The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE ROY BROWN, JR. CIVIL ACTION
VERSUS No. 18-9927
BP EXPLORATION SECTION I
& PRODUCTION INC., ET AL.
ORDER & REASONS
Before the Court is defendants BP Exploration & Production Inc. and BP
America Production Company’s (together, “BP”) motion1 for summary judgment.
Plaintiff Roy Brown, Jr.’s (“Brown”) response in opposition to BP’s motion for
summary judgment was due on July 2, 2019, but to date, no opposition has been filed.2
Accordingly, the Court considers the motion unopposed. For the following reasons,
the motion is granted.
I.
On January 11, 2013, U.S. District Judge Carl J. Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement (“MSA”),
which includes a Back-End Litigation Option (“BELO”) permitting certain class
members who follow procedures outlined in the MSA to sue BP for later-manifested
physical conditions.3
1 R. Doc. No. 27.
2 The Local Civil Rules of this district require parties to file memoranda in opposition
to motions no later than eight (8) days before the noticed submission date. LR 7.5.
The submission date with respect to the instant motion is July 10, 2019. Accordingly,
any opposition to the motion needed to be filed no later than July 2, 2019.
3 R. Doc. No. 27-6, at 1–2 ¶¶ 1 & 3.
Individuals who worked as clean-up workers in response to the Deepwater
Horizon oil spill are members of the class covered by the MSA.4 A later-manifested
physical condition, pursuant to the MSA, is 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
This case arises from Brown’s alleged exposure to oil and gas dispersants while
he worked as a clean-up worker in response to the Deepwater Horizon oil spill.6
Brown was diagnosed in July 2014 with chronic damage to his conjunctiva,
chronic rhinosinusitis, reactive airways dysfunction syndrome, and chronic
eczematous reaction; and in October 2015 with neurocognitive disorder with
behavioral changes and specific learning disorder with impairment in reading.7
BP does not dispute that Brown was a clean-up worker after the oil spill and
that he is a member of the class covered by the MSA.8 BP also does not dispute that
Brown’s alleged conditions, diagnosed after April 16, 2012, fit within the MSA’s
definition of a later-manifested physical condition.9
4 R. Doc. No. 27-6, at 1 ¶ 2.
5 R. Doc. No. 27-1, at 4–5.
6 R. Doc. No. 27-6, at 2 ¶¶ 5 & 7.
7 R. Doc. No. 27-6, at 2 ¶ 6; R. Doc. No. 1, at 3 ¶ 12.
8 See R. Doc. No. 27-6, at 2 ¶ 5; R. Doc. No. 1, at 3 ¶ 10.
9 R. Doc. No. 27-6, at 2 ¶ 8.
Defendants move for summary judgment, however, arguing that Brown cannot
prove legal causation.10 Specifically, BP argues that Brown must prove that his
alleged conditions were legally caused by his exposure to substances related to the
Deepwater Horizon oil spill and that he will not be able to meet his burden of proof
in a bench trial before this Court.11
II.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied
by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
10 R. Doc. No. 27-1, at 2.
11 R. Doc. No. 27-1, at 5–6.
genuine issue of material fact exists when the “evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
“[A] district court has somewhat greater discretion to consider what weight it
will accord the evidence in a bench trial than in a jury trial.” Matter of Placid Oil Co.,
932 F.2d 394, 397 (5th Cir. 1991). “[W]here ‘the evidentiary facts are not disputed, a
court in a nonjury case may grant summary judgment if trial would not enhance its
ability to draw inferences and conclusions.’” Id. (quoting Nunez v. Superior Oil Co.,
572 F.2d 1119, 1124 (5th Cir. 1978)); see also Manson Gulf, L.L.C. v. Modern Am.
Recycling Serv., Inc., 878 F.3d 130, 134 (5th Cir. 2017).
III.
Plaintiffs in BELO lawsuits, such as this case, do not need to prove BP’s fault,
but they do have to prove causation.12 See Piacun v. BP Expl. & Prod., Inc., No. 15-
2963, 2016 WL 7187946, at *7 (E.D. La. Dec. 12, 2016) (Morgan, J.) (“This Court finds
the [MSA] unambiguously requires that a BELO claimant demonstrate that exposure
to oil and/or other substances legally caused his or her physical condition in order to
receive compensation for a [later-manifested physical condition].”).
12 R. Doc. No. 27-2, at 16–17.
“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 in a toxic tort case.” Seaman v. Seacor
Marine, L.L.C., 326 F. App’x 721, 722 (5th Cir. 2009) (per curiam) (quoting Allen v.
Penn. Eng’g Corp., 102 F.3d 194, 199 (5th Cir. 1996)). “[E]xpert testimony is thus
required to establish causation.” Id.
To date, Brown has not indicated that he has retained an expert who will
testify on his behalf at trial, and he has not disclosed to BP any expert reports in
compliance with this Court’s June 12, 2019 deadline.13 The only evidence before the
Court with respect to Brown’s medical condition and that relates to causation is a
medical examination report performed by Dr. Dung Michael Tran at the East
Jefferson Parish Family practice (“EJFP”) health clinic on July 2, 2014.14
13 See R. Doc. No. 27-1, at 2. Even if Brown had submitted an expert report, an expert
report alone is not competent summary judgment evidence:
“While it is true that Rule 26 [of the Federal Rules of Civil
Procedure] does not provide an express requirement that a
report be sworn, it does not alter Rule 56’s requirement
that evidence proffered in opposition to the motion for
summary judgment must be sworn or declared under
penalty of perjury, or the proponent must otherwise show
that a statement could be reduced to admissible evidence
at trial.”
Smith v. Palafox, 728 F. App’x 270, 275 (5th Cir. 2018) (holding that an unsworn
expert report was not competent summary judgment evidence).
14 See R. Doc. No. 27-2. The Court notes that Dr. Tran was not Brown’s treating
physician, and, as stated in his report, Dr. Tran did not have a doctor-patient
relationship with Brown. Id. at 10. The record also includes a mental health
evaluation performed by neuropsychologist Larry Pollock, Ph.D. on October 28, 2015,
Essentially for reasons assigned by BP in its unopposed motion for summary
judgment, the Court finds that Dr. Tran’s report is not competent summary judgment
evidence. Brown has failed to present a genuine issue of material fact or present any
evidence that would support the fact that his injuries were caused by his alleged
exposure to oil and dispersants while he worked in response to the spill.
IV.
For the foregoing reasons,
IT IS ORDERED that the motion for summary judgment is GRANTED and
that all claims asserted by Brown against BP are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, July 9, 2019.
AnA_
UNITED STATES DISTRICT JUDGE
but this report contains no information regarding causation for Brown’s mental
health condition. See R. Doc. No. 27-3.