Cibilic et al v. BP Exploration & Production, Inc. et al

Filing 34

ORDER AND REASONS granting 30 Motion for Summary Judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo on 3/20/17. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PERO CIBILIC

CIVIL ACTION

VERSUS

NO: 15-995

BP EXPLORATION & PRODUCTION ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court is Defendant’s Motion for Summary Judgment (Doc.
30). For the following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Pero Cibilic is an oyster fisherman who aided in the oil spill
cleanup in the aftermath of BP’s Deepwater Horizon oil spill in 2010. In 2014,
Plaintiff was diagnosed with lung cancer, and he brought this action against
BP Exploration & Production Inc. and BP America Production Company
(collectively, “BP”) alleging that his lung cancer resulted from exposure to oil
and dispersants while working in the spill response.
This case is a Back-End Litigation Option case pursuant to the
Deepwater Horizon Medical Benefits Class Action Settlement (“Medical
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Settlement”) reached in the multi-district litigation of In re Oil Spill by the Oil
Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010. The Medical
Settlement provides a process for class members to sue BP for physical
conditions that manifested after April 2012. Plaintiff has brought claims for
negligence, gross negligence, negligence per se, and punitive damages under
general maritime law.
Defendants have filed the instant Motion for Summary Judgment
alleging that Plaintiff cannot prove causation.

Plaintiff has not filed an

opposition to this Motion. The Court may not, however, simply grant the
instant Motion as unopposed. The Fifth Circuit approaches the automatic
grant of dispositive motions with considerable aversion. 1 Accordingly, this
Court has considered the merits of the Defendants’ Motion.
LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” 2 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 3

See, e.g., Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702
F.3d 794, 806 (5th Cir. 2012); Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (per
curiam); John v. State of Louisiana (Bd. of Trs. for State Colls. and Univs.), 757 F.2d 698,
709 (5th Cir.1985).
2 Fed. R. Civ. P. 56(c) (2012).
3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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In determining whether the movant is entitled to summary judgment,
the Court views facts in the light most favorable to the non-movant and draws
all reasonable inferences in his favor. 4 “If the moving party meets the initial
burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial.” 5 Summary judgment is
appropriate if the non-movant “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case.” 6 “In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial.” 7 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 8 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 9

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004) (internal citations omitted).
8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
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LAW AND ANALYSIS
Pursuant to the Medical Settlement, a class member “who did not opt
out of the agreement surrendered their rights to sue BP for medical conditions
related to the oil spill in return for defined compensation benefits. One
exception, however, allows class members who did not opt out of the Medical
Benefits Settlement to bring suit against BP for ‘Later-Manifested Physical
Conditions’ (‘LMPCs’).” 10 Suits seeking recovery for LMPCs are referred to as
Back-End Litigation Options (“BELO”) suits. The Medical Settlement sets out
certain factors that a class member must prove to succeed on his BELO claim
and others which need not be proven. For example, a class member does not
have to prove BP’s fault for his LMPC or that he was exposed to oil and
dispersants. However, the Medical Settlement does not dispense of a class
member’s obligation to prove causation.

Indeed, the Medical Settlement

expressly provides that the issue of whether the class member’s LMPC “was
legally caused by his or her exposure to oil, other hydrocarbons, and other
substances” may be litigated at trial. In addition, BP may challenge whether
there exists any alternative causes of the class member’s LMPC. Accordingly,
Defendants argue that Plaintiff cannot prove causation.
“Under the general maritime law, a party’s negligence is actionable only
if it is a ‘legal cause’ of the plaintiff’s injuries. [L]egal cause is something more
than ‘but for’ causation, and the negligence must be a ‘substantial factor’ in the
injury.” 11 Here, Defendants argue that Plaintiff cannot show that his exposure
Piacun v. BP Expl. & Prod., Inc., No. 15-2963, 2016 WL 7187946, at *3 (E.D. La.
Dec. 12, 2016).
11 Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992) (internal
quotations omitted).
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to oil and dispersants caused his lung cancer because he has not retained an
expert to testify to such. In general, “when the conclusion regarding medical
causation is not one within common knowledge, expert medical testimony is
required to prove causation.” 12 Certainly, the causal link between exposure to
oil and dispersants and lung cancer is not within the layperson’s common
knowledge. “In a toxic tort suit such as this one, the plaintiff must present
admissible expert testimony to establish general causation as well as specific
causation.” 13
Plaintiff has not disclosed the name of any expert from which he intends
to elicit an opinion on causation. In addition, Plaintiff has failed to oppose this
motion and put forth any evidence that he may have of causation. Accordingly,
Plaintiff cannot succeed on a crucial element of his claims against Defendants,
and his claims must be dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment
is GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 20th day of March, 2017.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 524 (E.D. La. 2002); see Pfiffner
v. Correa, 643 So. 2d 1228, 1234 (La. 1994).
13 Seaman v. Seacor Marine LLC, 564 F. Supp. 2d 598, 600 (E.D. La. 2008), aff’d sub
nom. Seaman v. Seacor Marine L.L.C., 326 F. App’x 721 (5th Cir. 2009).
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