Plummer v. BP Exploration & Production, Inc. et al
Filing
47
ORDER AND REASONS: IT IS HEREBY ORDERED that BP's 42 Motion for Summary Judgment is GRANTED, and Edna Plummer's claims against BP Exploration & Production, Inc., BP America Production Company, BP p.l.c., Halliburton Energy Services, Inc., Transocean Offshore Deepwater Drilling, Inc., Transocean Holdings, LLC, and Transocean Deepwater, Inc. are DISMISSED WITH PREJUDICE. Signed by Judge Wendy B Vitter on 6/6/2022. (cwa)
Case 2:17-cv-04483-WBV-MBN Document 47 Filed 06/07/22 Page 1 of 9
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EDNA PLUMMER
CIVIL ACTION
VERSUS
NO. 17-4483-WBV-MBN
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION: D (5)
ORDER AND REASONS
Before the Court is BP’s Motion for Summary Judgment, filed by defendants,
BP Exploration & Production, Inc., BP America Production Company, and BP p.l.c.
(collectively, “BP”). 1 Defendants, Halliburton Energy Services, Inc., Transocean
Offshore Deepwater Drilling, Inc., Transocean Holdings, LLC, and Transocean
Deepwater, Inc., have also joined in the Motion. 2 The Motion was noticed for
submission on May 17, 2022. Pursuant to Local Rule 7.5, any response was due by
May 9, 2022. As of the date of this Order, no opposition has been filed. Additionally,
Plaintiff, Edna Plummer, has not moved for an extension of the submission date or
moved for an extension of her deadline to file an opposition brief. Thus, the Motion is
unopposed.
After careful review of the Motion, the record, and the applicable law, the
Motion is GRANTED and Edna Plummer’s claims against BP Exploration &
Production, Inc., BP America Production Company, and BP p.l.c., Halliburton Energy
Services, Inc., Transocean Offshore Deepwater Drilling, Inc., Transocean Holdings,
LLC, and Transocean Deepwater, Inc. are DISMISSED WITH PREJUDICE.
1
2
R. Doc. 42.
Id. at p. 1, n.1.
Case 2:17-cv-04483-WBV-MBN Document 47 Filed 06/07/22 Page 2 of 9
I.
FACTUAL BACKGROUND
This case arises from Plaintiff Edna Plummer’s alleged exposure to harmful
chemicals following the Deepwater Horizon oil spill that occurred on April 20, 2010.
On January 11, 2013, United States District Judge Carl J. Barbier, who presided over
the multidistrict litigation arising out of the Deepwater Horizon incident, approved
the Deepwater Horizon Medical Benefits Class Action Settlement Agreement (the
“MSA”). 3 The MSA includes a Back-End Litigation Option (“BELO”) that permits
certain class members, such as clean-up workers who follow procedures outlined in
the MSA, to sue BP for Later-Manifested Physical Conditions (“LMPC’s”). 4 The MSA
defines a LMPC as a:
physical condition that is first diagnosed in a MEDICAL BENEFITS
SETTLEMENT CLASS MEMBER after April 16, 2012, and which is
claimed to have resulted from ... exposure to oil, other hydrocarbons, or
other substances released from the MC252 WELL and/or the Deepwater
Horizon and its appurtenances, and/or exposure to dispersants and/or
decontaminants used in connection with the RESPONSE ACTIVITIES,
where such exposure occurred on or prior to … April 16, 2012 for
CLEAN-UP WORKERS. 5
After opting out of the MSA, Plummer filed an individual Complaint on May
1, 2017 against BP, Transocean Holdings LLC, Transocean Deepwater Inc.,
Transocean Offshore Deepwater Drilling Inc., and Halliburton Energy Services, Inc.
(collectively, “Defendants”). 6 Plummer alleges that after the Deepwater Horizon oil
spill, she was injured as a result of exposure to oil and/or dispersing chemicals and/or
See, Brown v. BP Expl. & Prod. Inc., Civ. A. No. 18-9927, 2019 WL 2995869, at *1 (E.D. La. July 9,
2019) (citation omitted) (Africk, J.).
4 Id.
5 Id.
6 R. Doc. 1 at ¶¶ 1-8.
3
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decontaminants by virtue of her environment. 7 Plummer alleges that her symptoms
include headaches, skin irritation (face), difficulty breathing, burning and watery
eyes, coughing, nausea, and abdominal pain as a result of continuous exposure in and
around her residence at 3305 Spruce Street, Pascagoula, Mississippi beginning in
April 2010. 8 Plummer further alleges that she suffered personal injury damages,
including economic, income, property, and compensatory damages, and past and
future medical expenses and pain and suffering, as a result of the defendants’
negligence, strict liability, gross negligence, willful and wanton conduct, and
violations of applicable safety, construction, or operation regulations and/or statutes. 9
On October 18, 2021, with leave of Court, Plaintiff filed an Amended
Complaint. 10 In her Amended Complaint, Plaintiff asserts that “Although Plaintiff
opted out of the Class Settlement, or was excluded as a class member, the statements
and declarations submitted by BP to support its motion to approve the settlement
constitute judicial admissions or statements binding on the BP Defendants for
purposes of this case.” 11 Plaintiff then refers to a Specified Physical Conditions
Matrix that “accounts for medical conditions that reasonably could arise from
exposure to oil, other hydrocarbons, or other substances released from the MC252
well and/or Deepwater Horizon and its appurtenances, as well as exposure to
R. Doc. 1 at ¶ 1 (adopting allegations in Edna Plummer’s Direct Filing Short Form in In Re: Oil Spill
by the Oil Rig “Deepwater Horizon” SHORT-FORM JOINDERS, Civ. A. No. 10-8888-CJB-JCW (E.D.
La.) (the “BP Litigation”) as well as adopting and incorporating all matters originally pled in the B3
First Am. Master Complaint, (ECF 1805-1).
8 Exhibit A of R. Doc. 1.
9 Id. and R. Doc. 1 at ¶ 21.
10 R. Doc. 32.
11 Id.
7
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dispersants or decontaminants used during the Response Activities.” 12 Plaintiff
further points to a Declaration of Dr. Jessica Herzstein apparently introduced in the
previous litigation which stated that medical literature supported the inclusion of the
conditions listed on the Matrix. 13
Defendants filed the instant Motion on May 2, 2022, asserting that they are
entitled to summary judgment because Plummer has not produced an expert report
or any expert testimony in support of her complaints and, thus, cannot prove that her
alleged medical conditions were caused by her exposure to substances related to the
Deepwater Horizon oil spill. 14 Defendants claim that the Fifth Circuit and at least
eleven Sections of this Court have issued numerous opinions addressing the
obligation of a BELO plaintiff to prove legal causation. 15 According to Defendants,
this requirement derives from the fundamental principles governing proof of
causation in toxic tort cases decided under general maritime law. 16 Defendants claim
that B3 plaintiffs like Plummer, who were originally part of the multidistrict
litigation stemming from the Deepwater Horizon oil spill, must satisfy the same legal
cause standard as BELO plaintiffs. 17 Defendants further assert that due to the
technical nature of the proof, courts have uniformly concluded that toxic tort plaintiffs
need expert testimony to meet their burden of proving causation. 18 Defendants claim
that courts have repeatedly granted summary judgment dismissing claims of
Id., quoting MDL. Rec. Doc. 6267-1 at 15.
R. Doc. 32.
14 R. Doc. 42.
15 R. Doc. 42-1 at p. 4 (citing authority).
16 Id. (citations omitted).
17 Id. at pp. 2 & 4.
18 Id. at p. 5 (citing Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir. 1996)).
12
13
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plaintiffs who alleged injuries from exposure to the Deepwater Horizon oil spill, but
failed to produce expert support for their claims. 19 Defendants argue that, for these
reasons, Plummer’s claims lack the expert support required to carry her burden of
proof on causation. As such, Defendants assert that the Court should grant their
Motion and dismiss Plummer’s claims with prejudice.
Plummer did not file a response to the Motion. 20
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 instructs that summary judgment is
appropriate where there is no genuine disputed issue as to any material fact, and the
moving party is entitled to judgment as a matter of law. 21 No dispute of material fact
exists if the record, taken as a whole, could not lead a rational trier of fact to find for
the non-moving party. 22 When assessing whether a dispute regarding any material
fact exists, the Court considers “all of the evidence in the record but refrain[s] from
making credibility determinations or weighing the evidence.” 23 While all reasonable
inferences must be drawn in favor of the non-moving party, the non-moving party
cannot defeat summary judgment with conclusory allegations, unsubstantiated
assertions or “only a scintilla of evidence.” 24 The mere argued existence of a factual
R. Doc. 42-1 at p. 5 (citations omitted).
The Court notes that Plummer also failed to comply with the Scheduling Order by failing to file a
witness list by the May 9, 2022 deadline, or requesting any extension to do so. See, R. Doc. 33 at p. 2.
21 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
22 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (citing
Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
23 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted).
24 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
19
20
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dispute does not defeat an otherwise property supported motion. 25 The non-moving
party must do more than simply deny the allegations raised by the moving party, and
must tender depositions, affidavits, and other competent evidence to buttress his
claim. 26
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.” 27 The nonmoving party can then defeat summary judgment by either submitting 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.” 28 If, however,
the non-moving party will bear the burden of proof at trial on the dispositive issue,
the moving party may satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element of the non-moving
party’s claim. 29 The burden then shifts to the non-moving party who must go beyond
the pleadings and, “by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” 30
Anderson, 477 U.S. at 248, 106 S.Ct. 2510.
See Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646, 649 (5th Cir. 1992) (citing Int’l Shortstop,
Inc. v. Rally’s, 939 F.2d 1257, 1263 (5th Cir. 1991); Fed. R. Civ. P. 56(e)).
27 Int’l Shortstop, Inc., 939 F.2d at 1264-65.
28 Id. at 1265.
29 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
30 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).
25
26
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III.
ANALYSIS
As Defendants correctly point out, 31 Judge Barbier previously described the
BELO and B3 cases in similar terms, explaining that:
BELO cases and the B3 cases are similar in several important respects.
Both allege personal injuries or wrongful death due to exposure to oil or
other chemicals used during the oil spill response. Furthermore, both
BELO plaintiffs and 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. 32
In a separate matter, this Court recently explained that the Fifth Circuit and at least
numerous other Sections of this Court have uniformly held that, with regard to BELO
plaintiffs, “[a]bsent expert testimony, [a BELO plaintiff] cannot meet his burden of
proof on causation.” 33 “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.” 34 “Courts use ‘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.’” 35 “General causation is whether a substance
See R. Doc. 40-1 at p. 2.
See R. Doc. 26924 at p. 4 in In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico,
on April 20, 2010, MDL No. 10-2179-CJB-DPC (E.D. La.).
33 Dixon v. BP Expl. & Prod., Inc., Civ. A. No. 20-3272-WBV-JVM, 2022 WL 124026, at *3 (E.D. La.
Jan. 13, 2022) (Vitter, J.) (quoting R. Doc. 35 in Bucano v. BP Expl. & Prod. Inc., et al., Civ. A. No. 1913185 (E.D. La. Aug. 4, 2021)); See, McGill v. BP Expl. & Prod. Inc., Case No. 19-60849, 830 Fed.Appx.
430 (5th Cir. 2020). See also, footnotes 7 and 11 in Defendants’ Motion, R. Doc. 42-2.
34 Cibilic v. BP Exploration & Production, Civ. A. No. 15-995, 2017 WL 1064954 (E.D. La. March 21,
2017)(quoting Seaman v. Seacor Marine LLC, 564 F. Supp. 2d 598, 600 (E.D. La. 2008), aff'd sub
nom. Seaman v. Seacor Marine L.L.C., 326 Fed.Appx. 721 (5th Cir. 2009).
35 Seaman v. Seacor Marine, LLC, 326 F. App'x 721, 722 (5th Cir. 2009) (quoting Knight v. Kirby
Inland Marine, Inc., 482 F.3d 347, 351 (5th Cir. 2007) (emphases added in Seaman)).
31
32
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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.” 36
Plaintiff has not disclosed the name of any expert from which she intends to elicit an
opinion on causation, nor has she provided any expert reports. While Plaintiff has
failed to oppose this motion or put forth any evidence that she may have to prove
causation, Plaintiff’s Amended Complaint appears to seek judicial admission of a
Declaration by Dr. Jessica Herzstein which stated that “medical literature supports
the inclusion of the conditions listed on the [Specified Physical Conditions] Matrix”
and then alleges that the Matrix “accounts for medical conditions that reasonably
could arise from exposure to oil, other hydrodocarbons, or other substances released
from the MC252 Well and/or Deepwater Horizon and its appurtenances, as well as
exposure to dispersants or decontaminants used during the Response Activities.” 37
While all reasonable inferences must be drawn in favor of the non-moving party, the
non-moving party cannot defeat summary judgment with conclusory allegations,
unsubstantiated assertions or “only a scintilla of evidence.” 38 Such is the case here.
Drawing all reasonable inferences in favor of Plaintiff, the Court finds Plaintiff has
failed to meet her burden to prove causation. Plaintiff, in her Amended Complaint,
has alleged that certain conditions could arise from exposure to contaminants, but
the Complaint and Amended Complaint are absolutely silent regarding any causation
of Plaintiff’s alleged injuries. As explained by another section of this Court, “With
Id. (quoting Knight, 482 F.3d at 351).
R. Doc. 32.
38 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted) (quoting Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks omitted).
36
37
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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 the plaintiffs’ burden in a toxic tort case.’”39 Thus,
again, while drawing all reasonable inference in favor of Plaintiff, Plaintiff has
still failed to provide even a scintilla of evidence to prove specific-causation. The
Court finds that because Plummer failed to identify a causation expert in this case
by the Court’s April 7, 2022 deadline and did not move for an extension of that
deadline, or for an extension of her deadline to respond to the instant Motion, and
has failed to provide evidence to defeat summary judgment, she cannot meet her
burden of proof on causation for her alleged injuries. Accordingly, Defendants are
entitled to summary judgment as a matter of law.
IV.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that BP’s Motion for
Summary Judgment 40 is GRANTED, and Edna Plummer’s claims against BP
Exploration & Production, Inc., BP America Production Company, BP p.l.c.,
Halliburton Energy Services, Inc., Transocean Offshore Deepwater Drilling, Inc.,
Transocean Holdings, LLC, and Transocean Deepwater, Inc. are DISMISSED WITH
PREJUDICE.
New Orleans Louisiana, June 6, 2022.
______________________________
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE
Murphy v. BP Exploration & Production, Inc., Civ. A. No. 13-1031, 2022 WL 1460093 (E.D. La. May
9, 2022).
40 R. Doc. 42.
39
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