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

Filing 69

ORDER AND REASONS granting in part and denying in part 51 Motion for Partial Summary Judgment. Whether plaintiffs can request damages for certain alleged medical conditions will depend on the testimony presented at trial. Signed by Judge Lance M Africk on 06/15/2022. (ko)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALLEN WALKER, ET AL.

CIVIL ACTION

VERSUS

No. 17-3012

BP EXPLORATION & PRODUCTION, INC., ET AL

SECTION I

ORDER & REASONS
Before the Court is a motion1 for partial summary judgment filed by
defendants, BP America Production Company; BP Exploration & Production, Inc.; BP
p.l.c.; Halliburton Energy Service, Inc.; Transocean, Ltd.; Transocean Deepwater,
Inc.; Transocean Holdings, LLC; Transocean Offshore Deepwater Drilling, Inc.; and
Triton Asset Leasing GmbH (collectively, “defendants”). Plaintiffs, Allen Walker
(“Walker”) and Roxanne Walker (collectively, “plaintiffs”) oppose 2 the motion.
Defendants filed a reply 3 in support of the motion. For the reasons that follow, the
Court will grant the motion in part and deny the motion in part.
I. BACKGROUND
The instant action is a “B3” case arising out of the 2010 Deepwater Horizon oil
spill in the Gulf of Mexico. 4 B3 cases involve “claims for personal injury and wrongful
death due to exposure to oil and/or other chemicals used during the oil spill response

R. Doc. No. 51.
2 R. Doc. No. 54.
3 R. Doc. No. 57.
4 R. Doc. No. 6 (“Severing 780 Cases in the B3 Pleading Bundle and Re-allotting Them
Among the District Judges of the Eastern District of Louisiana”) (Barbier, J.).
1

(e.g., dispersant).” See In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of
Mexico, on Apr. 20, 2010, No. MDL 2179, 2021 WL 6053613, at *10 (E.D. La. Apr. 1,
2021) (Barbier, J.). During the course of the MDL proceedings, Judge Barbier
approved the Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, which included a Back-End Litigation Option (“BELO”) permitting
certain class members to sue BP for later-manifested physical conditions. Id. at *2.
The B3 plaintiffs, by contrast, either opted out of the class action settlement
agreement or were excluded from its class definition. Id. at *10 n.3. In any event, “B3
plaintiffs must prove that the legal cause of the claimed injury or illness is exposure
to oil or other chemicals used during the response.” 5
Allen Walker is a scuba diver who engaged in underwater photography and
videography during and after the Deepwater Horizon Oil Spill. 6 He alleges that his
first exposure occurred on May 20, 2010, and that he continued diving during the oil
spill due to representations made by BP that the Gulf waters were safe. 7
In the proposed pretrial order, plaintiffs allege that Walker’s medical issues
include “gastrointestinal problems including nausea, blood in urine and stool;
neurological damage including Trigeminal neuralgia, elevated levels of toxic
chemicals in the blood, decaying nails, vision loss and conjunctivitis, respiratory
problems including wheezing with shortness of breath, bronchitis, pneumonia,

R. Doc. No. 6, at 53 (“Case Management Order for the B3 Bundle”) (Barbier, J.); see
id. at 54 (noting that “proving causation will be a key hurdle for the B3 plaintiffs.”).
6 R. Doc. No. 1, at 17 ¶¶ 82–83.
7 Id. at 17 ¶ 83.
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burning of lungs, skin diseases including Melanoma, rashes, bruising, dermatitis,
eczema and psoriasis, fibromas, [Plantar] Fibromatosis, and bursitis.”
complaint, plaintiffs allege that Walker’s “symptoms include chronic
respiratory challenges of shortness of breath and throat irritation; neurologic
compromise with headaches, dizziness, mental fog, sleepless nights, depression and
anxiety; chronic gastrointestinal symptoms of nausea, vomiting and diarrhea with
blood in the stool; skin compromise with rashes, bruising and mobile small lumps
under the skin; and systemic complaints of extreme fatigue and flu-like symptoms.”8
Plaintiffs’ expert, Dr. Gerald Cook, has submitted separate reports as to
general and specific causation pertaining to Walker’s claimed injuries. 9 In their
motion for partial summary judgment, defendants submit that plaintiffs are required
to offer admissible expert testimony as to specific causation for all of Walker’s
injuries. 10 Defendants contend that plaintiffs have only submitted sufficient specific
causation expert testimony as to Walker’s chronic dermatitis, and they therefore
argue that the Court should enter summary judgment dismissing Walker’s claims as
to all other injuries. 11 Plaintiffs do not contest defendants’ argument that they have
only presented sufficient specific causation expert testimony as to chronic dermatitis,
but respond that expert testimony is not required to establish specific causation with

R. Doc. No. 59, at 8; see also R. Doc. No. 1, at 18 ¶ 84 (complaint); R. Doc. No. 53-3,
at 12–14 (expert report).
9 R. Doc. Nos. 53-3, 53-4.
10 R. Doc. No. 53-1, at 6.
11 Id. at 6–7.
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respect to Walker’s injuries, because they are temporary and acute forms of pain and
suffering, which are within the layperson’s common knowledge. 12
II. STANDARD OF LAW
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, a court determines that
there is no genuine dispute of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment always
bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The party seeking summary judgment need not produce evidence
negating the existence of a material fact; it need only point out the absence of evidence
supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co., 780 F.2d 1190,
1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory allegations should
suffice to require a trial when there is no evidence to support them even if the movant
lacks contrary evidence.”).
Once the party seeking summary judgment carries that burden, the
nonmoving party must come forward with specific facts showing that there is a
genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by
creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

12

R. Doc. No. 54, at 2.
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allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
“Although the substance or content of the evidence submitted to support or
dispute a fact on summary judgment must be admissible . . . the material may be
presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore
Logistical & Transp., LLC, 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted). The
party responding to the motion for summary judgment may not rest upon the
pleadings but must identify specific facts that establish a genuine issue. See
Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be
believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]
favor.” Id. at 255.
III. LAW AND ANALYSIS
B3 plaintiffs have the burden of proving that “the legal cause of the claimed
injury or illness is exposure to oil or other chemicals used during the response.” In re
Oil Spill by Oil Rig “Deepwater Horizon”, 2021 WL 6053613, at *11; accord Perkins
v. BP Expl. & Prod., Inc., No. 17-4476, 2022 WL 972276, at *2 (E.D. La. Mar. 31, 2022)
(Milazzo, J.). Under maritime law, “[l]egal cause is something more than ‘but for’
causation, and the negligence must be a ‘substantial factor’ in the injury.” Moreta v.
BP Expl. & Prod. Inc., No. 19-01204, 2020 WL 6822534, at *2 (E.D. La. Nov. 20, 2020)

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(Milazzo, J.) (quoting Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th
Cir. 1992)).
“Courts use ‘a two-step process in examining the admissibility of causation
evidence in toxic tort cases. First, the district court must determine whether there is
general causation. Second, if it concludes that there is admissible general-causation
evidence, the district court must determine whether there is admissible specificcausation evidence.’” Seaman v. Seacor Marine, LLC, 326 F. App’x 721, 722 (5th Cir.
2009) (quoting Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007))
(emphasis in original). “General causation is whether a substance is capable of
causing a particular injury or condition in the general population, while specific
causation is whether a substance caused a particular individual’s injury.” Id. (quoting
Knight, 482 F.3d at 351).
With respect to general causation, “[s]cientific knowledge of the harmful level
of exposure to a chemical, plus knowledge that the plaintiff was exposed to such
quantities, are minimal facts necessary to sustain the plaintiffs’ burden in a toxic tort
case.” Id. (quoting Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)). “A
plaintiff in such a case cannot expect lay fact-finders to understand medical
causation; expert testimony is thus required to establish causation.” Id.
While it is well-established that expert testimony is required to establish
general causation in toxic tort cases, the Fifth Circuit has not definitively addressed
whether, and to what extent, expert testimony is required to establish specific
causation in such cases. Notably, the Eleventh Circuit recently held that the “plaintiff

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must establish both general and specific causation through admissible, reliable
expert testimony” in a toxic tort action arising from the Deepwater Horizon Oil
Spill. In re Deepwater Horizon BELO Cases, 2022 WL 104243, at *2 (11th Cir. Jan.
11, 2022) (citation omitted). However, the Fifth Circuit has not yet foreclosed the
possibility that, at least in some circumstances involving toxic torts, “[e]xpert
testimony regarding general causation combined with specific evidence regarding the
nature of the decedent’s exposure may be sufficient[.]” Bell v. Foster Wheeler Energy
Corp., No. 15-6394, 2017 WL 889083, at *3 (E.D. La. Mar. 6, 2017) (Africk, J.).
In their motion for partial summary judgment, defendants contend that
plaintiffs must introduce admissible expert evidence to support medical causation,
which consists of three elements: a diagnosis, general causation, and specific
causation. 13 Defendants submit that Walker has only submitted expert testimony
addressing all three elements with respect to his claim for chronic dermatitis,
whereas the remainder of his health problems “lack one or more of the three
elements.” 14 Defendants also note that they intend to challenge the reliability of
plaintiffs’ general causation expert report. 15 Thus, consideration of general causation
must be deferred to trial.
Plaintiffs respond that “specific causation expert testimony is not necessary
here because Walker’s other complained-of injuries are acute, temporary forms of

R. Doc. No. 51-1, at 6.
14 Id. at 6–7.
15 R. Doc. No. 57, at 7.
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pain and suffering for which the issue of the causal relation to exposure to oil and/or
dispersants is ‘within the layperson’s common knowledge.’” 16
The factual record before the Court provides little detail as to when Walker
developed each of his claimed health issues and the duration of said issues. Without
such information, the Court cannot definitively opine on whether each of Walker’s
alleged health issues requires expert testimony to establish specific causation.
Accordingly, resolution as to some of Walker’s alleged health issues must be reserved
for trial.
To the extent that Walker intends to allege that any of his exposure-related
health problems persisted for an extended period of time, such problems cannot be
deemed to be “acute” or “temporary.” Indeed, notwithstanding plaintiffs’ attempt to
portray all of Walker’s health issues as temporary and acute in their opposition
memorandum, plaintiffs’ complaint and expert report explicitly designate some of
Walker’s health problems as “chronic,” including “chronic respiratory challenges of
shortness of breath and throat irritation,” “chronic gastrointestinal symptoms of
nausea, vomiting and diarrhea with blood in the stool,” and “chronic dermatitis.” 17
Additionally, plaintiff complains of conditions such as melanoma, trigeminal
neuralgia, and plantar fibromatosis, which are presumably neither temporary, nor
within the common understanding of a layperson.

R. Doc. No. 54, at 2 (quoting Guidry v. Dow Chem. Co., No. 19-12233, 2021 WL
4460505, at *2 (E.D. La. Sept. 29, 2021) (Feldman, J.)).
17 R. Doc. No. 1, at 18 ¶ 84; R. Doc. No. 53-3, at 12–14.
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To the extent that Walker intends to allege that he suffered some of his claimed
health issues concurrently with, or immediately after, exposure, it may be the case
that “[e]xpert testimony regarding general causation combined with specific evidence
regarding the nature of the decedent’s exposure may be sufficient[.]” Bell, 2017 WL
889083, at *3. 18 Consider, for instance, Guidry v. Dow Chemical Co., No. 19-12233,
2021 WL 4460505 (E.D. La. Sept. 29, 2021) (Feldman, J.), in which the Court
concluded that plaintiffs’ “eyes, nose, or throat irritation, coughing, choking or
gagging, or nausea, or headaches, dizziness, trouble breathing, or other respiratory
issues,” which arose during and after the release of ethyl acrylate from a chemical
facility, were “all forms of temporary pain and suffering.” Id. at *2. Because such
injuries were “within the layperson’s common knowledge,” the Court concluded that
expert testimony as to specific causation was not necessary. Id. at *2–3. 19

Defendants distinguish Bell on the basis that it was a mesothelioma case, wherein
“the causative connection between asbestos exposure and mesothelioma is widely
known and accepted,” which defendants contend is “just the opposite from what is
known about exposure to oil and dispersants, where general causation is highly
contested.” R. Doc. No. 57, at 5. It may ultimately be the case that mesothelioma cases
are distinguishable on issues of causation evidence because “almost no other causes
of mesothelioma [besides asbestos] exist in the United States.” Yarbrough v. Hunt S.
Grp., LLC, 2019 WL 4392519, at *6 (S.D. Miss. Sept. 12, 2019) (citing Michel v. Ford
Motor Co., No. 18-4738, 2019 WL 118008, at *5 (E.D. La. Jan. 7, 2019) (Vance, J.)).
However, defendants have not raised the sufficiency of plaintiffs’ general causation
evidence in the instant motion. Thus, the Court must defer analysis as to whether
plaintiffs’ general causation evidence is sufficient, in conjunction with evidence as to
Walker’s exposure, to permit a layperson to conclude that defendants’ negligence was
the legal cause of Walker’s injuries.
19 Defendants note that the Court in Guidry was applying Louisiana law rather than
maritime law, and they suggest that Louisiana’s rule is more “relaxed” than that of
maritime law, although they do not cite Fifth Circuit cases establishing this to be the
case. R. Doc. No. 57, at 5. While this Court applies maritime law in the instant
matter, it is not precluded from considering the Court’s analysis in Guidry as
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However, to the extent that Walker alleges chronic medical conditions—except
depression and anxiety, as detailed below—plaintiffs must present expert testimony
supporting specific causation. This holding extends not only to injuries impliedly or
explicitly designated as chronic conditions (e.g., melanoma, plantar fibromatosis,
chronic dermatitis, and chronic respiratory issues), but also to symptoms such as
coughing or nausea, insofar as Walker alleges that such symptoms persisted for
extended periods of time. Because plaintiffs have presented sufficient specific
causation expert testimony as to chronic dermatitis, they may proceed with their
claim as to chronic dermatitis at trial.
With respect to depression and anxiety, which plaintiffs allege that Walker
suffers from, 20 it is unclear whether plaintiffs intend to allege that these problems
result directly from exposure—in the sense that the chemicals to which Walker was
exposed caused physical neurological changes giving rise to these problems—or that
these problems result indirectly from exposure—in the sense that Walker experiences
depression and anxiety due to the hardship of his alleged ordeal with exposure and
various physical injuries and conditions.
If alleging the former, Walker would need expert testimony establishing
specific causation (in addition to general causation). However, if alleging the latter,
such allegations would sound more in the register of damages for “mental pain and
suffering,” or possibly “[l]oss of enjoyment of life”—both of which plaintiffs plead in

instructive, in the absence of Fifth Circuit precedent indicating that maritime law
necessitates a different mode of analysis.
20 R. Doc. No. 1, at 18 ¶ 84.
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their complaint. 21 The parties did not address this issue with any specificity. 22 The
Court will deny summary judgment as to mental health conditions, including
depression and anxiety. 23 Accordingly,
IT IS ORDERED that the motion is GRANTED IN PART and DENIED
IN PART as set forth herein. Whether plaintiffs can request damages for certain
alleged medical conditions will depend on the testimony presented at trial.
New Orleans, Louisiana, June 15, 2022.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

R. Doc. No. 1, at 31.
22 In a recent Jones Act case in which the plaintiff claimed to have depression
resulting from the accident and personal injury at issue, the Fifth Circuit reiterated
its “unwillingness to ‘hold that medical evidence or corroborating testimony is always
required for an award of mental anguish damages.’” Naquin v. Elevating Boats, LLC,
744 F.3d 927, 940 n.65 (5th Cir. 2014), overruled on other grounds by Sanchez v.
Smart Fabricators of Texas, LLC, 997 F.3d 564 (5th Cir. 2021) (quoting Migis v.
Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th Cir. 1998)). In the absence of expert
testimony, the court found it sufficient that the plaintiff’s “own testimony regarding
his mental anguish was supported by the testimony of his wife, his visits to doctors
and social workers, and his prescription use of an anti-depressant drug following the
accident.” Id.
23 Plaintiffs also allege that Walker suffers from “sleepless nights.” R. Doc. No. 1, at
18 ¶ 84. The exact nature of this health problem is not clear to the Court at this time.
However, it seems possible that this too might fall within “mental pain and suffering”
or “loss of enjoyment of life.” Accordingly, plaintiffs may proceed to trial with this
claim.
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