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

Filing 59

ORDER AND REASONS: granting 57 Motion for Summary Judgment, as stated herein. Signed by Judge Susie Morgan on 11/18/2022. (am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RENNELL BROWN,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-3101

BP EXPLORATION & PRODUCTION
INC., ET AL.,
Defendants

SECTION: “E” (4)

ORDER AND REASONS
The instant action is a “B3” case arising out of the 2010 Deepwater Horizon oil spill
in the Gulf of Mexico. 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 (e.g.,
dispersant).”1
Before the Court is a motion for summary judgment filed by BP Exploration &
Production Inc., BP America Production Company, BP p.l.c., Halliburton Energy Services,
Inc., Transocean Holdings, LLC, Transocean Deepwater, Inc., and Transocean Offshore
Deepwater Drilling, Inc. (collectively “Defendants”)2 against Rennell Brown (“Plaintiff”).
The motion was filed on October 11, 2022.3 Plaintiff’s opposition to the motion was due
on October 18, 2022.4 As of the date of this Order and Reasons, no opposition to the
instant motion has been filed, and Plaintiff has not moved for an extension of his deadline
to file an opposition brief. Defendants’ motion for summary judgment is, therefore,

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.).
2 R. Doc. 57. Halliburton Energy Services, Inc., Transocean Holdings, LLC, Transocean Deepwater, Inc.,
and Transocean Offshore Deepwater Drilling, Inc. joined in the motion for summary judgment filed by BP
Exploration & Production, Inc., BP America Production Company, and BP p.l.c. Id. at p. 1 n.1.
3 Id.
4 R. Doc. 57-4.
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unopposed. Although this dispositive motion is unopposed, summary judgment is not
automatic, and the Court must determine whether Defendants have shown they are
entitled to judgment as a matter of law.5
UNDISPUTED FACTS
Because the instant motion is unopposed, the Court considers Defendants’
statement of uncontested facts to be admitted pursuant to Local Rule 56.2. Plaintiff
alleges he was exposed to toxic chemicals beginning on or about April 20, 2010, while
performing Deepwater Horizon clean-up work in Moss Point and Biloxi, Mississippi.6
Plaintiff purportedly opted out of the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement.7 Plaintiff filed this lawsuit in 2017 claiming toxic exposure on
account of his clean-up work activity, which he alleges caused him to develop numerous
medical conditions.8 Plaintiff’s expert report deadline was September 23, 2022.9 Plaintiff
produced no expert reports or testimony connecting his conditions with the Deepwater
Horizon oil spill response by the September 23, 2022 deadline.10 Plaintiff made no expert
disclosures under Rule 26(a)(2)(C) of the Federal Rules of Civil Procedure by the
September 23, 2022 deadline either.11
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter

See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006); FED. R. CIV. P. 56(a).
R. Doc. 57-3 at ¶ 1.
7
Id. at ¶ 2.
8
Id. at ¶ 3.
9
Id. at ¶ 4.
10
Id. at ¶ 5.
11
Id. at ¶ 6.
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of law.”12 “An issue is material if its resolution could affect the outcome of the action.”13
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.”14 All reasonable inferences are drawn in favor of the non-moving party.15
While all reasonable inferences must be drawn in favor of the non-moving party, the nonmoving party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions or “only a scintilla of evidence.”16 There is no genuine issue of
material fact if, even viewing the evidence in the light most favorable to the non-moving
party, no reasonable trier of fact could find for the non-moving party, thus entitling the
moving party to judgment as a matter of law.17
“Although the substance or content of the evidence submitted to support or dispute
a fact on summary judgment must be admissible . . . the material fact may be presented
in a form that would not, in itself, be admissible at trial.”18
“[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.”19 To satisfy Rule 56’s burden of production, the moving party must do one of two
things: “the moving party may submit affirmative evidence that negates an essential

FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
14 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
15 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
16 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
17 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
18 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).
19 Celotex, 477 U.S. at 323.
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element of the nonmoving party’s claim” or “the moving party may demonstrate to the
Court that the nonmoving party’s evidence is insufficient to establish an essential element
of the nonmoving party’s claim.”20 If the moving party fails to carry this burden, the
motion must be denied. If the moving party successfully carries this burden, the burden
of production then shifts to the non-moving party to direct the Court’s attention to
something in the pleadings or other evidence in the record setting forth specific facts
sufficient to establish that a genuine issue of material fact does indeed exist.21
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim.22 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.23 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”24 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose

Id. at 331.
Id. at 322–24.
22 Id. at 331–32 (Brennan, J., dissenting).
23 See id. at 332.
24 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
20
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upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”25 Summary judgment is not automatic merely
because the motion is unopposed—the Court must determine whether the moving party
has shown they are entitled to judgment as a matter of law.26
LAW AND ANALYSIS
I.

Plaintiff has failed to present a genuine issue of material fact with
respect to his claims of injuries caused by exposure to oil and
dispersants because Plaintiff lacks expert testimony.
“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.”27 Once a plaintiff’s
diagnoses have been confirmed, the plaintiff has the burden of establishing general
causation and specific causation. “‘First, the district court must determine whether there
is general causation. Second, if it concludes . . . there is admissible general-causation
evidence, the district court must determine whether there is admissible specific-causation
evidence.’”28 “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.”29 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

Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
26 See, e.g., Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006); FED. R. CIV. P. 56(a).
27 R. Doc. 44-3 at p. 2; see also 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.); accord Perkins v.
BP Expl. & Prod.., Inc., No. 17-4467, 2022 WL 972276, at *2 (E.D. La. March 31, 2022).
28 Seaman v. Seacor Marine, L.L.C., 326 F. App’x 721, 722 (5th Cir. 2009) (quoting Knight v. Kirby Inland
Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007)).
29 Id.
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the plaintiff’s burden in a toxic tort case.”30
The United States Court of Appeals for the Fifth Circuit has held expert testimony
is required to establish general causation in toxic tort cases.31 In Seaman v. Seacor
Marine LLC, a vessel captain sued his former employer alleging his exposure to a host of
toxic chemicals on the job caused him to develop bladder cancer.32 After excluding the
vessel captain’s general causation expert testimony on a Daubert challenge,33 the district
court granted summary judgment.34 The district court reasoned, since there was no expert
testimony demonstrating the exposure the vessel captain alleged could cause his
complained-of symptoms to manifest in the general population, there was no genuine
issue of material fact.35 On appeal, the Fifth Circuit affirmed the district court’s ruling,
holding that “admissible expert evidence is [required in] toxic tort case[s]” given their
complexity.36 Put in the context of B3 cleanup worker claims, in Harrison v. BP
Exploration & Production, Inc., et al., this Court previously applied the Seaman rule,
thereby requiring a B3 toxic tort plaintiff to produce admissible expert testimony to
establish general causation.37
Whether expert testimony is needed to establish specific causation in B3 cleanup
cases is a thornier issue. Recently, Judge Barbier in Stephens v. BP Exploration &
Production, Inc., et al., relying on Guidry v. Dow Chemical Company38 and Gowdy v.

Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
Seaman, 326 F. App’x at 722; see also Stephens v. BP Expl. & Prod., No. 17-4294, 2022, WL 1642136 *
2-3 (E.D. La. June 24, 2022).
32 326 F. App’x at 722.
33 Id. at 726.
34 Id. at 729.
35 Id.
36 Id.
37 Harrison v. BP Expl. & Prod., et al., No. 17-4346 (E.D. La. July 1, 2022).
38 No. 19-12233, 2021 WL 4460505 (E.D. La. Sept. 29, 2021).
30
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Marine Spill Response Corporation,39 decided in a similar B3 cleanup worker case that a
general causation expert report in conjunction with specific evidence of a plaintiff’s
exposure was sufficient to permit a jury to conclude exposure to toxins in the oil and
dispersants more likely than not caused a plaintiff’s medical conditions—but only when
the medical conditions were within the layperson’s common knowledge.40 As such, under
Judge Barbier’s analysis, to determine whether a plaintiff must produce expert testimony
to establish specific causation, district courts are tasked with conducting a fact-intensive
analysis of whether complained-of symptoms fall within the common knowledge of a
juror.
Applying Seaman, Harrison, and Stephens to the case before this Court, even if
expert testimony is not required to establish specific causation because the injuries
Plaintiff alleges fall within the common knowledge of a juror and there is specific evidence
of Plaintiff’s exposure,41 Plaintiff still has failed to produce expert testimony establishing
general causation, which is required by the Fifth Circuit in toxic tort cases.42 Plaintiff has
not disclosed the name of any expert from which he intends to elicit an opinion on general
causation—much less provided an expert report. Again, the deadline to produce an expert
report was September 23, 2022.43
In sum, Plaintiff has produced no expert testimony to establish general causation,
a requirement set by the Fifth Circuit in toxic tort cases. Without expert testimony on
general causation, Plaintiff has failed to present a genuine issue of material fact with
respect to his claims of injuries allegedly caused by his exposure to toxins in oil and
925 F.3d 200, 206 (5th Cir. 2019).
Stephens v. BP Expl. & Prod., No. 17-4294, 2022, WL 1642136 * 2-3 (E.D. La. June 24, 2022).
41 The Court is expressly not deciding this issue.
42 Seaman v. Seacor Marine, L.L.C., 326 F. App’x 721, 722 (5th Cir. 2009); see also Stephens, WL 1642136
at **2-3; Harrison, No. 17-4346.
43 R. Doc. 32 at p. 8.
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dispersants as a Deepwater Horizon cleanup worker. Accordingly, Defendants’ motion
for summary judgment should be granted.
CONCLUSION
IT IS ORDERED that the motion for summary judgment44 is GRANTED.
Judgment is granted in favor of Defendants BP Exploration & Production Inc., BP
America Production Company, BP p.l.c., Halliburton Energy Services, Inc., Transocean
Holdings LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. and against Plaintiff Rennell Brown on all claims.
New Orleans, Louisiana, this 18th day of November, 2022.

______ _________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

44

R. Doc. 57.

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