UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRENT A. ADKINS,

Plaintiff,

v.

MARATHON PETROLEUM 

COMPANY LP,

Defendant.

Case No. 1:17-cv-643

JUDGE DOUGLAS R. COLE

OPINION AND ORDER

This cause comes before the Court on Plaintiff Brent A. Adkins’s and 

Defendant Marathon Petroleum Company LP’s cross-Motions for Summary 

Judgment and accompanying motions to limit the testimony from various potential 

witnesses. For the reasons discussed below, the Court DENIES Adkins’s Motion for 

Partial Summary Judgment (Docs. 130, 135). But the Court GRANTS Marathon 

Petroleum Company LP’s Motion for Summary Judgment (Doc. 128) and 

DISMISSES Adkins’s Second Amended Complaint (Doc. 18) WITH PREJUDICE. 

Accordingly, the Court DENIES all other pending Motions AS MOOT. 

BACKGROUND

A. Factual History

Plaintiff Brent Adkins worked for Defendant Marathon Petroleum Company 

LP (Marathon) as a crew member on an inland river barge from 2008 to 2012. (Adkins 

Dep., Doc. 119, #7805). Specifically, he worked as a tankerman in the loading and 

unloading of vacuum gas oil (VGO), asphalt cement, and other oil-based substances. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 1 of 48 PAGEID #: 9986
2

(Pue Dep., Doc. 120, #8055). These substances emit hydrogen sulfide (H2S) fumes. 

(Id.). Both parties agree H2S can have harmful, even deadly, effects when inhaled. 

The parties do not agree about what amount or concentration of inhalation will cause

harm, what those harmful effects can look like, and whether Adkins’s present 

symptoms are attributable to H2S. These disagreements are the crux of the case. 

Adkins suffered from childhood asthma. (Id. at #8181). He was prescribed 

medication but apparently stopped taking it. (Id.). Adkins now believes he only had 

asthma “for a couple months” as a child, apparently assuming he grew out of it. (Doc. 

119, #7840). That said, prior to his work for Marathon, doctors had prescribed Adkins 

Advair and albuterol to help with his breathing. (Id. at #7835). He claims these 

medications were to treat his seasonal allergies and bronchitis. (Id.). In addition, 

while Adkins does not smoke, he suffers from obesity, which may affect his breathing. 

(Doc. 52-2, #1868; Doc. 120, #8110).

Before Marathon hired him in 2008, Adkins underwent a pre-employment 

physical examination. (Doc. 119, #7805). As part of the exam, a nurse tested Adkins’s 

pulmonary function. (Id. at #7838–39). Adkins reported to the nurse he had a cold 

that day. (Id.). Following the testing, the nurse attested in the report “[m]ild

restrictive pattern indicated.” (Doc. 119-10, #7956). Also during his pre-employment 

screening, Adkins took a “functional capacity evaluation” to assess his ability to 

perform the job. (Doc. 119, #7840). As part of that evaluation, he reported working in 

environments that exposed him to dust and “cleaning chemicals.” (Doc. 52-2, #1854). 

(Before and during his time working for Marathon, Adkins operated a window 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 2 of 48 PAGEID #: 9987
3

cleaning business on his days off. (Doc. 119, #7800–01). Presumably, this is what 

exposed him to “cleaning chemicals.”) Finally, he completed a respiratory 

questionnaire, which asked if Adkins had any previous pulmonary or lung problems. 

(Id. at #7840). Adkins answered “no” to both. (Id.). Based on these and other tests, 

Marathon cleared Adkins for the job.

Adkins underwent a similar evaluation in 2010. (Id. at #7841). He once again 

took a pulmonary function test. (Id.). Adkins remembers feeling “dizzy a little bit 

during the test.” (Id.). Adkins reported to the nurse he had a history of bronchitis and 

mild seasonal allergies, as well as having previously worked in environments that 

exposed him to asbestos, tungsten/cobalt, and dust. (Id.; Doc. 52-4, #1876). But he 

again did not disclose his past diagnosis of asthma. (Doc. 52-4, #1875). Physicians

cleared him to continue work. (Id. at #1877).

Although not explicitly disclosed during any physical with Marathon, Adkins 

suffered an episode of tachycardia in 2011. (Doc. 119, #7832). Tachycardia is a rapid 

and often irregular heart rhythm. As a result, a doctor (not affiliated with the 

Marathon physicals) prescribed him Metoprolol, a beta blocker that Adkins claims 

made him feel fatigued. (Id.).

Adkins underwent a third Marathon physical in 2012 around a month before 

his service at the company ended. (Id. at #7843). This exam followed much the same 

pattern as the prior two, except Adkins disclosed past diagnoses of asthma, 

pneumonia, and also checked the box for heart arrhythmia (which generally refers to 

an irregular heartbeat). (Doc. 119-12, #8009). The record is unclear whether Adkins 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 3 of 48 PAGEID #: 9988
4

checked this box to refer to his tachycardia or for a different issue. In any event, an 

accompanying pulmonary function overview report concluded he suffered 

“[m]oderately severe restrictive pattern” in airflow. (Id. at #8012). Also during this 

exam, Adkins disclosed for the first time that his work exposed him to H2S fumes. 

(Id. at #8010).

Marathon knows its products can emit H2S fumes. It requires all company 

personnel working near the products to wear personal H2S monitor “badges.” (Doc. 

53-12, #2451). The badges alarm when detecting H2S at 10 parts per million (ppm). 

(Id. at #2453). Marathon’s policy requires personnel to wear their badges near their 

mouths to detect H2S capable of being inhaled. (Id. at #2452). If a badge alarms, 

personnel must leave the area, notify a supervisor, and cease work until ordered 

otherwise. (Id. at #2453). There is some ambiguity in the record around what the 

OSHA regulatory limits and NIOSH guidance set as the occupational limit for shortterm exposure to H2S. Some citations suggest 15 ppm. (Doc. 53, #2146). Other places 

in the record suggest between 20 ppm and 50 ppm. (Doc. 120, #8044). In any event, 

all seemingly agree Marathon’s H2S badges alarm below the standard OSHA and 

NIOSH short-term exposure limit.

The parties dispute whether Adkins’s badge ever alarmed.1 At one time,

Adkins denied that his badge ever alerted for H2S while working for Marathon. (Doc. 

53-15, #2471). Supporting that, there is no written record of Adkins’s badge alarming. 

1 Adkins also attests he and other deckhands would occasionally cover their H2S badges to 

prevent them from alarming. (Doc. 123, #8653). There is no other evidence this occurred 

besides Adkins’s word. If true, this would violate Marathon’s policies. (Id.).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 4 of 48 PAGEID #: 9989
5

In his deposition, though, he claimed his badge alarmed five or six times, and he 

claimed to have informed the captain each time. (Doc. 119, #7816–17). Adkins never

completed any written form detailing his badge alarming. He claims that he thought

that was the captain’s responsibility. (Id. at #7819). Marathon personnel, on the other 

hand, aver the deckhand is responsible for reporting such incidents. (Doc. 123, 

#8630). Consistent with the latter, discovery produced two other H2S badge alert 

reports from other deckhands that the ship’s captain had not seen before. (Id.; Doc. 

123-3; Doc. 123-4). And, as far as the Court can tell, discovery produced no instances 

of a captain submitting a report about a deckhand’s badge alarming.

Relevant to this case, an “event” occurred on May 26, 2012. Adkins boarded 

Marathon’s vessel, the M/V Garyville, on May 24, 2012, to begin a multi-week trip

launching from the Cincinnati area. (Doc. 119, #7822). The first two days passed 

without incident, although Adkins claims he felt “not so good” later on the 25th. (Id.

at #7824). Adkins later attested this was the first time he ever felt ill on a Marathon 

boat. (Id. at #7825). On May 26, Adkins started his work at 6:00 a.m., loading the 

barge with VGO. (Id.). He completed his first shift at 12:00 p.m., seemingly without 

incident. (Id.). The day was hot and sunny, around 93 degrees. (Id. at #7827).

Later in the day, Adkins prepared for his next shift, which started at 6:00 p.m. 

(Id. at #7826). Before starting, Adkins “calibrated” his H2S badge. (Id.). Then, some

malfunction caused Adkins’s badge to alarm. (Id.). Captain Jeremy Stewart ordered 

Adkins to swap badges with another crewman and start his shift. (Id.). Adkins 

believed this was a safety violation and complained, but Stewart ordered him to do 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 5 of 48 PAGEID #: 9990
6

so anyway. (Id.). Wearing a fellow crewman’s badge, Adkins then began his shift at 

the scheduled time. (Id.).

Around 7:30 p.m., Adkins fell ill. While opening a VGO valve, he suddenly felt 

light-headed and delirious, experiencing a headache and shortness of breath. (Id. at 

#7826–27). He describes the illness’s onset as sudden and “in a hurry.” (Id. at #7827). 

Adkins’s badge did not alarm. (Id.). The H2S badges worn by nearby crewmen also 

did not alarm. (Doc. 123, #8651; Docs. 123-3). Adkins immediately left his post and 

went to tell a fellow crewmember he felt ill. (Doc. 119, #7827–28). The crewmember 

got Adkins a glass of water and let him cool off. (Id. at #7828). After cooling off and 

taking an Ibuprofen tablet, Adkins went to speak with Stewart. (Id.; Doc. 119-4, 

#7912).

After arrival, the two drafted a “Boatcrew Report of Injury or Illness” 

memorializing the incident. (Doc. 119-4). In the report, Adkins described the events 

and illness. He wrote, in full: “Opening [sic] valve and got light-headed and headache 

came, and also had shortness of breath and felt like tachycardia.”2 (Id. at #7912). 

Adkins signed the report. (Id.). Later, Adkins reported to Kristopher Perdue, another 

Marathon employee, that he had been wearing an H2S badge properly and confirmed 

it had not alarmed during the incident. (Doc. 53, #2158–59).

Adkins now tells a slightly different story of that interaction. In his deposition, 

Adkins claims he immediately suspected H2S fumes had caused his condition. (Doc. 

119, #7828). And Adkins says he told Stewart his suspicions right away. (Id.). But

2 As noted above, doctors had previously diagnosed Adkins with tachycardia, so he 

presumably knew what it felt like to suffer a tachycardic event. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 6 of 48 PAGEID #: 9991
7

H2S is mentioned nowhere in the report. Further, when questioned at his deposition, 

Adkins could not explain his suspicion beyond pointing to his four years’ experience 

pumping barges. (Id.).

In any event, Stewart called for Adkins to be taken to a hospital, and a cab 

came to take Adkins to be evaluated. (Id. at #7830). Adkins reported his symptoms to 

the doctor, who ran blood work. (Id. at #7831–32; Doc. 119-5, #7917). The report noted 

his “chief complaint” as feeling “lightheaded.” (Doc. 119-5, #7917). The doctor’s report

acknowledged Adkins had “a history of asthma” but also stated Adkins “[r]eveals easy 

respiratory effort without the use of accessory muscles. Auscultation is clear.” (Id.). 

Under “diagnosis for discharge,” the doctor wrote, “cardiac arrhythmia by history and 

heat intolerance.” (Id. at #7918). Adkins also told the doctor he hadn’t “felt good since 

[he] started on Metoprolol.” (Doc. 119, #7832). The hospital discharged Adkins a few 

hours later. Adkins has not worked for Marathon since.

In the following months, Adkins saw a family physician and a pulmonologist. 

(Doc. 55-16, #2962). Unlike the doctor Adkins saw after leaving the barge, the 

pulmonologist diagnosed Adkins with toxic fume inhalation and prescribed him 

pulmonary medication. (Id.). Adkins’s medical experts argue his lung capacity had 

deteriorated as compared to the pulmonary tests performed before the May 26th 

incident. (See id.). And at some point later on, doctors prescribed Adkins “more 

intense bronchodilator treatment and eventually supplemental oxygen.” (Id. at

#2963).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 7 of 48 PAGEID #: 9992
8

Claiming his injury had occurred on the boat, Adkins sought to have Marathon 

pay for his medical care under the maritime doctrine of maintenance and cure. (Doc. 

52-9, #1939–40). Marathon refused, arguing his symptoms began before he boarded 

the ship, and told him to submit all bills to his private health care insurance. (Id.).

But Marathon paid Adkins short-term sick pay benefits directly following the 

incident and has paid long-term disability benefits since. (Doc. 119, #7854–55).

In 2016, after this litigation began in Louisiana, Adkins saw Dr. Glenn Gomes. 

(Doc. 55-16, #2962). Adkins’s counsel contacted and hired Gomes to see Adkins, but 

Adkins’s counsel did not attend the first appointment. (Doc. 55, #2645). Gomes

performed further pulmonary tests and found some slight improvement in Adkins’s 

lung capacity from prior tests. (Doc. 55-16, #2962). But Gomes still reported a

“pattern of mixed obstruction and restriction consistent with moderate to severe 

impairment of lung function.” (Id.). At that first visit, Gomes did not report the cause 

of Adkins’s injury. (See Doc. 55-9). 

A few months later, Gomes met with Adkins again but with Adkins’s counsel 

present. (Doc. 55, #2645–46). And this time, Gomes pinpointed a cause. He concluded 

H2S fumes had permanently injured Adkins’s lungs. (Doc. 55-16, #2963). He also 

noted some improvement in lung function, which he attributed to therapy and 

removal from exposure to H2S. (Id.). Finally, Gomes performed additional studies 

that found no evidence of pulmonary fibrosis or radiological abnormalities. (Id. at

#2962).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 8 of 48 PAGEID #: 9993
9

At the time he initiated this litigation, Adkins claims he becomes fatigued after 

10 to 15 minutes of activity and can no longer work. (Doc. 119, #7854). He says he 

uses supplemental oxygen most of the time. (Id. at #7853). When asked what out-ofpocket expenses he had incurred related to the injuries described in this case, he 

reported paying $800 in “prescriptions and stuff.” (Id. at #7855).3

B. Procedural History

The Court knows little about the first phase of this litigation. Apparently, 

Adkins first sued Marathon in Louisiana state court in 2015. (Doc. 1, #1–2; Doc. 8, 

#41–42). As noted, Adkins later met with Gomes on February 18, 2016. (Doc. 55-16, 

#2962). On August 17, 2016, Gomes drafted a letter detailing his review of Adkins’s 

condition and his diagnosis and prognosis. (Doc. 55-16). In compiling that letter, 

Gomes attests to reviewing: (1) “Early medical history 2006-2012,” (2) “Injury 

Report,” (3) “Marathon company report and subsequent records,”, and (4) “Various 

treatment records.” (Id. at #2960). Gomes’s letter does not cite any articles or studies 

to support his conclusions. The litigation continued until a Louisiana court 

determined this case would be better prosecuted closer to Adkins’s home in 

Portsmouth, Ohio. Accordingly, the Louisiana court stayed the matter to permit 

Adkins to refile in the Southern District of Ohio. (Doc. 1-2).

Adkins filed his Complaint in this Court on September 27, 2017, (Doc. 1), then 

amended his Complaint on February 20, 2018, (Doc. 17), and amended again on 

3 Financially, Adkins relies on Social Security disability and long-term disability benefits 

from Marathon. (Doc. 119, #7854). Combined, Adkins currently receives approximately 

$1,950 monthly from these two sources. (Id.). And as noted, Marathon also paid Adkins shortterm sick pay benefits for some period of time after the May 26 incident. (Id. at #7855).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 9 of 48 PAGEID #: 9994
10

February 21, 2018, (Doc. 18). In his Second Amended Complaint, Adkins pursues 

three causes of action: the Jones Act, unseaworthiness, and maintenance and cure. 

(Id. at #346–54). The crux of Adkins’s allegations is that, while serving on Marathon’s 

barge, Adkins experienced cumulative, low-level exposure to H2S fumes, and that this 

aggregate low-level exposure caused permanent damage to his respiratory system. 

(Id. at #335, 344–35). 

The parties engaged in discovery. The Court issued an initial scheduling order, 

with Adkins’s primary expert disclosures due by February 1, 2019, Marathon’s 

primary expert disclosures due by April 1, 2019, and a final discovery deadline

(including expert discovery) of May 30, 2019. (Scheduling Ord. 6/22/18). After the 

parties requested extensions, the Court reset Adkins’s expert disclosures for March 

6, 2019, and the discovery deadline for July 15, 2019. (Not. Order 03/04/19; Doc. 40). 

As part of working up the case, the parties engaged experts and undertook 

extensive discovery as to each other’s experts. Adkins disclosed multiple experts, 

along with Adkins’s “treating physician” Dr. Gomes. First, Adkins hired Dr. Sheila 

Butler, who opined regarding Marathon’s health and safety standards. (Doc. 118-9, 

#7657). At her deposition, though, Butler made clear she was not opining as to 

medical causation—i.e., whether or how H2S caused Adkins’s present symptoms. 

(Doc. 118, #7529). Second, Adkins retained Dr. Rachel Jones, who offered an opinion 

as to Adkins’s approximated overall cumulative exposure to H2S. (Doc. 117-4, #7499–

500). Again, though, Jones did not discuss whether (or how) cumulative H2S exposure 

causes injury. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 10 of 48 PAGEID #: 9995
11

Third, and more relevant to this Opinion, Adkins hired Dr. Charles Pue. (Doc. 

120). Like Gomes, Pue reached an opinion concerning medical causation, and he 

provided two reports disclosing that opinion. (Docs. 120-9; 120-20). In his first report,

timely disclosed on March 1, 2019, Pue argued Adkins suffered from a “[c]hronic 

respiratory condition due to the inhalation of” H2S fumes. (Doc. 120-9, #8256). Citing 

the temporal relationship between his exposure and the onset of his symptoms, Pue

concluded Adkins’s “asthma was aggravated by exposure to H2S gases, fumes, and 

vapors” and that such aggravation is now permanent. (Id.). Pue noted in the report 

that Gomes had characterized Adkins’s exposure to H2S fumes as “chronic.” (Id. at 

#8252). But beyond noting that, Pue said nothing about the H2S concentrations that 

are required to cause injury, whether he contends that H2S exposure is cumulative, 

or the physiological mechanism by which the asthma aggravation allegedly occurs.

Then on October 4, 2020, over eighteen months after the revised deadline for 

expert disclosures had passed, Pue issued a supplemental report. (See Doc. 120-20; 

Not. Order 03/04/19). He did so without leave from the Court and mere days before 

his October 8 deposition.

4 (See Doc. 120). In that supplemental report, Pue examined 

additional incident reports and a deposition of a crewmember before reaffirming his 

original medical causation theory. (Doc. 120-20, #8419–20). Again, though, beyond 

asserting that the H2S gases caused Adkins’s pulmonary injury, Pue still provides no 

discussion of the details surrounding that.

4 Marathon objects to the consideration of this report because Pue issued the supplemental 

report after the deadline.

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 11 of 48 PAGEID #: 9996
12

More than that, neither of Pue’s two reports identified any articles, studies, or 

other outside sources as direct support for his claim that H2S exposure can aggravate 

asthma. True, both reports include an appendix, listing various articles. But neither 

report explains how, or even whether, those articles support his opinion regarding 

causation. (Doc. 120-9, #8258; Doc. 120-20, #8422). 

Finally, Adkins offers Gomes as a testifying, non-retained, treating physician. 

As discussed, Gomes prepared a four-page letter which contains his medical 

causation opinion. (Doc. 55-16, #2960–63). But his letter too does not cite any 

scientific studies, peer-reviewed articles, or similar sources to support his opinion. 

Marathon, for its part, engaged experts as well. Relevant to medical causation, 

Marathon’s experts disagreed with Adkins’s cumulative exposure theory. After 

surveying the literature, Marathon’s experts concluded: “There is no indication that 

repeated H2S exposure at low concentrations is capable of causing or contributing to 

any pulmonary disease or respiratory injury.” (Doc. 115-6, #6818). According to these 

experts: “H2S is not a cumulative or stored toxicant” and is “only known to cause 

temporary symptoms” such as “loss of consciousness, asphyxiation, and death (if not 

removed from the area) due to exposure to high concentrations.” (Id.). The expert 

report also cited studies purporting to show a lack of pulmonary effect from repeated, 

low-level exposures. (Id. at #6838–39).5 

5 Adkins argues these expert opinions are inadmissible under Rule 702 and Daubert. (See 

Doc. 136). The Court does not reach the admissibility of Marathon’s experts’ opinions though.

As discussed below, Adkins has failed to provide his own admissible evidence for an issue on

which he bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

That failure means Adkins loses on summary judgment, independent of whether Marathon 

has any admissible evidence to the contrary on this issue. Id.

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 12 of 48 PAGEID #: 9997
13

C. Cross-Motions For Summary Judgment

On June 30, 2021, both parties moved for summary judgment. Marathon 

sought judgment in its favor as to all of Adkins’s claims. (Doc. 128). Relevant here, 

Marathon argued Adkins had not carried his burden of creating a genuine dispute 

whether (1) long-term, low-level H2S exposure can cause symptoms like those seen in 

Adkins (general causation), or (2) the H2S exposure here did cause Adkins’s 

symptoms (specific causation). (Doc. 128-1, #8863–67). Marathon said each of 

Adkins’s experts is incapable of reliably testifying as to these two issues—dooming 

Adkins’s Jones Act and unseaworthiness claims. (See id.). Finally, Marathon’s 

argument on maintenance and cure did not expressly invoke the word “causation,” 

but the ultimate effect was the same. Marathon argued the claim failed because any 

symptoms attributable to his service on the barge—e.g., lightheadedness, dizziness—

resolved with rest and cooling off. (Id. at #8868). In other words, Marathon contends 

that no evidence shows that Adkins’s present injury (loss of pulmonary function) 

arises from, or relates to, his service on the boat. 

Accompanying this Motion, Marathon filed four Motions to Strike or Limit 

Testimony, one for each of Adkins’s deposed experts: Gomes (Doc. 124), Butler (Doc. 

125), Jones (Doc. 126), and Pue (Doc. 127).

For his part, Adkins moved for partial summary judgment on his cure claim. 

(Docs. 130; 135). (Adkins seems to have filed two parallel Motions for Partial 

Summary Judgment, but the second is merely an enhanced version of the first.)

Emphasizing the claim’s strict liability nature, Adkins argued that all he need show 

is that he became sick while aboard Marathon’s barge. (Doc. 135, #9234–35). Finally, 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 13 of 48 PAGEID #: 9998
14

Adkins too sought to limit the testimony of Marathon’s proposed experts and other 

proposed witnesses. (Doc. 136). As part of that, Adkins asked to submit a USB drive 

containing information relevant to his cross-examination of one of Marathon’s 

proposed witnesses. (Doc. 134).

After reviewing the record and the parties’ various motions, the Court 

determined that general causation was a key issue in the case. Specifically, the

parties dispute whether Adkins has provided sufficient evidence from which a jury 

could conclude that repeated, low-level exposure to H2S fumes, akin to what Adkins 

allegedly suffered here, can cause respiratory injury. After reviewing Adkins’s expert

disclosures, the Court believed Pue likely came closest to reliably providing that

testimony. Accordingly, the Court held a Daubert hearing to assess whether Pue’s 

expert testimony would be admissible at trial with regard to general causation. (Docs. 

161, 162). The specifics of Pue’s testimony there are discussed as relevant below.

All matters are now fully briefed and ripe for ruling. 

STANDARD OF REVIEW

Both parties seek summary judgment (although on Adkins’s part, it is only 

partial summary judgment). For either to prevail, they “bear[] the initial 

responsibility of informing the district court of the basis for its motion and identifying 

those portions’ of the record which demonstrate ‘the absence of a genuine issue of 

material fact.’” See, e.g., Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL 

4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986)). This can include, for example, the moving party showing that the 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 14 of 48 PAGEID #: 9999
15

nonmoving party lacks evidence on an issue on which the nonmoving party bears the 

burden of proof. Celotex, 477 U.S. at 325; Clark v. Walgreen Co., 424 F. App’x 467, 

471 (6th Cir. 2011).

Once the moving party has met this “initial responsibility,” the nonmoving 

party cannot defeat summary judgment merely by pointing to any factual dispute. 

Indeed, “[t]he mere existence of some alleged factual dispute between the parties will 

not defeat an otherwise properly supported motion for summary judgment; the 

requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. 

City of Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). That is, the 

dispute must be both “genuine” (i.e., supported by evidence) and go to a “material 

fact” (i.e., a fact that could change the outcome).

In sum, after reviewing all the cited evidence, the Court must determine 

whether there is some “sufficient disagreement” that necessitates submitting the 

matter to a jury. See Moore v. Philip Morris Cos., 8 F.3d 335, 340 (6th Cir. 1993) 

(quoting Anderson, 477 U.S. at 251–52). And in making that determination, the Court 

must view the evidence in the light most favorable to the nonmoving party. See 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v. 

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the 

court must afford all reasonable inferences, and construe the evidence in the light 

most favorable to the nonmoving party.”).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 15 of 48 PAGEID #: 10000
16

LAW AND ANALYSIS

Adkins asserts three causes of action under maritime law seeking recovery for 

injuries he allegedly suffered from exposure to H2S while aboard Marathon’s vessel.

While each cause of action has somewhat differing elements, all fail for the same 

reason. Each requires proof of a causal link between the H2S exposure and Adkins’s 

alleged injuries. But Adkins has not provided admissible evidence to establish that 

link. That is largely because his medical causation experts—Pue and Gomes—did not 

comply with the Federal Rules of Civil Procedure in disclosing their opinions. 

Whatever the reason for the shortcoming, though, without causation evidence to 

support his claims, a reasonable jury could not find in his favor.

A. All Three Claims Require Adkins To Show That The Exposure To H2S 

Both Can Caused And Did Cause His Alleged Pulmonary Injuries.

As noted, Adkins is pursuing three causes of action under maritime law: (1) the 

Jones Act, (2) unseaworthiness, and (3) maintenance and cure. (Doc. 18, #346–54). 

Based on the theories that Adkins is advancing here, each claim requires a showing 

of causation for him to recover.

1. The Jones Act

The Jones Act codifies a negligence-based cause of action for a seaman to bring 

against his or her employer. See 46 U.S.C. § 30104. Like other negligence claims, a 

seaman must demonstrate duty, breach, causation, and damages. See Perkins v. Am. 

Elec. Power Fuel Supply, Inc., 246 F.3d 593, 598 (6th Cir. 2001). That said, the Jones 

Act employs a “reduced standard for causation between the employer’s negligence 

and the employee’s injury.” Id. “Under the Jones Act, a plaintiff need only show that 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 16 of 48 PAGEID #: 10001
17

the defendant’s negligence, however slight, contributed in some way toward causing 

the plaintiff’s injuries.” Miller v. Am. President Lines, Ltd., 989 F.2d 1450, 1463 (6th 

Cir. 1993). 

Here, Adkins is claiming an entitlement to relief based on his reduced lung 

function, which he says results from H2S exposure on the Marathon vessel. Thus, to 

succeed on this claim, he must show a causal relation between that exposure and his 

current injuries—i.e., that the exposure “contributed in some way” to that injury.

2. Unseaworthiness

Unseaworthiness, by contrast, is a federal common law claim. Under this 

doctrine, “[a] ship owner is strictly liable for personal injuries caused by his or her 

vessel’s ‘unseaworthiness.’” Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 

(6th Cir. 2006) (citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960)). “A 

vessel is unseaworthy if the vessel and its appurtenances are not ‘reasonably fit for 

their intended use.’” Id. But as that suggests, unseaworthiness too has a causation 

element. “A plaintiff must prove that the unseaworthy condition played a substantial 

part in bringing about or actually causing the injury and that the injury was either a 

direct result or a reasonably probable consequence of the unseaworthiness.” Miller, 

989 F.2d at 1463 (quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th 

Cir. 1988)). 

Thus, just as with the Jones Act claim, to succeed on his unseaworthiness 

claims, Adkins again must show a causal link between the H2S exposure and the 

injuries for which he is seeking relief.

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 17 of 48 PAGEID #: 10002
18

3. Maintenance and Cure

That leaves maintenance and cure—the ancient maritime remedy. See The 

Osceola, 189 U.S. 158, 175 (1903). Maintenance describes a shipowner’s duty to 

provide a seaman food and lodging. Cunningham v. Interlake S.S. Co., 567 F.3d 758, 

761 (6th Cir. 2009). Cure, on the other hand, describes a shipowner’s duty to provide 

medical care “during the period of injury or illness.” Id. As a strict liability regime for 

the benefit of the seaman, ambiguities are resolved in the seaman’s favor. See

Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). To prevail, a claimant must show

“(1) he was working as a seaman, (2) he became ill or injured while in the vessel’s 

service, and (3) he lost wages or incurred expenditures relating to the treatment of 

the illness or injury.” West v. Midland Enters., Inc., 227 F.3d 613, 616 (6th Cir. 2000).

The “lost wages” in the third element refers to compensation that the seaman 

would have otherwise earned over the course of their employment contract without

the injury. Blainey v. Am. S.S. Co., 990 F.2d 885, 891 (6th Cir. 1993). Here, Adkins 

has not claimed—nor does the record detail—any such lost wages. (See Doc. 18, #353–

54; Doc. 157, #9802). Thus, his only way of showing the third element is with 

expenses. And in these circumstances, maintenance and cure only permits a seaman 

to recover his or her actual out-of-pocket expenses. See Al-Zawkari v. Am. S.S. Co., 

871 F.2d 585, 588 (6th Cir. 1989); Shaw v. Ohio River Co., 526 F.2d 193, 200 (3d Cir. 

1975). On that front, the only out-of-pocket expenses the record reflects are $800 in 

expenses that Adkins incurred for “prescriptions and stuff.” (Doc. 119, #7855).

Causation is not per se an element of maintenance and cure. Messier v. 

Bouchard Transp., 688 F.3d 78, 83–84 (2d Cir. 2012) (“The rule of maintenance and 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 18 of 48 PAGEID #: 10003
19

cure is simple and broad: a seaman is entitled to maintenance and cure for any injury 

or illness that occurs or becomes aggravated while he is serving the ship.”); Ramirez

v. Carolina Dream, Inc., 760 F.3d 119, 124 (1st Cir. 2014). But where an injury 

manifests after a seaman has left his service, causation plays a limited role.

Specifically, the seaman must show that the later-arising injury—and accompanying 

expenses—arise from the seaman’s service. See Messier, 688 F.3d at 85; Wills v. 

Amerada Hess Corp., 379 F.3d 32, 53 (2d Cir. 2004); Prendis v. Cent. Gulf S.S. Co., 

330 F.2d 893, 896 (4th Cir. 1963).

So although causation is not normally part of maintenance and cure, Adkins 

nonetheless must prove here that his claimed out-of-pocket expenses related to an 

injury that occurred or was aggravated while he served on the barge. And, based on 

Adkins’s theory, that means he must show that his cumulative, low-level exposure to

H2S fumes caused or worsened his pulmonary injury, which in turn required him to 

spend that $800. 

In sum, each of Adkins’s claims requires some showing of causation.

6

6 Granted, Adkins vigorously disputes that causation has any bearing on his cure claim. (Doc. 

157, #9801–02). And as discussed, that is normally true—particularly when the injury and 

out-of-pocket medical expenses are obviously related to a seaman’s service. But here, what 

expenses are “related” is not obvious but rather hotly disputed. Indeed, Marathon proffers 

experts who say the body of medical research does not support that H2S even could have

caused or aggravated Adkins’s present injury. Thus, Adkins’s burden as plaintiff requires he 

provide at least some affirmative evidence tracing his present injury and accompanying 

expenses to his service with Marathon. See Prendis, 330 F.2d at 896 (“Even though the right 

of recovery for maintenance and cure is quite broad, the [seaman] still bears the burden of 

alleging and proving facts that bring himself within its scope.”).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 19 of 48 PAGEID #: 10004
20

4. General And Specific Causation 

As this is a toxic tort case, establishing causation requires two showings: 

general causation and specific causation. Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 

676–77 (6th Cir. 2011). General causation means “the toxic substance is capable of 

causing” injuries of the type at issue. Id. (emphasis added). Specific causation, by 

contrast, means the toxic substance in fact “did cause [] the plaintiff’s alleged injury.”

Id. In cases like this one, proving either requires expert testimony. Id. (“Both 

causation inquiries involve scientific assessments that must be established through 

the testimony of a medical expert.”); see also Wills, 379 F.3d at 46 (“Where ... the 

nexus between the injury and the alleged cause would not be obvious to the lay juror, 

‘[e]xpert evidence is often required to establish the causal connection between the 

accident and some item of physical or mental injury.’” (quoting Moody v. Maine Cent. 

R.R. Co., 823 F.2d 693, 695 (1st Cir. 1987))). And if those experts who would otherwise 

demonstrate general or specific causation are excluded, “a plaintiff’s toxic tort claim 

will fail.” Pluck, 640 F.3d at 677 (quoting Baker v. Chevron USA, Inc., 680 F. Supp. 

2d 865, 874 (S.D. Ohio 2010)). Maritime law cases are no different. See Wills, 379 

F.3d at 46.

B. Adkins Lacks Admissible Evidence Sufficient To Create A Genuine 

Dispute As To General Causation Or Specific Causation.

As the movant for summary judgment, Marathon bears the initial burden to 

show there is no genuine issue of material fact that Adkins cannot prevail on his three 

claims. As already noted, Marathon can discharge this burden by showing Adkins 

lacks evidence necessary to prove his case. Pursuing that avenue here, Marathon says 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 20 of 48 PAGEID #: 10005
21

Adkins’s proposed experts cannot offer admissible testimony that would create a 

genuine dispute on medical causation. And absent a genuine dispute as to causation, 

Marathon asserts, all Adkins’s claims fail. 

Adkins disagrees. That is, he believes his experts—Pue and Gomes 

specifically—are admissible and can adequately testify on both general and specific 

causation. (See Doc. 32). And in Adkins’s view, their testimony creates a genuine issue 

of material fact sufficient to survive summary judgment.

In short, then, this dispute comes down to admissibility. If Adkins is to create 

a genuine issue of material fact, either Pue or Gomes, or both together, must have 

admissible testimony to create a genuine dispute of material fact on both general and 

specific causation. Measured against that standard, Adkins falls short. Indeed, as 

discussed below, neither expert has offered admissible opinion testimony as to either 

general or specific causation.

1. Pue Cannot Testify As To Causation.

The decision to admit an expert opinion has both a procedural element and a 

substantive element. As to procedure, the proffering party must disclose any opinion 

that an expert intends to offer at trial in accordance with the Federal Rules of Civil 

Procedure. Then, as a matter of substance, that opinion also must meet reliability 

standards. Here, Pue’s general causation opinion has problems on both fronts.

Start with the former. At the Daubert hearing, Pue made clear that the opinion 

he now intends to present at trial is that repeated low-level exposure to H2S fumes 

(actually, to any irritant) can cause “airway remodeling” that, especially for

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 21 of 48 PAGEID #: 10006
22

asthmatics, may cause permanent injury to pulmonary function. (Doc. 162, #9967–

68). But he never disclosed that opinion, nor anything like it, in his original report. 

In fact, exactly what his opinion is on the mechanism of causation has been somewhat 

of a moving target. But one thing is clear—his first mention of airway remodeling 

occurred in response to the Court’s questioning at a Daubert hearing a few months 

ago, some eight years after this litigation began in state court and nearly four years

after expert discovery closed in federal court. And the sources on which he relies to

support his opinions likewise have constantly evolved. 

That is not how expert discovery works. Parties are required to disclose an 

expert’s opinions and the bases for them in their reports. As explained more fully 

below, given Pue’s failure to timely disclose large parts of his proposed testimony, the 

Court will limit Pue to the opinions and sources disclosed in his initial report. 

But that leads to the second problem. As a substantive matter, Pue did not 

sufficiently disclose in that initial report any opinion about the effects continuous 

low-level exposure to H2S fumes can have on pre-existing asthma. And even if he had, 

the sources in his report do not provide a reliable basis for him to opine that such 

exposure causes pulmonary injury to people with pre-existing asthma. Accordingly, 

that opinion is inadmissible. As a result, Pue cannot create a genuine dispute on 

general causation.

Finally, Pue has not provided an admissible specific causation opinion either. 

While he claims to have relied on Gomes’s differential diagnosis as a basis, that isn’t 

enough for Pue to state his own opinion on specific causation.

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 22 of 48 PAGEID #: 10007
23

a. Pue did not disclose his general causation opinion in 

accordance with the Federal Rules.

The Federal Rules of Civil Procedure set ground rules for discovery and trial 

preparation. “The purpose of our modern discovery procedure is to narrow the issues, 

to eliminate surprise, and to achieve substantial justice.” Greyhound Lines, Inc. v. 

Miller, 402 F.2d 134, 143 (8th Cir. 1968); see also Ginns v. Towle, 361 F.2d 798, 801 

(2d Cir. 1966) (“The basic purpose of the federal rules, particularly those concerning 

discovery and disclosure, is to eliminate trial by ambush.”).

In the context of experts, the Rules achieve this end by requiring experts to

prepare written reports to be disclosed to the opposing side. Fed. R. Civ. P. 26(a)(2)(B).

The report must include:

(i) a complete statement of all opinions the witness will express and 

the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness’s qualifications, including a list of all publications 

authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the 

witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and 

testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)–(vi). “[A] ‘report must be complete such that opposing 

counsel is not forced to depose an expert in order to avoid an ambush at trial; and 

moreover the report must be sufficiently complete so as to shorten or decrease the 

need for expert depositions and thus to conserve resources.’” R.C. Olmstead, Inc. v. 

CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado by Salgado v. 

Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998)). In other words, “[e]xpert 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 23 of 48 PAGEID #: 10008
24

reports must include ‘how’ and ‘why’ the expert reached a particular result, not 

merely the expert’s conclusory opinions.” Fed. R. Civ. P. 26(a)(2) advisory committee’s 

note to 1993 amendment.

A report is deficient when it shows a “lack or reasoning,” provides “only cursory 

support,” or is “sketchy, vague or preliminary in nature.” R.C. Olmstead, 606 F.3d at

271; Salgado, 150 F.3d at 741 n.6; see also Brainard v. Am. Skandia Life Assur. Corp., 

432 F.3d 655, 664 (6th Cir. 2005) (noting a report with an “absence of meaningful 

analysis and reasoning” is deficient). And later disclosing an opinion’s “how and why” 

in a deposition generally cannot cure a deficient expert report. Ciomber v. Coop. Plus, 

Inc., 527 F.3d 635, 642 (7th Cir. 2008) (“Rule 26(a)(2) does not allow parties to cure 

deficient expert reports by supplementing them with later deposition testimony. ...

[The Rule’s] purpose would be completely undermined if the parties were allowed to 

cure deficient [expert] reports with later deposition testimony.”); Bresler v. 

Wilmington Tr. Co., 855 F.3d 178, 215–18 (4th Cir. 2017) (Wynn, J., concurring).

To be certain, Rule 26 “contemplates that the expert will supplement, elaborate 

upon, explain and subject himself to cross-examination upon his report.” Thompson 

v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006) (“Section 26(a)(2)(B) does 

not limit an expert’s testimony simply to reading his report. No language in the rule 

would suggest such a limitation.”). This elaboration can include discussion of the 

“normal general standards” known to all members of a profession. Id.

But “elaboration” has its limits. For example, a reference to entirely new bases 

of support undisclosed by the report crosses a line. See White v. Woodside, No. 20-

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 24 of 48 PAGEID #: 10009
25

11543, 2022 WL 1123782, at *2 (E.D. Mich. Apr. 14, 2022); Smith v. Pfizer Inc., No. 

3:05-0444, 2010 WL 1963379, at *9 (M.D. Tenn. May 14, 2010).

Now apply that framework to Pue’s disclosures here. From March 1, 2019,

when he issued his first report, until November 8, 2022, the second day of the Daubert

hearing, Pue’s opinion on general causation has markedly evolved. Not only that, but 

he has repeatedly augmented the bases he claims to have relied on in reaching his 

opinion. Simply put, neither his initial report, nor any updated report, provide any 

meaningful hint as to his current proposed testimony on general causation.

Start with his actual reports. He filed his initial report on March 1, 2019. 

There, Pue’s entire causation theory can be summarized as follows: 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. 

(Doc. 120-9, #8256). That’s it. Pue does not even try to explain how or why H2S fumes 

caused Adkins’s injury, what the physiological mechanism of injury was, what 

concentrations would cause such injury, or anything of the sort. And the only support 

he cites in that report is (1) a Material Safety Data Sheet for H2S and (2) an Appendix 

citing seven articles, including the Hessel article (which the Court discusses further 

below). (Id. at #8253, 8258). Even as to those sources, the report never explains how 

they support Pue’s opinion.

A year and a half later, on October 4, 2020, Pue filed an untimely supplemental 

report. There, he cited three additional sources and echoed the same bare-bones 

causation conclusions. (Doc. 120-20, #8422). The supplemental report once more did 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 25 of 48 PAGEID #: 10010
26

not explain how continuous exposure to low-level H2S fumes could cause or aggregate 

a pulmonary injury. And here again, Pue does not connect the sources he cites to the 

opinion he offers.

Perhaps recognizing these shortcomings in causation, Pue took another stab 

at it. Just before his deposition on October 8—a year-and-a-half after the expert 

disclosure deadline and four days after issuing his supplemental report—Pue

provided Marathon’s counsel with a packet of additional articles not previously 

disclosed. (Doc. 120, #8032). When Marathon’s counsel asked about these new articles

at the deposition, Pue replied: “I provided some articles when I wrote my original

report in 2019. And then I provided additional articles as the case progressed. As I 

got more information, I provided additional articles as I reviewed the—the records.” 

(Id.). Perhaps confused, Marathon’s counsel inquired: “So there are specific articles 

that are cited in your report. Are you saying that you did not cite to all of the articles 

that you actually relied on?” (Id.). Pue responded:

I cited to specific articles in my report that were pertinent to certain 

points that I wanted to make at that time. I also provided additional 

articles to [Marathon’s counsel] to share with you because I felt they 

were pertinent and would be pertinent for this deposition, so I relied 

upon all of those articles that I provided.

(Id. (emphasis added)). 

As the discussion turned to the articles supporting his causation opinion, Pue

then invoked, for the first time, an article that Jappinen authored and one that 

Guidotti authored. (Id. at #8053; Doc. 120-7; Doc. 112-11). The Hessel article, which 

Pue had disclosed in his initial report, cited Jappinen. But Pue did not reference or 

discuss Jappinen in either his initial or supplemental reports. As for Guidotti, 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 26 of 48 PAGEID #: 10011
27

Marathon’s expert, Dr. Paul Nony, had relied on the Guidotti article to show a lack

of any causal connection. (Doc. 112-1, #5846). Whether Nony brought Guidotti to 

Pue’s attention or not, one thing is certain—Pue’s reports never referred to Guidotti 

as a basis for his opinion. 

Pue also testified at his deposition, again for the first time, about his prior 

experience as a clinical pulmonologist working with patients exposed to H2S on hog 

farms and paper mills. (Doc. 120, #8039). He explained how this experience created 

yet another independent basis for his general causation opinion. (Id. at #8042, 8045). 

Nothing in Pue’s CV showed any previous experience working with patients exposed 

to H2S. (See Doc. 120-1).

Marathon’s counsel then asked Pue whether he had a familiarity with the 

OSHA/NIOSH standards for workplace exposure to H2S. (Doc. 120, #8044). Pue

attested that he recalled the limit was 20 ppm for an eight-hour workday exposure. 

(Id.). The parties then broke for lunch (id. at #8047), during which Pue apparently 

conducted additional research on that question. (Id. at #8053). Following the break, 

Pue revealed that he double-checked the OSHA website to confirm his recollection. 

(Id.). But that wasn’t all. Pue then volunteered:

But on the OSHA page, it says that the ACGIH, which is the American 

College of Governmental Industrial Hygienists, they have actually listed 

the eight-hour time weighted average for H2S as one part per million. 

And the [short-term exposure limit] is five parts per million, which is 

significantly lower than what OSHA had listed. So there’s other 

organizations that feel that low levels are potentially dangerous, not just 

my interpretation of the literature.

(Id.). In other words, Pue located another new, previously undisclosed source as 

alleged support for his opinion. But, when Marathon’s counsel inquired whether the 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 27 of 48 PAGEID #: 10012
28

ACGIH explained its recommendations, Pue admitted he did not know and had not 

investigated further. (Id.).

Still, Pue wasn’t done discussing the OSHA website. Later on in the deposition, 

Pue claimed that while on the OSHA website, he saw a report that an asthmatic may 

suffer bronchoconstriction at H2S concentrations of two to five ppm. (Id. at #8115–16,

8151, 8176–77). This “two to five ppm” OSHA recommendation that he (apparently) 

discovered mid-deposition—and more than a year after his expert report—has since 

become central to Pue’s general causation opinion. (See 11/8/22 Hrg. Trans., Doc. 161, 

#9828; 11/18/22 Hrg. Trans., Doc. 162, #9927, 9963). Yet none of this information—

the “two to five ppm” recommendation, the OSHA website, and the ACGIH 

recommendation—appeared in Pue’s reports. And Adkins’s counsel did not provide 

this source or its contents to Marathon’s counsel ahead of Pue’s deposition, causing 

Marathon to later object to any consideration of them. (See Doc. 161, #9828–32, 9855).

Then, on the second day of his deposition, Pue revealed another previously 

undisclosed basis for his opinion. As the deposition began, Pue volunteered that he 

had conducted yet more research overnight and located guidelines from the American 

Thoracic Society (ATS). (Doc. 120, #8084–85). He argued these guidelines “[r]eally 

didn’t do anything to change any of [his] opinions,” but still offered them as a basis 

for his general causation opinion. (Id.). Pue stated he had read the guidelines “in the 

past,” making it “part of [his] knowledge bases that [he] used in preparing his report.” 

(Id. at #8089). Taken aback, counsel for Marathon put on the record: “I’m going to tell 

you that I just received that earlier today and haven’t had an opportunity to really 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 28 of 48 PAGEID #: 10013
29

review it in any—any depth other than to kind of read the overview on here.” (Id. at 

#8087).

Aside from inquiring into sources, counsel for Marathon also asked Pue at his 

deposition to describe what H2S fumes do to the human body. (Id. at #8053). Pue

explained that H2S interacts with smooth muscles in the body, such as the airways, 

to relax them. (Id. at #8053–54). When asked, he disclaimed knowing how the body 

metabolizes and removes H2S. (Id. at #8054). Beyond that, Pue provided no further 

explanation about how H2S interacts with the body—certainly nothing about “airway 

remodeling.”

Fast forward to the Daubert hearing. When questioned about the basis for his 

opinion that cumulative, low-level exposure to H2S fumes can cause pulmonary 

injury, at least to asthmatics, Pue cited to the Jappinen, Hessel, Guidotti articles, the 

ATS guidelines, the “two to five ppm” recommendation from the OSHA website, and 

his personal experience. (Doc. 162, #9926–27). 

But even then, Pue was not done revealing new bases for his opinion. At the 

hearing, he described for the first time an article by Richardson, which traced sewer 

workers who had been exposed to low levels of H2S on the job. (Doc. 161, #9898–99). 

Marathon’s counsel responded by “object[ing] to any reliance by Pue or the Court ...

with respect to the Richardson article” because “[i]t was not referenced in either of 

Pue’s expert reports, his deposition, or in the year since then.” (Id. at #9899). Pue

defended his discussion of the article, confirming he had relied on this article when 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 29 of 48 PAGEID #: 10014
30

forming his general causation opinion in his reports (albeit apparently failing to 

disclose that fact). (Id.).

Second, Pue pointed to two “animal studies,” Lopez and Holbert, as further 

bases for his opinion.7 (Id. at #9834–35). When asked by Marathon’s counsel, Pue

claimed he could rely on these studies because “they are references within the 

references I provided.” (Doc. 162, #9957–58). In other words, the articles he had cited

in turn cited to the animal studies. 

The Court expressed concern about what appeared to be shifting bases for 

Pue’s opinion. After Pue began to testify as to the “two to five ppm” recommendation 

from the OSHA website, Marathon’s counsel objected. (Doc. 161, #9828–29). The 

Court responded: 

I think it’s incumbent upon the parties to disclose the experts on which 

they intend to rely, and then disclose the substance of those experts’

opinion, and then disclose the bases on which the expert has relied to 

form those opinions as part of the expert discovery process. And I don’t 

intend to allow experts to have a certain set of bases for their opinions 

for purposes of discovery, and then in terms of trying to establish 

admissibility or for testimony at trial, all of a sudden have a different 

set of bases for their opinions.

(Id. at #9832). As Marathon’s counsel continued to object to Pue’s new bases, the 

Court returned to that same theme:

What I’m still stuck on is [Marathon counsel’s] objection that this is 

undisclosed testimony. I guess you can elicit it [for purposes of the 

Daubert hearing], because it’s just going to me, anyway. But I will tell 

7 In fairness to Pue, the Court specifically asked whether low-level exposure to H2S had been 

tested in animals. (Doc. 161, #9834). Pue responded in the affirmative and claimed his 

general causation opinion relied in part on these studies. (Id. at #9834–35). Indeed, when 

told his opinion could not be based on a pure hunch, he pointed specifically to the animal 

studies as demonstrate he was not speculating. (Id. at #9907–08). Yet if these studies did 

indeed factor into his opinion, he did not disclose that in his reports or during his deposition. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 30 of 48 PAGEID #: 10015
31

you, I’m not going to consider opinions that were not fairly disclosed in 

connection with the expert discovery part of this case. I don’t think it’s 

appropriate, as I tried to make clear at the outset, to sort of do expert 

opinion by ambush. You know, the way discovery works, you have to—

everybody puts their opinion out up front, and their bases for it, and 

then those are the opinions that they offer during hearings and during 

trial. And so I’m just not comfortable with the doctor—if he is [allowed 

to testify], and I haven’t ruled on that, but I’m not going to allow him to 

offer a bunch of additional opinions on an ad hoc basis here that were 

not disclosed to the other party.

(Id. at #9846).

Finally, at the end of the Daubert hearing, Pue refined his general causation 

theory once more. As the hearing was about to end, the Court asked a clarifying 

question about Pue’s understanding of low-level H2S exposure and its effects. (Doc. 

162, #9966). In response, Pue (finally) explained how and why he thought H2S could 

cause breathing problems when a person with asthma receives chronic exposure in 

small doses over time. (Id.).

He described that because H2S is an inflammatory irritant, repeated exposure 

in low doses causes (1) the cilia (e.g., small hairs in the throat) to become thicker and 

longer over time, (2) hypertrophy (e.g., enlargement) of the mucus glands, and 

(3) hypertrophy of the muscles surrounding the airway. (Id.). Pue called this process 

“airway remodeling.” (Id.). But then Pue further explained that any irritant at 

sufficient levels can cause “airway remodeling” from long-term exposure—H2S was 

merely one of potentially many culprits. (Id. at #9968–69). He testified that even 

exposure to common inflammatory agents, like common allergens, could cause the 

same outcome. (Id. at #9969). He could not provide any literature supporting this 

theory. (Id.). Instead, Pue simply testified airway remodeling was “general 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 31 of 48 PAGEID #: 10016
32

knowledge” and “goes back to medical school mechanisms of development of asthma.” 

(Id. at #9969–70). 

As with most other aspects of his opinion, Pue’s newfound “airway remodeling” 

theory surprised Marathon’s counsel. She argued: “This analysis, this description of 

how and why that we are about to get into was not included in Pue’s report, either of 

them, the March 2019 report, nor the October 2020 report.” (Doc. 161, #9843–44). 

Adkins’s counsel responded it was Marathon’s counsel fault she had not asked Pue

“what the mechanism of injury is” during the deposition. (Id. at #9847). Not so. 

Marathon’s counsel had asked Pue at his deposition “what does hydrogen sulfide do 

to the human body.” (Doc. 120, #8053). Pue himself confirmed this. (Id. at #8084–85).8

And deposition testimony aside, Pue’s reports needed to include a “complete statement 

of all opinions [he] will express.” Fed. R. Civ. P. 26(a)(2)(B)(i) (emphasis added). In 

any event, Marathon’s counsel objected to this novel explanation, and the Court again

warned it would not “allow him to offer a bunch of additional opinions on an ad hoc 

basis here that were not disclosed to the other party.” (Doc. 162, #9846).

To recap, Pue now claims his general causation opinion rests on an airway 

remodeling theory. This specific theory, by name or otherwise, does not appear in his 

reports nor his deposition testimony. Further, Pue now claims his opinion relies on 

his prior experiences as a clinical pulmonologist with patients allegedly exposed to 

8 Pue volunteered at the start of the second day of his deposition: “[Y]ou were asking me about 

mechanisms and I had read it before, so I reread it, so I read some of that stuff about the 

mechanism of how hydrogen sulfide is—is processed in the body and cleared from the body 

and its mechanism of action on the lungs and on the body.” (Doc. 120, #8084–85). So clearly 

Pue understood he had been asked about the mechanism of injury. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 32 of 48 PAGEID #: 10017
33

H2S, articles by Jappinen, Hessel, Guidotti, Richardson, Lopez, and Holbert, 

recommendations found on the OSHA website, and guidelines by the ATS. Of these, 

Pue’s reports cite only Hessel. He disclosed everything else either (1) days before his 

deposition, (2) during his deposition, or (3) at the Daubert hearing. 

Taken together, Pue’s proposed trial testimony on general causation, as 

currently presented and supported, cannot be properly traced to his disclosures in his 

reports. Accordingly, Pue has not complied with Rule 26(a)(2)(B)(i). 

Failing to comply with Rule 26(a) has consequences. Under Rule 37(c)(1), “[i]f 

a party fails to provide information ... as required by Rule 26(a) or (e), the party is 

not allowed to use that information or witness to supply evidence on a motion, at a 

hearing, or at a trial, unless the failure was substantially justified or is harmless.”

Fed. R. Civ. P. 37(c)(1). “[T]he sanction is mandatory” unless properly explained. 

Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 370 (6th Cir. 

2010); Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003) 

(holding Rule 37(c)(1) “requires absolute compliance” with Rule 26(a)). The failure is 

justified or harmless where:

(1) the surprise to the party against whom the evidence would be offered; 

(2) the ability of that party to cure the surprise; (3) the extent to which 

allowing the evidence would disrupt the trial; (4) the importance of the 

evidence; and (5) the nondisclosing party’s explanation for its failure to 

disclose the evidence.

Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015) (quoting Russell v. Absolute 

Collection Servs., Inc., 763 F.3d 385, 396–97 (4th Cir. 2014)). For example, a

disclosure will be deemed harmless where the opposing party “had all the information 

relevant ... in its possession” and “had a full opportunity during [the] deposition to 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 33 of 48 PAGEID #: 10018
34

question” about the relevant issue. Jordan v. City of Cleveland, 464 F.3d 584, 601 

n.22 (6th Cir. 2006). The core goal is to “separate ‘honest,’ harmless mistakes from 

the type of ‘underhanded gamesmanship’ that warrants the harsh remedy of 

exclusion.” Bisig v. Time Warner Cable Inc., 940 F.3d 205, 221 (6th Cir. 2019) 

(citations omitted).

“Where exclusion necessarily entails dismissal of the case, the sanction must 

be one that a reasonable jurist, apprised of all the circumstances, would have chosen 

as proportionate to the infraction.” Dickenson v. Cardiac & Thoracic Surgery of E. 

Tenn., 388 F.3d 976, 983 (6th Cir. 2004) (quoting Musser v. Gentiva Health Servs., 

356 F.3d 751, 756 (7th Cir. 2004)). Still, “[d]istrict courts have broad discretion to 

exclude untimely disclosures of expert-witness testimony.” Pride v. BIC Corp., 218 

F.3d 566, 578 (6th Cir. 2000).

Pue’s failure to comply with the Federal Rules presumptively warrants

exclusion of any general causation opinion, or bases for such an opinion, that were 

not fairly disclosed in his timely initial report. Fed. R. Civ. P. 37(c)(1). Accordingly, 

the Court applies the Howe factors to determine whether Pue’s infraction can be 

considered justified or harmless, overcoming exclusion. Here, the Court concludes the 

Howe factors fail to save Pue’s later-disclosed opinions and sources.

Let’s run through the factors. At his deposition and Daubert hearing, Pue

admitted his opinion relied on previously undisclosed sources. Thus, his omissions

created surprise (for both Marathon and the Court) and deprived Marathon of time 

to prepare and have a “full opportunity during [the] deposition to question” Pue about 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 34 of 48 PAGEID #: 10019
35

his opinion. Jordan, 464 F.3d at 601 n.22. Further, this evidence is important. 

Causation, both general and specific, is a key dispute between the parties. 

Moving on, Pue’s haphazard disclosure tactics may well disrupt trial. Even at 

his Daubert hearing, Pue continued to disclose new sources and new theories—to 

which Marathon objected. If the Court does not exclude this new information, fairness 

considerations would require the Court to re-open discovery to allow Marathon an 

opportunity to explore Pue’s “clarified” opinions and their bases. Given that this 

dispute is close to eight years old, further delay is not warranted. 

Pue’s excuse is deficient. He claims he did not need to disclose all his sources 

in his expert reports because only specific articles were “pertinent to certain points 

that [he] wanted to make at that time,” even though his opinion actually relied (or so 

he now says) on additional articles. (Doc. 120, #8032). Again, that’s not how expert 

discovery works. It is not a game of hide-and-seek, allowing an expert to withhold 

opinions and bases for them until it suits them. See Roberts ex rel. Johnson, 325 F.3d 

at 783 (acknowledging a failure to disclose is not harmless where opposing counsel 

did not previously know the substance of the expert’s testimony).

At this stage, no less-harsh sanction is reasonable. See Dickenson, 388 F.3d at 

983. The obvious alternative would be to re-open expert discovery. But as discussed,

it is too late in the day for that course. This case has been pending for some eight 

years when including the Louisiana proceedings. (Doc. 119-2). Experts have 

presented their reports. Depositions have occurred. Discovery has closed. Crossmotions for summary judgment have been filed. Motions to limit testimony have been 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 35 of 48 PAGEID #: 10020
36

filed. And the Court had conducted a two-day Daubert hearing delving into Pue’s 

general causation opinion. To allow Pue to now prepare and issue a comprehensive 

supplemental report to cure his disclosure omissions would defeat many of the goals 

that the Federal Rules of Civil Procedure seek to achieve. 

The Court acknowledges that excluding Pue’s untimely disclosures is a severe

sanction. Moreover, the Court emphasizes that it does not exclude Pue for a lack of 

credentials. But the Federal Rules exist for a reason. The Court cannot ignore 

Adkins’s seeming disregard towards them. Nor can the Court overlook the 

consequences that Adkins’s nondisclosure of Pue’s opinions imposed on Marathon’s 

ability to prepare its case. And as Marathon’s counsel’s did not have the full 

opportunity to research and thus probe Pue’s sources, the Court is concerned whether

it could properly perform its own gatekeeping function under Rule 702. See Kumho 

Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999); see also Taylor v. Mentor Worldwide 

LLC, 940 F.3d 582, 613–14 (11th Cir. 2019) (Tjoflat, J., dissenting) (recognizing that 

where an expert provides evolving theories, “he is effectively able to bypass [the 

District Court’s] gatekeeping function” under Rule 702).

In sum, the Court excludes Pue from testifying as to any opinion, or basis for 

his opinion, that was not fairly disclosed in his initial report.

b. Pue’s initial report does not substantiate the general 

causation opinion he intends to offer at trial. 

That leaves Pue’s timely-filed March 1, 2019, report. As noted above, one 

problem with that report is that it is so conclusory that it may well fail to satisfy Rule 

26(a)’s disclosure requirements. But put that aside. Even if that report is read as 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 36 of 48 PAGEID #: 10021
37

disclosing that Pue intends to testify that repeated, low-level exposure to H2S causes 

pulmonary problems for people with pre-existing asthma, his opinion in that regard 

still must meet the admissibility standards of Rule 702 and Daubert. Here, it doesn’t.

“[A]dmitting expert testimony is not a decision a court should undertake 

lightly, as juries tend to place extra weight on expert opinions.” Navarro v. Procter & 

Gamble Co., 1:17-cv-406, 2021 WL 868586, at *2 (S.D. Ohio Mar. 8, 2021) (citing 

Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993)). As set forth in Daubert,

Courts play a “gatekeeping” role to ensure a jury does not hear “junk science” or 

otherwise unreliable evidence. Kumho Tire, 526 U.S. at 141.

This gatekeeping role incorporates a three-part test. “First, the witness must 

be qualified by ‘knowledge, skill, experience, training, or education.’” In re Scrap 

Metal Antitrust Litig., 527 F.3d 517, 529 (6th Cir. 2008) (quoting Fed. R. Evid. 702). 

Next, “the testimony must be relevant, meaning that it ‘will assist the trier of fact to 

understand the evidence or to determine a fact in issue.’” Id. Finally, and critically 

here, “the testimony must be reliable.” Id. Relevant considerations include “testing, 

peer review, publication, error rates, the existence and maintenance of standards 

controlling the technique’s operation, and general acceptance in the relevant 

scientific community.” United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001) 

(citing Daubert, 509 U.S. at 593–94).

At its core, reliability requires the expert (1) to use a reliable methodology, and 

(2) to base his or her opinions on reliable facts or data. In re Scrap Metal, 527 F.3d at 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 37 of 48 PAGEID #: 10022
38

529. While reliability is a “flexible concept,” an expert’s opinion must have some basis. 

Id. at 529–30. Speculation without support won’t cut it. Id.

At the Daubert hearing, Pue named exactly one article in his initial report that 

he claims supports this opinion that long-term, low-level exposure to H2S fumes can 

aggravate a patient’s asthma and cause a respiratory injury—the Hessel article. (Doc. 

120-9, #8258; Doc. 162, #9926–27). That article, though, does not provide a reliable 

basis for the opinion he seeks to offer.

In Hessel, researchers studied oil and gas workers in Alberta, Canada, who 

had been exposed to high-levels of H2S. (Doc. 120-6, #8239). The paper found that 

subjects who suffered a “knockdown” event (i.e., passed out as the result of a highlevel exposure to H2S) showed lingering respiratory symptoms including shortness of 

breath and wheezing. (Id. at #8238–39). At the Daubert hearing, Pue extrapolated 

from these high-level findings. He proposed they indirectly supported his theory that

“low-level exposures to H2S [can] caus[e] permanent changes, decline in lung function 

as evidenced by shortness of breath, wheezing, and attacks of wheezing ... that are 

statistically significant and are indicative of bronchospasm in patients who have

underlying asthma and are exposed to low levels of H2S.” (Doc. 161, #9869).

The main problem with that argument is that the Hessel study itself explicitly 

says the opposite: “This study did not show evidence of measurable pulmonary health 

effects as a result of exposures to H2S that were intense enough to cause symptoms 

but not intense enough to cause unconsciousness. Even the large concentrations

leading to a loss of consciousness did not appear to affect pulmonary function.” (Doc. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 38 of 48 PAGEID #: 10023
39

120-6, #8239). When the Court pointed out this discrepancy at the hearing, Pue

pivoted to validating his opinion based on the late-disclosed Jappinen article and ATS 

guidelines. (Doc. 161, #9869–70). But, as noted above, the Court is excluding those 

references.

In short, Pue has not shown that his initial report provides a reliable basis for 

his general causation opinion. To the contrary, his opinion contradicts the express

findings set forth in the Hessel article, and he provides no good justification for why 

that is so. Without more, his opinion amounts to sheer speculation. In re Scrap Metal, 

527 F.3d at 530. It is not “supported by appropriate validation—i.e., ‘good grounds,’ 

based on what is known.” Daubert, 509 U.S. at 590. Thus, the Court excludes Pue’s 

general causation testimony in its entirety.

c. Pue cannot testify as to specific causation.

Adkins also believes Pue should be permitted to testify as to specific causation. 

However, showing specific causation usually requires conducting a differential 

diagnosis. Pluck, 640 F.3d at 678. And here, Pue admitted his specific causation 

opinion relied not on his own differential diagnosis but on the differential diagnosis 

that Gomes performed. (Doc. 120, #8058). 

Granted, at the Daubert hearing, Adkins’s counsel disputed that Pue did not 

perform his own differential diagnosis. (Doc. 161, #9852–54). But in the briefing, 

Adkins told a different story: “[Marathon complains] that Dr. Pue failed to perform a 

differential diagnosis. ... [T]his argument fails because Dr. Pue relied on the thorough 

differential diagnosis performed by Dr. Gomes.” (Doc. 148, #9697). 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 39 of 48 PAGEID #: 10024
40

In any event, the Court agrees Pue’s reports do not detail the analysis normally 

demanded for an expert to reliably state their own conclusion on specific causation. 

Assessing a differential diagnosis’s sufficiency and reliability—and therefore 

admissibility—requires the Court to answer three questions: “(1) Did the expert make 

an accurate diagnosis of the nature of the disease? (2) Did the expert reliably rule in 

the possible causes of it? (3) Did the expert reliably rule out the rejected causes?” 

Tamraz v. Lincoln Elec. Co., 620 F.3d 665, 674 (6th Cir. 2010). Here, given the gaps 

in Pue’s general causation opinion, he did not sufficiently “rule in” H2S fumes as a 

possible cause of Adkins’s injury.

Further, Pue cannot base his opinion on Gomes. As described below, the Court 

also excludes Gomes’s specific causation opinion for insufficient disclosure. Without 

Pue establishing his own foundation, then, it should go without saying that Pue may 

not simply parrot an otherwise excluded expert’s inadmissible opinion. And even if 

Pue claimed he simply used Gomes’s reports as a source of data for Pue to reach his 

own opinion, that won’t work. As noted below, Gomes has never pointed to any 

scientific or peer-reviewed source to validate his theory of injury. (See Doc. 55, #2614–

17; Doc. 55-16). So much like Pue, Gomes has not performed a reliable differential 

diagnosis because he did not adequately “rule in” H2S fumes. Therefore, Pue also may 

not testify as to specific causation. 

2. Gomes Cannot Testify As To Causation.

With Pue’s opinions out, that leaves Gomes as the only other potential 

candidate to provide both a general causation and a specific causation opinion. For 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 40 of 48 PAGEID #: 10025
41

his part, Adkins’s counsel says Gomes may state both causation positions as a nonretained, treating physician. (Doc. 32, #462; Doc. 146, #9677; Doc. 161, #9913). And 

Gomes reaches a causation opinion in his letter: “[Adkins’s] continued exposure to 

chemical fumes contributed to [his] decline in lung function and exacerbated his preexisting asthma” and “his pulmonary condition was aggravated by a high level 

exposure in 05/2012.” (Doc. 55-16, #2963). 

But that raises the question: Is Gomes testifying as a treating physician or a 

traditional expert? If deemed a traditional expert, he must produce a report that 

meets Rule 26(a)(2)(B)’s strictures in order to testify at trial. But here, Gomes’s fourpage letter (his only plausible “report”) falls well short of that standard. (Doc. 55-16). 

First, the only outside evidence his “report” references came from Adkins’s counsel. 

It opens: “Dear [Adkins’s counsel], I have reviewed medical records and material 

safety data sheet and other information provided by your office for evaluation of the 

above referenced individual.” (Id. at #2960). Even then he claims to have reviewed

only the following: (1) “Early medical history 2006-2012,” (2) “Injury Report,” 

(3) “Marathon company report and subsequent records,” and (4) “Various treatment 

records.” (Id.). Second, throughout the opinion, Gomes does not cite any scientific

studies, peer-reviewed articles, or similar sources. Likewise, the sources he does 

reference provide no peer-based validation to support his conclusion that H2S 

“contributed to” and “exacerbated” Adkins’s condition. Third, while perhaps a less 

egregious disclosure shortcoming, Gomes nowhere lists his rates. See Fed. R. Civ. P. 

26(a)(2)(B)(vi).

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 41 of 48 PAGEID #: 10026
42

That said, if Gomes is a treating physician testifying within the scope of his 

diagnosis and treatment, his letter is enough. See id. at 26(a)(2)(C). After all, a Rule 

26(a)(2)(B) “report is not required when a treating physician testifies within a 

permissive core on issues pertaining to treatment, based on what he or she learned 

through actual treatment and from the plaintiff’s records up to and including that 

treatment.” Fielden v. CSX Transp., Inc., 482 F.3d 866, 871 (6th Cir. 2007).

“Generally a treating physician can provide expert testimony regarding a 

patient’s illness, the appropriate diagnosis, and the cause of the illness even if the 

physician is not among the world’s foremost authorities.” Thomas v. Novartis 

Pharms. Corp., 443 F. App’x 58, 62 (6th Cir. 2011). But not always. “[C]ourts are more 

likely to require a treating physician to provide an expert report if the condition at 

issue leaves room for debate as to the specific ailment and its sources.” Fielden, 482 

F.3d at 871 (citing Gonzalez v. Exec. Airlines, Inc., 236 F.R.D. 73, 81 (D.P.R. 2006)). 

So where do Gomes’s causation opinions place him? Making that determination 

requires considering multiple factors: 

(1) whether the alleged treating physician was retained to provide 

expert testimony; (2) whether the physician formed his or her opinions 

at the time of treatment or in anticipation of litigation; (3) whether the 

lack of a full expert report would implicate Rule 26’s purposes of 

avoiding surprise and unnecessary depositions; (4) whether any expert 

opinion on causation was formed during the course of treatment; and 

(5) whether the claimed physician will testify to issues beyond those 

ordinarily present in his or her medical training.

Barnes v. CSXT Transp., Inc., No. 3:13-cv-525, 2017 WL 1334303, at *13 (W.D. Ky. 

Apr. 7, 2017) (citing Fielden, 482 F.3d at 870–73). “[W]here the treating physician’s 

opinion is rendered in anticipation of litigation, courts have held that ‘causation is 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 42 of 48 PAGEID #: 10027
43

beyond the scope of the testimony a treating physician may provide without tendering 

an expert disclosure report.’” Mohney v. USA Hockey, Inc., 138 F. App’x 804, 810–11 

(6th Cir. 2005) (citation omitted)); Jett v. CSX Transp., Inc., No. 2007–162, 2009 WL 

899626, at *3 (E.D. Ky. Mar. 31, 2009) (noting a court should consider “whether there 

is room for debate as to causation”). A plaintiff bears the burden of showing a full 

report is not required. Avendt v. Covidien Inc., 314 F.R.D. 547, 559 (E.D. Mich. 2016)

(citation omitted).

Start with those factors in Adkins’s and Gomes’s favor. Adkins claims Gomes

has not been retained to provide expert testimony.9 (Doc. 146, #9677). And as a 

clinical pulmonologist, Gomes has medical training and experience recognizing and 

diagnosing respiratory injuries. Those two points help Adkins.

The remaining factors, though, cut against labeling Gomes a treating 

physician for disclosure purposes. First, Adkins did not see Gomes until February 18, 

2016—months after this litigation began in Louisiana. (Doc. 55, #2645–46). Gomes

was first contacted and hired by Adkins’s counsel, not Adkins himself. (Id.). Indeed, 

Adkins’s counsel attended some of Gomes’s appointments with Adkins. (Id.). In sum,

Adkins’s counsel clearly contacted Gomes “in anticipation of litigation.”

Second, a full report from Gomes could have avoided “surprise and unnecessary 

depositions” because Adkins’s condition left room for debate on causation. Even if H2S 

9 Granted, there is some ambiguity around this. Dr. Gomes testified in the deposition that 

his employer, Ochsner Clinic, bills Adkins’s counsel directly. (Doc. 55, #2647, 2650). What is 

less clear, though, is whether this billing accounts just for Dr. Gomes’s time preparing for 

trial or also for Dr. Gomes’s time examining Adkins. If the latter, it is difficult to say Dr. 

Gomes is not “retained” for purposes of trial. 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 43 of 48 PAGEID #: 10028
44

exposure could cause Adkins’s injury, it certainly is not the only possible cause. 

Adkins himself admits to exposure to other potential irritants, including seasonal 

allergies, asbestos, tungsten/cobalt, dust, and cleaning chemicals. (Doc. 119, #7835; 

Doc. 52-4, #1876). As the Sixth Circuit has recognized, “[i]n such circumstances, an 

opposing party will be less prepared to depose a treating physician without an expert 

report.” Fielden, 482 F.3d at 871. Without the deposition, Marathon would have 

received next to no notice of his testimony’s scope.

Third, Gomes likely did not form his causal opinion in the “course of 

treatment.” At his first visit with Adkins February 18, 2016, Gomes performed 

pulmonary tests but did not pinpoint any given cause. (See Doc. 55-9). Then, at his 

second visit June 6, 2016, Gomes attributed Adkins’s injury to “toxic fume inhalation”

in a post-visit summary. (Doc. 55-11, #2916). But recall that Adkins’s counsel 

attended this appointment, which occurred well after Adkins and his counsel had sued 

Marathon on this same “toxic fumes” theory. (Doc. 55, #2645).

Moreover, Gomes appears to have formed his causation opinion based on 

selective information Adkins’s counsel provided. In his letter addressed to Adkins’s 

counsel, Gomes admits he reached his conclusions after “review[ing] medical records 

and material safety data sheet and other information provided by your office for 

evaluation of [Adkins].” (Doc. 55-16, #2960). Gomes’s reliance on Adkins’s counsel—

rather than Adkins alone—further shows Gomes did not reach these opinions in the 

“course of treatment.” See Mohney, 138 F. App’x at 810–11 (recognizing a physician 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 44 of 48 PAGEID #: 10029
45

needed to submit an expert report where they reached their causation opinion 

through information provided by counsel and long after the relevant events).

Balancing the various factors, the Court concludes Gomes is a traditional 

expert. Thus, his proposed testimony regarding general and specific causation is 

expert testimony offered absent a Rule 26(a)(2)(B) expert report. See Harville v. 

Vanderbilt Univ., Inc., 95 F. App’x 719, 724–25 (6th Cir. 2003); Mohney, 138 F. App’x 

at 810–11. That presumptively warrants exclusion. 

Adkins responds that Gomes did nothing to “depart from standard treating and 

diagnostic procedures in formulating his diagnosis of [his] occupation lung disease

and its causes.” (Doc. 146, #9677). And Adkins argues Marathon has made “no cogent 

application of Daubert” or Rule 702 to exclude Gomes’s opinion as a treating 

physician. (Id.).

But it is Federal Rule of Civil Procedure 26, not Federal Rule of Evidence 702, 

that derails Gomes’s opinions.

10 While Gomes perhaps did not depart from a treating 

physician’s standard procedures in diagnosing Adkins’s symptoms, a diagnosis alone 

does not always prove causation. See Bowles v. Novartis Pharm. Corp., No. 3:12-cv145, 2013 WL 5297257, at *3–4 (S.D. Ohio Sept. 19, 2013) (“There is a distinction 

between diagnosing a medical condition and determining its cause.”). Especially 

where, as here, many potential causes could be to blame, a party must provide a Rule 

26(a)(2)(B)-compliant expert report. See Fielden, 482 F.3d at 871. And anyway, 

10 Gomes’s failure to provide an expert report has also limited the Court’s ability to assess 

Gomes’s expert opinions under Rule 702 and Daubert. His summary disclosures do not 

contain the level of detail typically required for a court to assess reliability.

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 45 of 48 PAGEID #: 10030
46

Adkins never addresses that his counsel engaged Gomes months after suing 

Marathon on this same causation theory. That fact weighs heavily in the Court’s 

conclusion here.

Finding Adkins did not comply with Rule 26(a)(2)(B) in disclosing Gomes’s 

opinion, the Court returns to the Howe factors to determine whether that deficient 

disclosure should render Gomes’s causation opinions inadmissible. 801 F.3d at 748.

And applying those factors, the Court concludes the failure here was not substantially 

justified or harmless.

Gomes’s letter offered virtually no hint as to the “how” and “why” of his 

causation opinions or their bases. That left Marathon unable to meaningfully prepare 

for his deposition. Here again, the causation testimony is crucial. And neither Adkins 

nor Gomes explain Gomes’s failure to compile an expert report other than their 

erroneous belief he is an ordinary treating physician. Sure, Marathon deposed Gomes

early and so had time to cure the surprise. Nonetheless, on balance, the Court finds 

that Gomes’s failure to submit a traditional expert report is not justified or harmless. 

See Harville, 95 F. App’x at 724–25 (affirming a district court’s exclusion of a 

physician’s expert testimony for failure to issue a Rule 26(a)(2)(B) report).

Finally, like with Pue, no other sanction besides exclusion is reasonable.

Gomes’s deficient “report” has similarly frustrated the Court’s ability to perform its

gatekeeping function under Rule 702 and Daubert. Indeed, Gomes is worse. Even his 

deposition lacks a meaningful discussion of any scientific or peer-reviewed support 

he relied on when forming his causation theory. (See, e.g., Doc. 55, #2614–17 (failing 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 46 of 48 PAGEID #: 10031
47

to provide these bases in the face of a direct request)). This further shows exclusion 

is the proper outcome. 

Taken together, Gomes’s failure to comply with Rule 26(a)(2)(B) is not 

substantially justified or harmless. Gomes’s general and specific causation opinions 

are excluded. Fed. R. Civ. P. Rule 37(c)(1).

In sum, the Court excludes both Pue’s causation opinions and Gomes’s

causation opinions. Without these opinions, Adkins does not have evidence sufficient 

to create a genuine dispute as to medical causation. And without that evidence,

Adkins cannot prevail at trial on any of his three claims. Accordingly, the Court 

GRANTS summary judgment in Marathon’s favor on those claims. See Harville, 95 

F. App’x at 724–25 (affirming grant of summary judgment in part because expert 

testimony was excluded under Rule 37).

Finally, because the Court has found Marathon entitled to summary judgment 

on each of Adkins’s claims, Adkins necessarily cannot prevail on his own Motion for 

Partial Summary Judgment. (Docs. 130, 135). Accordingly, the Court DENIES that 

motion. 

CONCLUSION

For the above reasons, the Court GRANTS Marathon Petroleum Company 

LP’s Motion for Summary Judgment (Doc. 128) and DISMISSES Adkins’s Second 

Amended Complaint (Doc. 18) WITH PREJUDICE. Accordingly, the Court 

DENIES Adkins’s Motion for Partial Summary Judgment (Docs. 130, 135). Moreover, 

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 47 of 48 PAGEID #: 10032
48

the Court DENIES all other pending Motions AS MOOT. The Court DIRECTS the 

Clerk to ENTER JUDGMENT and TERMINATE this matter from the docket.

SO ORDERED.

May 4, 2023

DATE DOUGLAS R. COLE

 UNITED STATES DISTRICT JUDGE

Case: 1:17-cv-00643-DRC Doc #: 163 Filed: 05/04/23 Page: 48 of 48 PAGEID #: 10033