Dorgan v. BP PLC et al

Filing 27

ORDER AND REASONS: IT IS ORDERED that Defendant's 24 Motion for Summary Judgment is GRANTED. Signed by Judge Susie Morgan on 2/20/2024. (pp)(copy to: Sheri Allen Dorgan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHERI ALLEN DORGAN,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-3367

BP PLC, ET AL.,
Defendants

SECTION "E" (5)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment1 filed by Defendants, BP
Exploration & Production, Inc., BP America Production Company, and BP p.l.c.
Defendants seek judgment in their favor2 on all of Plaintiff Sheri Allen Dorgan’s claims,
arguing that Plaintiff has “insufficient admissible evidence to connect her alleged medical
conditions to exposure to oil or dispersants.”3 The motion is unopposed. Accordingly, the
Court considers Defendants’ statement of uncontested facts to be admitted pursuant to
Eastern District of Louisiana Local Rule 56.2.4 Although this dispositive motion is
unopposed, summary judgment is not automatic, and the Court must determine whether
Defendants are entitled to judgment as a matter of law.5 For the reasons that follow, the
motion is GRANTED.
BACKGROUND
This 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

R. Doc. 24.
Throughout their pleadings, Defendants ask the Court to “dismiss” Plaintiff’s claims “with prejudice.”
R. Doc. 24 at p. 1; R. Doc. 24-1 at pp. 1, 6. While the effect of summary judgment may be to dismiss a
Plaintiff’s claims with prejudice, what Defendants seek here is judgment in their favor in accordance with
Federal Rule of Civil Procedure 56. See Comparison of the Summary-Judgment Motion With Other
Pretrial Motions, 10A Fed. Prac. & Proc. Civ. § 2713 (4th ed.).
3 R. Doc. 24 at p. 1.
4 “All material facts in the moving party’s statement will be deemed admitted, for purposes of the motion,
unless controverted in the opponent’s statement.”
5 See, e.g, Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006); Fed. R. Civ. P. 56(a).
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exposure to oil and/or other chemicals used during the oil spill response (e.g.,
dispersant).”6
Plaintiff sued in 2017, alleging that soon after the spill in April 2010, she was
exposed to “the hydrocarbons and dispersants in the air, water[,] and land in the areas
where she lived, worked, walked[,] and waded.”7 Plaintiff alleges she was “ultimately
diagnosed with Benzene Toxicity, leading to Immune Disorder, Reduced Kidney
Function, Stomach and Endocrine Gland Disorders, and Hypothyroidism.”8
In May 2022, this case was severed from the multidistrict litigation docket and
assigned to this Court.9 The Court entered a Scheduling Order, which set a June 16, 2023,
deadline for Plaintiff to submit her expert reports.10 Plaintiff did not submit any such
reports by that deadline nor in the time since.
On June 27, 2023, Defendants submitted this motion for summary judgment,
arguing they are entitled to judgment in their favor because Plaintiff, by not introducing
expert testimony, has failed to meet her burden to prove causation in this toxic tort case.11
Plaintiff has not responded, so the motion is unopposed.
LEGAL 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
of law.”12

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.).
7 R. Doc. 1 at p. 2.
8 Id. See also R. Doc. 24-2.
9 R. Doc. 16.
10 R. Doc. 21 at p. 8.
11 See R. Doc. 24-1.
12 Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
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“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 nonmoving party.15
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.16
If the dispositive issue is one for which the moving party will bear the burden of
persuasion 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.’”17 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 nonmoving
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.18
On the other hand, if the dispositive issue is one on which the nonmoving 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 nonmovant’s claim, or (2) demonstrating there is no evidence in the record to

DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (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 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
17 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
18 Celotex, 477 U.S. at 322–24.
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establish an essential element of the nonmovant’s claim.19 When proceeding under the
first option, if the nonmoving party cannot muster sufficient evidence to dispute the
movant’s contention that there are no disputed facts, a trial would be useless, and the
moving party is entitled to summary judgment as a matter of law.20 When, however, the
movant is proceeding under the second option and is seeking summary judgment on the
ground that the nonmovant has no evidence to establish an essential element of the claim,
the nonmoving 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.”21 Under either scenario, the burden then shifts back to the movant to
demonstrate the inadequacy of the evidence relied upon by the nonmovant.22 If the
movant meets this burden, “the burden of production shifts [back again] 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).”23 “Summary judgment should be
granted if the nonmoving party fails to respond in one or more of these ways, or if, after
the nonmoving party responds, the court determines that the moving party has met its

Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S. at 322–24, and
requiring the Movers to submit affirmative evidence to negate an essential element of the nonmovant’s
claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an essential
element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in Celotex, and requiring
the movant to make an affirmative presentation to negate the nonmovant’s claims on summary judgment);
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. and Pro. §2727.1 (2016) (“Although
the Court issued a five-to-four decision, the majority and dissent both agreed as to how the summaryjudgment burden of proof operates; they disagreed as to how the standard was applied to the facts of the
case.” (internal citations omitted)).
20 First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50 (1986).
21 Celotex, 477 U.S. at 332–33.
22 Id.
23 Celotex, 477 U.S. at 332–33, 333 n.3.
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ultimate burden of persuading the court that there is no genuine issue of material fact for
trial.”24
Still, “unsubstantiated 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 the claim.
‘Rule 56 does not impose 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
LAW AND ANALYSIS
“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” to the oil spill26 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.’”27 “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.”28
“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 plaintiff’s burden in a toxic tort case.”29 Introduction of these facts, through

Id.; see also First Nat’l Bank of Ariz., 391 U.S. at 289.
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 Medical Settlement Section VIII(G)(3)a); 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).
27 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)).
28 Id.
29 Allen v. Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996).
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scientific knowledge, is a firm requirement: “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.”30
Plaintiff has not introduced any expert testimony and thus cannot prove a crucial
element of her claims against Defendants. Courts have routinely granted summary
judgment in favor of BP where a B3 plaintiff has failed to introduce expert testimony.31
This Court will do the same.
CONCLUSION
Plaintiff has not introduced expert testimony to prove the causation element of her
claims, and Defendants’ Motion for Summary Judgment is unopposed. Accordingly;
IT IS ORDERED that Defendant’s Motion for Summary Judgment is
GRANTED. A separate judgment will be entered in favor of Defendants BP Exploration
& Production, Inc., BP America Production Company, and BP p.l.c. and against Plaintiff
Sheri Allen Dorgan as to all claims.32
New Orleans, Louisiana, this 20th day of February, 2024.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Clerk to notify via mail and e-mail:
Sheri Allen Dorgan
4455 Clipper Cove
Destin, FL 32541
[e-mail]

30 Seaman v. Seacor Marine LLC, 564 F. Supp. 2d 598, 600 (E.D. La. 2008) (emphasis added), aff'd sub
nom. Seaman v. Seacor Marine L.L.C., 326 F. Appx. 721 (5th Cir. 2009).
31 See R. Doc. 24-1 at p. 6 n.13 (collecting cases).
32 See R. Doc. 1.

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