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

Filing 82

ORDER AND REASONS - IT IS ORDERED that Defendants' Motion for Summary Judgment (Doc. 66 ) is GRANTED IN PART. Plaintiff's claims are DISMISSED WITH PREJUDICE except for the claims for headaches and sore throat. Signed by Judge Jane Triche Milazzo on 3/15/2023. (sa)

Case 2:17-cv-03516-JTM-MBN Document 82 Filed 03/15/23 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHER GRIFFIN BROWN

CIVIL ACTION

VERSUS

NO. 17-3516

BP EXPLORATION & PRODUCTION,
INC. ET AL.

SECTION: “H”

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment for Lack of Specific
Causation Evidence (Doc. 66) filed by Defendants, BP America Production
Company, BP Exploration & Production, Inc., BP p.l.c., Halliburton Energy
Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and
Transocean Offshore Deepwater Drilling, Inc. (collectively “the BP parties”).
For the following reasons, this Motion is GRANTED IN PART.
BACKGROUND
This case is one among the “B3 bundle” of cases arising out of the
Deepwater Horizon oil spill. 1 This bundle comprises “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).” 2 These cases were originally part of a
multidistrict litigation (“MDL”) pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but

See In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
2 Id.
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the B3 plaintiffs either opted out of this agreement or were excluded from its
class definition. 3 Subsequently, Judge Barbier severed the B3 cases from the
MDL to be reallocated among the judges of this Court. 4 This case was
eventually reassigned to Section H. 5
Cher Griffin Brown was employed in the DWH oil spill response as a
shoreline cleanup worker on the beaches of Biloxi, Gulfport, and Pascagoula,
Mississippi. 6 She allegedly performed beach cleanup work, picking up oil and
tar balls. Plaintiff initially alleged that exposure to crude oil and chemical
dispersants caused her to develop a long list of adverse medical conditions,
including constipation, headaches, and sinus problems. 7 Pursuant to the
Court’s Order on April 19, 2022, Plaintiff identified the medical conditions for
which she would present expert evidence, as sore throat, hypertension, chest
pain, headaches, and joint pain. 8 Plaintiff asserts claims under the general
maritime law of negligence, negligence per se, and gross negligence with
respect to the spill and its cleanup. 9
Now before the Court is the BP Parties’ Motion for Summary
Judgment. 10 The BP Parties argue that Plaintiff has failed to produce
sufficient evidence to prove specific causation. Plaintiff opposes. 11

Id. at 2 n.3.
Doc. 6.
5 See Doc. 30.
6 Doc. 66-3 at 3.
7 Doc. 1-1 at 5.
8 Doc. 74-1 at 1.
9 See Doc. 33 at 7–15.
10 See Doc. 66.
11 Doc. 74.
3
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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.” 12 A genuine issue
of fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 13
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 her favor. 14 “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.” 15 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.” 16 “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.” 17 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the

Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
14 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
15 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
16 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
17 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
12
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necessary facts.” 18 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 19
LAW AND ANALYSIS
The BP Parties allege that Plaintiff has produced no admissible expert
testimony addressing specific causation, and in a toxic tort case such as this,
expert testimony as to specific causation is required. 20 Plaintiff does not
contest that Dr. Cook’s expert report fails to address specific causation. Rather,
Plaintiff argues that Dr. Cook’s general causation report in conjunction with
specific evidence of her exposure is sufficient to permit a jury to conclude that
her symptoms were caused by toxicants in the oil and dispersants. Specifically,
Plaintiff asserts, “when the medical conditions are either ‘within the common
knowledge of the jury’ or ‘contemporaneous and transient’ general causation
expert testimony, along with specific evidence of exposure is all that is
required.” 21 As Plaintiff makes no argument that she has admissible specific
causation evidence, the question before the Court is whether expert evidence
of specific causation is required.
The Fifth Circuit uses “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 specific-causation evidence.” 22 Because the BP

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)).
19 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
20 See Doc. 66-1 at 5.
21 Doc. 74 at 2.
22 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007).
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parties do not contest Plaintiff’s general causation report from Dr. Jerald Cook,
M.D, the Court will only address specific causation.
“When the conclusion regarding medical causation is not one within
common knowledge, expert medical testimony is required to prove
causation.” 23 However, there is an exception when “the complained-of injuries
[are] ‘within the layperson’s common knowledge,’ the general causation
evidence . . . is sufficient to meet [the plaintiff’s] burden of proof with regard to
summary judgment.” 24 Courts applying Louisiana law have found that expert
testimony is not required to establish causation for common issues such as
“dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety,
and depression” because they are within the common knowledge of a
layperson. 25
The BP Parties argue that this case is controlled by maritime law, and
as such, that this exception is inapplicable because these cases were decided
under Louisiana law. 26 It is true that toxic tort cases, expert testimony is
usually required; as one court observed, it has “never held that a [maritime]
plaintiff can survive summary judgment in a toxic tort case without admissible
expert testimony on the issue of causation.” 27 However, the Fifth Circuit has
found that “expert testimony is not required in cases where the nature of the
injury can be understood by lay factfinders based on ordinary knowledge and

Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 524 (E.D. La. 2002) (finding “that the
causes of impotency, migraine headaches and PTSD are not matters within the common
knowledge of a layperson.”).
24 Guidry v. Dow Chemical Co., No. 19-12233, 2021 WL 4460505, at *2 (E.D. La. Sept. 29,
2021).
25 Ainsworth v. Am. Home Assur. Co., 239 So. 3d 359, 365–66 (La. Ct. App. 4 Cir. 2018); see
also Guidry, 2021 WL 4460505, at *2 (finding that irritant symptoms after being exposed to
a chemical are transient symptoms within the common knowledge of lay people).
26 Doc. 77 at 4.
27 Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 206 (5th Cir. 2019) (citing Wills v.
Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Sotomayor, J.)).
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experience.” 28 Other sections of this Court have applied this “so called ‘relaxed
rule’ of evidence” in maritime cases “when the nature of the alleged injury is
within the common knowledge of lay persons.” 29
The Court must now determine which medical conditions are within the
common knowledge of lay people and do not require expert evidence of specific
causation. Plaintiff relies upon Guidry v. Dow Chemical Co., where the
plaintiff complained of “irritant symptoms such as nausea, eyes, nose, or throat
irritation, coughing, choking or gagging, or nausea, or headaches, dizziness,
trouble breathing, or other respiratory issues.” 30 In denying summary
judgment, the court held that “[e]xpert testimony on general causation
combined with specific evidence of the nature of the [plaintiff’s] exposure is
sufficient to permit the jury to conclude that the [ethyl acrylate] release was
more likely than not the cause of the . . . transient symptoms.” 31 Contrastingly,
this Court in Ciblic v. BP Exploration & Production, held that the causal link
between the plaintiff’s exposure and a later diagnosis of lung cancer was not
within the layperson's common knowledge. 32 The ultimate question is whether
Plaintiff’s medical conditions are akin to a diagnosis of lung cancer in Ciblic or
similar to the irritant symptoms in Guidry. 33
Id. at 207.
Stephens, 2022 WL 1081193, at *3; Turner v. BP Expl. & Prod. Inc., No. 17-4210, Doc. 61;
Wallace v. BP Expl. & Prod. Inc., No. 13-1039, Doc. 47.
30 Guidry, 2021 WL 4460505, at *1–2.
31 Id. at *3 (alterations in original).
32 Ciblic v. BP Exploration & Production, No. CV 15-995, 2017 WL 1064954, at *2 (E.D. La.
Mar. 21, 2017).
33 Troxler v. BP Exploration & Production, Inc. No. 17-4207, 2022 WL 1081193, at * (E.D. La.
April 11, 2022) (holding that “the causal connection between exposure to oil and dispersants
and [chemical pneumonitis, gastrointestinal problems, breathing difficulties, and memory
loss] is not within the common knowledge of a lay person.”); Stephens, 2022 WL 1081193, at
*4 (holding that symptoms like “nasal congestion, nasal discharge, sore throat, nausea, eye
burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression,
and anxiety” were within the common knowledge of laypeople and do not require an expert
on specific causation, while symptoms like “sinusitis, upper respiratory infection, abdominal
cramps and pain, mood disorder, and insomnia” were not within the knowledge of laypeople
28
29

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Plaintiff alleges that the oil and dispersants caused her to develop a sore
throat, hypertension, chest pain, headaches, and joint pain. 34 The Court finds
that hypertension, chest pain, and joint pain are more the complex diseases
presented in Ciblic than the irritant symptoms presented in Guidry. 35 These
injuries are neither within the common knowledge of lay people nor classified
as transient or temporary. Without expert evidence on specific causation,
Plaintiff cannot meet her burden of proof as to these injuries. The remaining
medical conditions, headache and sore throat, are likely within the knowledge
of lay people. 36 Therefore, Plaintiff does not require an expert on specific
causation for these particular medical conditions.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants’ Motion
for Summary Judgment (Doc. 66) is GRANTED IN PART. Plaintiff’s claims
are DISMISSED WITH PREJUDICE except for the claims for headaches
and sore throat.

New Orleans, Louisiana this 15th day of March, 2023.

and required expert testimony on specific causation); Turner v. BP Expl. & Prod. Inc., No.
17-4210, Doc. 61 (holding that hypertension and chest pain are not medical conditions within
the common knowledge of a lay person and so expert evidence on specific causation was
required).
34 Doc. 66-3 at 2.
35 Turner, No. 17-4210, Doc. 61 (holding that hypertension and chest pain are not medical
conditions within the common knowledge of a lay person and so expert evidence on specific
causation was required).
36 Stephens, 2022 WL 1081193, at *4 (holding that a sore throat and headaches are within
the common knowledge of lay people and so the plaintiff did not need an expert on specific
causation for these medical conditions); Turner, No. 17-4210, Doc. 61 (holding that throat
irritation and headaches are within the common knowledge of lay people and so the plaintiff
did not need an expert on specific causation for these medical conditions)
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____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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