The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PHIEU NGO CIVIL ACTION
VERSUS NO. 17-4464-WBV-JVM
BP EXPLORATION & SECTION: D (1)
PRODUCTION, INC., ET AL.
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 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, Phieu Ngo, has not
moved for an extension of the submission date or his 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.
I. FACTUAL BACKGROUND
This case arises from Phieu Ngo’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
1 R. Doc. 40.
“MSA”).2 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”).3 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.4
After opting out of the MSA, Ngo 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.5 Ngo alleges
that after the Deepwater Horizon oil spill, he was injured as a result of exposure to
oil and/or dispersing chemicals and/or decontaminants by virtue of his residential and
work environment, and further asserts that he is a commercial fisherman, shrimper,
and oysterman.6 Ngo also alleges “Medical monitoring, personal injury, or wrongful
death arising from alleged exposure to crude oil or dispersants,” and that he was
continuously exposed in and around his residence in Morgan City, Louisiana “and
2 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.).
3 Id.
4 Id.
5 R. Doc. 1 at ¶¶ 1-8. See, R. Doc. 1-1 at p. 2.
6 R. Doc. 1 at ¶ 1 (adopting allegations in R. Doc. 1 in Yen Do, et al. v. BP Expl. & Prod. Inc., et al., Civ.
A. No. 13-4756-CJB-JCW (E.D. La.) (the “Do” matter) and adopting the allegations in Phieu Ngo’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”). See, R. Doc. 1 at ¶ 8 in
the Do matter; R. Doc. 7621 in the BP Litigation.
Gulf Waters.”7 Ngo alleges that his symptoms include coughing, fever, chills, runny
nose, weakness, chest pain, and headaches.8 Ngo further alleges that he suffered
personal injury damages, including 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
Ngo also “adopts and incorporates by reference all matters originally pled” in
the Complaint filed in Civ. A. No. 13-4756, Yen Do, et al. v. BP Exploration &
Production Inc., et al., wherein Ngo and several other plaintiffs alleged that they have
experienced headaches, nausea, vomiting, respiratory problems, and eye irritation as
a result of exposure to crude oil, dispersants, and other harmful chemicals in the
environment resulting from the Deepwater Horizon oil spill.10 Ngo also alleged in the
Do matter that his exposure to the oil, dispersants, and/or other hazardous chemicals
used for or resulting from the oil spill may lead to serious health problems, diseases,
and medical conditions that may be prevented by timely diagnosis and treatment,
and that he has developed a significantly increased risk of contracting a serious latent
disease.11
BP filed the instant Motion on May 2, 2022, asserting that it is entitled to
summary judgment because Ngo has not produced an expert report or any expert
7 R. Doc. 1-1 at p. 5.
8 Id.
9 R. Doc. 1 at ¶ 21.
10 R. Doc. 1 at ¶ 1; See, R. Doc. 1 at ¶ 35 in the Do matter.
11 R. Doc. 1 at ¶¶ 64-67 in the Do matter.
testimony in support of his health complaints and, thus, cannot prove that his alleged
medical conditions were caused by his exposure to substances related to the
Deepwater Horizon oil spill.12 BP claims 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.13 According to BP, this requirement derives
from the fundamental principles governing proof of causation in toxic tort cases
decided under general maritime law.14 BP claims that B3 plaintiffs like Ngo, 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.15
BP further asserts 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.16 BP claims that courts have repeatedly granted summary
judgment dismissing claims of plaintiffs who alleged injuries from exposure to the
Deepwater Horizon oil spill, but failed to produce expert support for their claims.17
BP argues that, for these reasons, Ngo’s claims lack the expert support required to
carry his burden of proof on causation. As such, BP asserts that the Court should
grant its Motion and dismiss Ngo’s claims with prejudice.
As previously mentioned, Ngo did not file a response to BP’s Motion.18
12 R. Doc. 40; R. Doc. 40-1 at pp. 1 & 3.
13 R. Doc. 40-1 at p. 4 (citing authority).
14 Id. (citations omitted).
15 Id. at pp. 2 & 4.
16 Id. at p. 5 (citing Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir. 1996)).
17 R. Doc. 40-1 at p. 5 (citations omitted).
18 The Court notes that Ngo also failed to comply with the Scheduling Order by failing to file a witness
list by the May 6, 2022 deadline, or request any extension to do so. See, R. Doc. 31 at p. 2.
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.19 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.20 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.”21 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.”22 The mere argued existence of a factual
dispute does not defeat an otherwise property supported motion.23 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.24
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
19 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).
20 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).
21 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted).
22 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
23 Anderson, 477 U.S. at 248, 106 S.Ct. 2510.
24 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)).
entitle it to a directed verdict if the evidence went uncontroverted at trial.”25 The
non-moving 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.”26 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.27 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.’”28
III. ANALYSIS
As BP correctly points out,29 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
25 Int’l Shortstop, Inc., 939 F.2d at 1264-65.
26 Id. at 1265.
27 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
28 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).
29 See, R. Doc. 40-1 at p. 2.
claimed injury or illness is exposure to oil or other chemicals used during
the response.?®°
In a separate matter, this Court recently explained that the Fifth Circuit and at least
nine Sections of this Court have uniformly held that, with regard to BELO plaintiffs,
“lalbsent expert testimony, [a BELO plaintiff] cannot meet his burden of proof on
causation.”*! The Court finds that because Ngo failed to identify a causation expert
in this case by the Court’s April 6, 2022 deadline®? and did not move for an extension
of that deadline, or for an extension of his deadline to respond to the instant Motion,
he cannot meet his burden of proof on causation. Accordingly, BP is 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?? is GRANTED, and Phieu Ngo’s claims against BP Exploration
& Production, Inc., BP America Production Company, and BP p.l.c. are DISMISSED
WITH PREJUDICE.
New Orleans Louisiana, May 23, 2022.
WENDY B. jr
UNITED STATES DISTRICT JUDGE
30 See, R. Doc. 26924 at p. 4in In Re: Oil Spill by the Oul Rig “Deepwater Horizon” in the Gulf of Mexico,
on April 20, 2010, MDL No. 10-2179-CJB-DPC (E.D. La.).
31 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. 19-
13185 (E.D. La. Aug. 4, 2021)); See, McGill v. BP Expl. & Prod. Inc., Case No. 19-60849, 830 Fed.Appx.
430 (5th Cir. 2020).
32 R. Doce. 31.
33 Doc. 40.