Kalinowski v. BP Exploration & Production, Inc. et al
Filing
69
ORDER AND REASONS: granting 67 Motion for Summary Judgment, as stated herein. Signed by Judge Jane Triche Milazzo on 05/22/2023. (am)
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 1 of 6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN KALINOWSKI
CIVIL ACTION
VERSUS
NO. 17-4387
BP EXPLORATION & PRODUCTION,
INC. ET AL.
SECTION: H
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Doc. 67) filed by
Defendants BP Exploration & Production, Inc., BP America Production
Company, BP p.l.c., Halliburton Energy Services, Inc., Transocean Deepwater
Inc., Transocean Offshore Deepwater Drilling, Inc., and Transocean Holdings,
LLC. For the following reasons, this Motion is GRANTED.
1
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 2 of 6
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
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
reassigned to Section H.
Plaintiff Kevin Kalinowski claims a myriad of medical conditions
resulting from continuous toxic exposure suffered after the Deepwater Horizon
oil spill. Specifically, he claims to suffer from “ear aches, headaches, vomiting,
blurry vision, and breathing problems.” 5 Plaintiff asserts claims for general
maritime negligence, negligence per se, and gross negligence with respect to
the spill and its cleanup. 6
Now before the Court is Defendants’ Second Motion for Summary
Judgment. In April 2022, this Court granted summary judgment dismissing
all of Plaintiff’s claims based on his failure to produce an expert report before
the original December 21, 2021 deadline. 7 However, “in the spirit of
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.
3 Id. at 2 n.3.
4 Id. at 7–8.
5 Doc. 1-1.
6 See Doc. 30.
7 Doc. 53.
1
2
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 3 of 6
cooperation, all parties filed a consent motion to vacate the ruling to allow
Kalinowski more time to provide an expert report.” 8 Despite this extension,
Plaintiff still has not provided any expert support for his claims. Accordingly,
Defendants again argue that Plaintiff has failed to produce sufficient evidence
to prove that exposure to oil or dispersants caused his alleged injuries. To date,
Plaintiff has filed no opposition to Defendants’ Motion.
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.” 9 A genuine issue of
fact exists only “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 10
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. 11 “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.” 12 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.” 13 “In response to a
properly supported motion for summary judgment, the non-movant must
Doc. 67.
Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).
10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
11 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).
12 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
13 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
8
9
3
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 4 of 6
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.” 14 “We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts.” 15 Additionally, “[t]he mere argued existence of a factual
dispute will not defeat an otherwise properly supported motion.” 16
LAW AND ANALYSIS
Defendants move for summary judgment on the ground that Plaintiff
cannot prove that exposure to oil or dispersants was the legal cause of his
alleged injuries. Defendants argue that Plaintiff cannot do so because he has
produced no expert testimony to support his claims, and in a toxic tort case
such as this, expert testimony as to causation is required.
Having filed no opposition, Plaintiff provides no response to this
argument. However, “[a] motion for summary judgment cannot be granted
simply because there is no opposition.” 17 “The movant has the burden of
establishing the absence of a genuine issue of material fact and, unless he has
done so, the court may not grant the motion, regardless of whether any
response was filed.” 18
Plaintiff has the burden of proving causation. “B3 plaintiffs must prove
that the legal cause of the claimed injury or illness is exposure to oil or other
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
15 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)).
16 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
17 Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir. 2014) (quoting Hibernia
Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985)).
18 Hibernia Nat. Bank, 776 F.2d at 1279.
14
4
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 5 of 6
chemicals used during the response.” 19 “Under the general maritime law, a
party’s negligence is actionable only if it is a ‘legal cause’ of the plaintiff’s
injuries. [L]egal cause is something more than ‘but for’ causation, and the
negligence must be a ‘substantial factor’ in the injury.” 20 In general, “when the
conclusion regarding medical causation is not one within common knowledge,
expert medical testimony is required to prove causation.” 21 Here, the causal
connection between exposure to oil or dispersants and Plaintiff’s injuries is not
within the common knowledge of a layperson. “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.” 22
Plaintiff’s new deadline for expert disclosures and reports was March 8,
2023. 23 Plaintiff neither met this deadline nor moved for its extension.
Additionally, to date, Plaintiff has failed to oppose BP’s motion or put forth any
evidence of causation. Therefore, Plaintiff cannot prove a necessary element of
his claims against Defendants, and his claims must be dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment
(Doc. 67) is GRANTED, and this case is DISMISSED WITH PREJUDICE.
In Re: Oil Spill, No. 10-md-02179, R. Doc. 26924 at 4.
Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992) (internal
quotations omitted).
21 Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 524 (E.D. La. 2002); see Pfiffner v.
Correa, 643 So. 2d 1228, 1234 (La. 1994).
22 Seaman v. Seacor Marine LLC, 564 F. Supp. 2d 598, 600 (E.D. La. 2008), aff’d sub nom.
Seam v. Seacor Marine L.L.C., 326 Fed. Appx. 721 (5th Cir. 2009); see also Banegas v. BP
Expl. & Prod., Inc., No. 17-7429, 2019 WL 424683, at *2 (E.D. La. Feb. 4, 2019); Williams v.
BP Expl. & Prod., Inc., No. 18-9753, 2019 WL 6615504, at *11 (E.D. La. Dec. 5, 2019).
23 See Doc. 26.
19
20
5
Case 2:17-cv-04387-JTM-JVM Document 69 Filed 05/22/23 Page 6 of 6
New Orleans, Louisiana this 22nd day of May, 2023
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?