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.
AMENDED 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, 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 and Phieu Ngo’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 R. Doc. 40.
2 Id. at p. 1, n.1. See, R. Doc. 40-1 at p. 1, n.1.
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
“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, 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. (collectively,
“Defendants”).6 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
3 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. See, R. Doc. 1-1 at p. 2.
virtue of his residential and work environment, and further asserts that he is a
commercial fisherman, shrimper, and oysterman.7 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 Gulf Waters.”8 Ngo alleges that his symptoms
include coughing, fever, chills, runny nose, weakness, chest pain, and headaches.9
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.10
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.11 Ngo also alleged in the
Do matter that his exposure to the oil, dispersants, and/or other hazardous chemicals
7 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.
8 R. Doc. 1-1 at p. 5.
9 Id.
10 R. Doc. 1 at ¶ 21.
11 R. Doc. 1 at ¶ 1; See, R. Doc. 1 at ¶ 35 in the Do matter.
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.12
Defendants filed the instant Motion on May 2, 2022, asserting that they are
entitled to summary judgment because Ngo has not produced an expert report or any
expert 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.13 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.14 According to Defendants,
this requirement derives from the fundamental principles governing proof of
causation in toxic tort cases decided under general maritime law.15 Defendants claim
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.16 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.17 Defendants claim that
courts have repeatedly granted summary judgment dismissing claims of plaintiffs
12 R. Doc. 1 at ¶¶ 64-67 in the Do matter.
13 R. Doc. 40; R. Doc. 40-1 at pp. 1 & 3.
14 R. Doc. 40-1 at p. 4 (citing authority).
15 Id. (citations omitted).
16 Id. at pp. 2 & 4.
17 Id. at p. 5 (citing Allen v. Pennsylvania Eng’g Corp., 102 F.3d 194 (5th Cir. 1996)).
who alleged injuries from exposure to the Deepwater Horizon oil spill, but failed to
produce expert support for their claims.18 Defendants argue that, for these reasons,
Ngo’s claims lack the expert support required to carry his burden of proof on
causation. As such, Defendants assert that the Court should grant their Motion and
dismiss Ngo’s claims with prejudice.
As previously mentioned, Ngo did not file a response to the Motion.19
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.20 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.21 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.”22 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.”23 The mere argued existence of a factual
18 R. Doc. 40-1 at p. 5 (citations omitted).
19 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.
20 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).
21 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).
22 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted).
23 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
dispute does not defeat an otherwise property supported motion.24 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.25
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.”26 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.”27 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.28 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.’”29
24 Anderson, 477 U.S. at 248, 106 S.Ct. 2510.
25 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)).
26 Int’l Shortstop, Inc., 939 F.2d at 1264-65.
27 Id. at 1265.
28 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
29 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).
III. ANALYSIS
As Defendants correctly point out,30 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.31
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,
“[a]bsent expert testimony, [a BELO plaintiff] cannot meet his burden of proof on
causation.”32 The Court finds that because Ngo failed to identify a causation expert
in this case by the Court’s April 6, 2022 deadline33 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, 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 Judgment34 is GRANTED, and Phieu Ngo’s claims against BP Exploration
30 See, R. Doc. 40-1 at p. 2.
31 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.).
32 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).
33 R. Doc. 31.
34 R. Doc. 40.
& 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, May 31, 2022.
( load Voth
WENDY B. VITTER
UNITED STATES DISTRICT JUDGE