Card v. BP Exploration & Production, Inc. et al
Filing
48
ORDER AND REASONS granting 47 Motion for Summary Judgment for the reasons set forth in document. Signed by Judge Sarah S. Vance on 12/20/2022. (mm)
Case 2:17-cv-03121-SSV-DPC Document 48 Filed 12/20/22 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LORA ANN CARD
CIVIL ACTION
VERSUS
NO. 17-3121
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION “R” (2)
ORDER AND REASONS
Before the Court is BP Exploration & Production, Inc., BP American
Production Company, and BP p.l.c.’s (collectively the “BP parties”) unopposed
motion for summary judgment.1
For the following reasons, the Court grants defendants’ motion for summary
judgment.
I.
BACKGROUND
This case arises from plaintiff’s alleged exposure to toxic chemicals following
the Deepwater Horizon oil spill in the Gulf of Mexico. Plaintiff alleges that she
performed cleanup work after the Deepwater Horizon oil spill in 2010.2 Plaintiff
1
2
R. Doc. 47. The remaining defendants, Halliburton Energy Services, Inc.,
Transocean Deepwater, Inc., Transocean Holdings, LLC, and Transocean
Offshore Deepwater Drilling, Inc. join the BP parties’ motion. R. Doc. 47-1
at 1 n.1.
R. Doc. 1-1 at 5, 8.
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asserts that, as part of this work, she was exposed to crude oil and dispersants. 3
Plaintiff also represents that this exposure has resulted in the following conditions:
shortness of breath, respiratory abnormalities, acute upper respiratory tract
infection, sinusitis, persistent hand pains, body swelling, contact dermatitis,
eczema, a lump on her right breast, abdominal pains, gastroenteritis, chest pains,
cardiomyopathy, two heart attacks, depression, headache, memory loss, nausea,
dizziness, and loss of smell and appetite.4
Plaintiff’s case was originally part of the multidistrict litigation (“MDL”)
pending before Judge Carl J. Barbier. Her case was severed from the MDL as one
of the “B3” cases for plaintiffs who either opted out of, or were excluded from, the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement. 5 Card
is a plaintiff who opted out of the settlement.6 After plaintiff’s case was severed, it
was reallocated to this Court.
Plaintiff asserts claims for general maritime
negligence, negligence per se, and gross negligence against the defendants as a
result of the oil spill and its cleanup. 7 On November 10, 2021, the Court issued a
scheduling order that established, among other deadlines, that plaintiff’s expert
3
4
5
6
7
Id. at 5.
R. Doc. 47-3 at 1.
In re Oil Spill by Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr.
20, 2010, No. MDL 2179, 2021 WL 6053613, at *2, 12 & n.12 (E.D. La. Apr.
1, 2021).
R. Doc. 1-1 at 2.
R. Doc. 31 ¶¶ 19-49.
2
Case 2:17-cv-03121-SSV-DPC Document 48 Filed 12/20/22 Page 3 of 8
disclosures had to be “obtained and delivered” to defense counsel by no later than
November 10, 2022. 8 Defendants now move for summary judgment, arguing that,
because plaintiff has not identified any expert testimony, she is unable to carry her
burden on causation. 9 Plaintiff does not oppose defendants’ motion. The Court
considers the motion below.
II.
LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc) (per curiam). “When assessing whether a dispute to any material fact
exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from
making credibility determinations or weighing the evidence.” Delta & Pine Land
Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008). All
reasonable inferences are drawn in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts
and conclusions of law’ are insufficient to either support or defeat a motion for
8
9
R. Doc. 39 at 1.
R. Doc. 43 -1.
3
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summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir.
1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075. “No genuine
dispute of fact exists if the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481
(5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (quoting
Golden Rule Ins. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
“[T]he
nonmoving party can defeat the motion” by either countering with evidence
sufficient to demonstrate the “existence of a genuine dispute of material fact,” or
by “showing that the moving party’s evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at
1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out
that the evidence in the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden then
4
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shifts to the nonmoving party, who must, by submitting or referring to evidence,
set out specific facts showing that a genuine issue exists. See id. at 324. The
nonmovant may not rest upon the pleadings, but must identify specific facts that
establish a genuine issue for resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule
56 ‘mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at
322)).
In the Fifth Circuit, a district court may not grant a “default” summary
judgment on the ground that it is unopposed. Morgan v. Fed. Express Corp., 114
F. Supp. 3d 434, 437 (S.D. Tex. 2015) (collecting cases). Even in the context of
unopposed motions for summary judgment, the movant must still show that there
is no genuine issue of material fact, and that it is entitled to summary judgment as
a matter of law. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 n.3 (5th Cir.
1995). When a motion for summary judgment is unopposed, a court may accept
the movant’s evidence as undisputed. Morgan, 114 F. Supp. 3d at 437 (quoting
UNUM Life Ins. Co. of Am. v. Long, 227 F. Supp. 2d 609 (N.D. Tex. 2002)).
Nevertheless, if the moving party fails to meet its burden, the Court must deny its
motion for summary judgment. Hetzel, 50 F.3d at 362 n.3.
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III. DISCUSSION
Plaintiff asserts claims for general maritime negligence, negligence per se,
and gross negligence against the defendants, as a result of the oil spill and its
cleanup. Defendants contend that, without admissible expert testimony, plaintiff
cannot prove that exposure to oil or dispersants was the legal cause of her alleged
injuries, and thus that she cannot prove a necessary element of her claims against
defendants. 10
“Under the general maritime law, a party’s negligence is actionable only if it
is a ‘legal’ cause’ of the plaintiff’s injuries.”
Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). “Legal cause” is more than
but-for causation; instead, the negligence “must be a ‘substantial factor’ in the
injury.” Id. To prevail in a toxic tort case, a plaintiff must show both general
causation and specific causation. See Knight v. Kirby Inland Marine, Inc., 482
F.3d 347, 351-52 (5th Cir. 2007) (in toxic tort cases, “the district court must
determine whether there is general causation,” and if so, “the district court must
determine whether there is admissible specific-causation evidence”). “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
10
R. Doc. 49.
6
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substance caused a particular individual’s injury.” Seaman v. Seacor Marine LLC,
326 F. App’x 721, 724 (5th Cir. 2009) (citing Knight, 482 F.3d at 351).
Expert testimony is required to establish general causation in toxic-tort cases
like this one. See McGill v. BP Expl. & Prod., Inc., 830 F. App’x 430, 433-34 (5th
Cir. 2020) (affirming summary judgment where plaintiff lacked admissible expert
testimony on general causation); see also Macon v. BP Expl. & Prod. Inc., No. 173548, 2022 WL 1811135, at *7 (E.D. La. June 2, 2022) (dismissing plaintiff’s claims
“[b]ecause expert testimony is required on [general causation]”).
“Scientific
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.” Allen v. Pa. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
Courts have also required expert testimony as to specific causation “when the
symptoms are not within the common knowledge of laypersons and not classified
as transient or temporary.” See Street v. BP Expl. & Prod. Inc., No. CV 17-3619,
2022 WL 1811144, at *3 (E.D. La. June 2, 2022); see also Troxler v. BP Expl. &
Prod., Inc., No. 17-4207, 2022 WL 1081193, at *2 (E.D. La. Apr. 11, 2022) (holding
that “the causal connection between exposure to oil or dispersants and [chemical
pneumonitis, gastrointestinal problems, breathing difficulties, and memory loss]
is not within the common knowledge of a layperson” and thus requires expert
testimony); Stephens v. BP Expl. & Prod. Inc., No. 17-4294, 2022 WL 1642136, at
7
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*4 (E.D. La. May 24, 2022) (“[W]ithout an expert opinion on specific causation,
Plaintiff cannot meet her burden of proof on her claims of sinusitis, upper
respiratory infection, abdominal cramps and pain, mood disorder, and
insomnia.”). Because plaintiff has not pointed to any admissible expert opinions
on either general or specific causation, she is unable to sustain her burden on
causation, and the Court therefore grants summary judgment. See Williams v. BP
Expl. & Prod., Inc., No. 18-9753, 2019 WL 6615504, at *11 (E.D. La. Dec. 5, 2019)
(“When a plaintiff has no expert testimony to prove his medical diagnosis or
causation at trial, the plaintiff’s suit may be dismissed at the summary judgment
stage.”).
IV.
CONCLUSION
For the foregoing reasons, the BP parties’ motion for summary judgment is
GRANTED. Plaintiff’s claims are DISMISSED WITH PREJUDICE.
20th day of December, 2022.
New Orleans, Louisiana, this _____
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
8
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