins insists that these four claims do not relate to hydrocarbon exposure and that he can prove them without medical testimony that hydrocarbon inhalation caused his lung damage or—for his maintenance-and-cure claim—without any causation evidence at all. So, we will focus our discussion on those claims.

 [**5]  A.

Expert Testimony. Before addressing the merits of Adkins's claims, we consider first whether the district court erred in excluding the testimony of Dr. Gomes and Dr. Pue, Adkins's medical experts.

The district court did not abuse its discretion in excluding Dr. Gomes's testimony. The district court found that Adkins retained Dr. Gomes for litigation purposes and Dr. Gomes formed his opinions [*7]  in anticipation of litigation, rather than in the normal course of medical treatment. Dr. Gomes was thus a retained expert. As a retained expert, Dr. Gomes needed to produce an expert report that complied with Federal Rule of Civil Procedure 26(a)(2)(B). The four-page letter he wrote to Adkins's attorney did not meet Rule 26's standard. On appeal, Adkins concedes that the four-page letter does not comply with Rule 26. Adkins argues instead that Dr. Gomes did not need to submit a Rule 26 expert report because Dr. Gomes is his treating physician.

A party's expert-disclosure obligations for physicians differ depending on whether the physician is a treating physician or a retained physician. "[A] party needs to file an expert report from a treating physician only if that physician was 'retained or specially employed to provide expert testimony.'" Fielden v. CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir. 2007) (quoting Fed. R. Civ. P. 26(a)(2)(B)). If the physician formed his causation opinions through the course of normal medical treatment of a patient, the patient does not need to submit an expert report for litigation related to the treatment. See id. at 869-70. But if the physician "formed his opinion at the request of [the patient's] counsel" and "in anticipation of litigation," courts should treat the physician as a retained expert and require compliance [*8]  with Rule 26, including the production of a report. Id. at 869, 871 (quotation omitted).

The district court had ample reason to believe that Dr. Gomes formed his causation opinion at the request of Adkins's counsel and in anticipation of litigation. Or, rather, not in anticipation, because litigation had already begun. Adkins did not first visit Dr. Gomes until February 2016, several months after he sued Marathon in Louisiana state court and almost four years after he last worked on the barge. Adkins's attorney arranged the medical appointment  [**6]  with Dr. Gomes, and Dr. Gomes's clinic billed the attorney, not Adkins, for Dr. Gomes's services. And most damning, Adkins's attorney attended some of these appointments with his client. It would seem unusual for someone to have an attorney accompany him to routine doctor's appointments unrelated to litigation. The record reflects that Dr. Gomes was a retained expert. And because he was retained for litigation purposes, Dr. Gomes's failure to submit an expert report warranted excluding his testimony under Rule 37(c)(1).

A party can avoid the exclusion sanction by showing that its failure to comply with Rule 26 was "substantially justified" or "harmless." Fed. R. Civ. P. 37(c)(1); see also Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015). Adkins bore "the [*9]  burden of proving harmlessness or substantial justification." EQT Prod. Co. v. Phillips, 767 F. App'x 626, 634 (6th Cir. 2019) (citing R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271-72 (6th Cir. 2010)). Adkins has made no argument that his failure to produce an expert report was substantially justified or harmless.

As for Dr. Pue, the district court excluded him from giving expert testimony on the cause of Adkins's injuries for procedural and substantive reasons. Rule 26(a)(2)(B) sets forth the requirements for a retained expert's report. The report must contain "a complete statement of all opinions the [expert] witness will express and the basis and reasons for them" and "the facts or data considered by the witness in forming them." Fed. R. Civ. P. 26(a)(2)(B)(i)-(ii). "[A]n expert opinion must 'set forth facts' and, in doing so, outline a line of reasoning arising from a logical foundation." R.C. Olmstead, 606 F.3d at 271 (alteration in original) (quoting Brainard v. Am. Skandia Life Assur. Corp., 432 F.3d 655, 657 (6th Cir. 2005)). The expert's report must include the "how" and "why," not just his conclusions. Id. And the "medical expert must be able to articulate that there is more than a mere possibility that a causal relationship exists between the defendant's negligence and the injury for which the plaintiff seeks damages." Mayhew v. Bell S.S. Co., 917 F.2d 961, 963 (6th Cir. 1990).

Dr. Pue produced two expert reports: one on March 1, 2019, and another on October 4, 2020. The district court excluded the October 4 [*10]  report because it was untimely. Adkins does not challenge the exclusion of the October 4 report.

 [**7]  The district court did not abuse its discretion in excluding Dr. Pue as an expert based on his March 1 report. The report is conclusory and does not meet the level of rigor and detail that Rule 26 requires. It states simply that Adkins's FVC tests showed that his lung function slowly deteriorated over the course of his employment with Marathon and that exposure to hydrogen sulfide and other toxic fumes caused that deterioration. The report contains no explanation of how hydrocarbon inhalation caused Adkins's decreased pulmonary function. It just says that hydrocarbon exposure caused Adkins's lung damage without any elaboration. The report also does not contain a complete statement of Dr. Pue's opinions, see Fed. R. Civ. P. 26(a)(2)(B)(i), because he continued adding new bases for his causation opinion long after he submitted it. For instance, at the Daubert hearing, Dr. Pue testified for the first time that hydrogen sulfide caused "airway remodeling," a theory he did not present in the report. R. 162, PageID 9966.

Adkins concedes that the district court correctly prevented his experts from testifying that hydrocarbon exposure caused [*11]  his lung damage. Yet he argues that the district court erred by excluding Dr. Pue's entire opinion. He believes the district court should have allowed Dr. Pue to testify that other factors besides hydrocarbon exposure caused Adkins's injuries. But there is a simple reason why the district court focused only on that theory—it was the sole causation theory Dr. Pue offered. We cannot improve upon the district court's blunt summation of Dr. Pue's report: "Pue's entire causation theory . . . [is that] Adkins suffered a permanent, chronic respiratory condition from the aggravation of his childhood asthma caused by, and with temporal relationship to, his inhalation of H2S fumes. That's it." Adkins v. Marathon Petroleum Co., 672 F. Supp. 3d 483, 501 (S.D. Ohio 2023) (internal citation omitted).

Adkins argues that Dr. Pue also opined that Marathon's failure to refer Adkins to a pulmonologist sooner contributed to his lung damage because when Adkins finally received the right pulmonological treatment, it "could not reverse the intervening damage while Adkins went untreated during his employment." D. 30 at p.50. But Dr. Pue said that hydrocarbon exposure caused the intervening damage. His report states that Adkins should have been referred to a pulmonologist before being [*12]  "cleared to work in an environment with a toxic gas, such as H2S" and that the lack of treatment for his lung disease "increased his risk of severe lung injury with exposure to H2S." R. 120-9, PageID 8256. Dr. Pue did not indicate that lack of pulmonological  [**8]  treatment by itself could have caused any damage to Adkins's lungs; he said that working around hydrocarbon fumes without receiving medical treatment caused the damage. We cannot decouple anything in Dr. Pue's report from his core theory that hydrocarbon inhalation caused Adkins's lung injuries, a theory Adkins concedes Dr. Pue cannot testify about. Because Dr. Pue only opined in his report that hydrocarbon fumes caused Adkins's lung damage, the district court correctly precluded Dr. Pue from testifying at trial that something else caused it.

***

IV.

For the reasons stated, we AFFIRM the district court's grant of summary judgment to Marathon on Adkins's Jones Act negligence claims and his unseaworthiness claims, REVERSE  [**16]  the district court's grant of summary judgment to Marathon on Adkins's maintenance-and-cure claim, and REMAND for further proceedings consistent with this opinion.

Footnotes:

¹ While working for Marathon, Adkins was never diagnosed with any of those conditions: chronic bronchitis, emphysema, or COPD. In fact, at each of his medical examinations with Marathon, he expressly denied as much on his respiratory questionnaires. So to whatever extent Adkins relies on NVIC 04-08, that guidance document does not even apply to him. Nonetheless, Dr. Sheila Butler testified that declining FVC values could themselves indicate lung damage even without an accompanying diagnosis. Thus, for the purpose of this opinion, we view Dr. Butler's testimony as creating a genuine dispute of material fact on that point. See infra Part III.D.

² Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).