The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CYNTHIA PAIGE CIVIL ACTION
VERSUS NO. 17-3594-WBV-KWR
BP EXPLORATION & SECTION: D (4)
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 Defendants, Halliburton Energy Services, Inc., Transocean
Holdings, LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc., and have also joined in the Motion.2 The Motion was noticed for
submission on August 23, 2022. Pursuant to Local Rule 7.5, a response was due by
August 15, 2022. As of the date of this Order, no opposition has been filed.3 In
addition, plaintiff, Cynthia Paige, has not moved for an extension of the submission
date or the deadline to file an opposition brief. Hence, the Motion is unopposed.
After careful consideration of the Motion, the record, and the applicable law,
the Motion is GRANTED and Cynthia Paige’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.
1 R. Doc. 52.
2 Id. at p. 1, n.1.
3 The record reflects that six attorneys are currently enrolled as counsel of record for Paige.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from Cynthia Paige’s alleged exposure to toxic chemicals
following the Deepwater Horizon (“DWH”) oil spill that took place on April 20, 2010.4
On January 11, 2013, while presiding over the multidistrict litigation arising out of
the DWH incident, United States District Judge Carl J. Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement (the
“MSA”).5 The MSA includes a Back-End Litigation Option (“BELO”) that permits
certain class members to sue BP for Later-Manifested Physical Conditions
(“LMPC’s”).6 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 RESPOSE ACTIVITIES,
where such exposure occurred on or prior to … April 16, 2012 for
CLEAN-UP WORKERS.7
After opting out of the MSA,8 Cynthia Paige filed a Complaint on April 18, 2017
against BP Explorations & Production Inc., BP America Production Company, Inc.,
BP p.l.c., Transocean Holdings LLC, Transocean Deepwater Inc., Transocean
Offshore Deepwater Drilling Inc., and Halliburton Energy Services, Inc.9 In the
Complaint, Paige alleges that she was exposed to oil and/or oil-dispersing chemicals
4 R. Doc. 1 at ¶ 18.
5 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.).
6 Id.
7 Id.
8 See, R. Doc. 1-1 at p.2.
9 R. Doc. 1.
and/or decontaminants used during the oil spill cleanup “by virtue of Plaintiff’s
environment.”10 Paige also alleges “Medical monitoring, personal injury, or wrongful
death arising from alleged exposure to crude oil or dispersants” based upon
“Continuous exposure beginning on or about 4/20/10, including but not limited to
5655 Old Hwy 61 North – Tunica, MS 38676.”11 Paige alleges that her symptoms
include “Rash, itching, and other injuries as may be shown by further evidence.”12
In the Complaint, Paige also “adopts and incorporates by reference all matters
originally pled” in the Complaint filed in Civ. A. No. 13-2332-CJB-JCW, Krista Ellen
Mejia, et al. v. BP Exploration & Production Inc., et al., wherein Paige and
approximately 43 other plaintiffs alleged that they experienced headaches, nausea,
vomiting, respiratory problems, and eye irritation, among other adverse health
effects, as a result of exposure to crude oil, dispersants, and other harmful chemicals
in the environment resulting from the Deepwater Horizon oil spill.13 Paige also
alleged in the Mejia matter that her 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 she has developed a significantly increased risk of
contracting a serious latent disease.14
10 Id. at ¶ 18.
11 R. Doc. 1-1 at pp. 3 & 5. The Court notes that 5655 Old Hwy 61 North is listed as Paige’s address
on the forms attached to her Complaint. Id. at p. 6.
12 R. Doc. 1-1 at p. 5.
13 R. Doc. 1 at ¶ 1; See, R. Doc. 1 at ¶ 50 in the Mejia matter.
14 R. Doc. 1 at ¶¶ 74-76 in the Mejia matter.
BP filed the instant Motion on August 8, 2022, asserting that it is entitled to
summary judgment under Fed. R. Civ. P. 56 because Paige has provided insufficient
admissible evidence to connect her alleged conditions with exposure to oil or
dispersants. 15 Specifically, BP claims that Paige has alleged various health
complaints due to the DWH oil spill, but she has not produced any expert testimony
in support of those claims.16 BP points out that while her case was part of the MDL,
Paige alleged that she suffered from “Rash, itching, and other injuries as may be
shown by further evidence” as a result of the oil spill response and cleanup.17 BP also
points out that Paige failed to provide an expert report by the July 19, 2022 deadline
set forth in the Court’s Amended Scheduling Order.18
BP argues that the Fifth Circuit, the Eleventh Circuit, and at least eleven
Sections of this Court have issued opinions addressing the obligation of a BELO
plaintiff to prove legal causation.19 According to BP, this requirement derives from
the fundamental principles governing proof of causation in toxic tort cases decided
under general maritime law.20 BP claims that B3 plaintiffs, like Paige, must satisfy
the same legal cause standard as BELO plaintiffs.21 BP further asserts that, because
of the technical nature of the proof, courts have uniformly held that toxic tort
plaintiffs must provide expert testimony to meet their burden of proving causation.22
15 R. Doc. 52 at p. 1.
16 R. Doc. 52-1 at p. 1.
17 Id. at pp. 2-3 (citing R. Doc. 1-1 at p. 5; R. Doc. 52-3).
18 R. Doc. 52-1 at p. 3 (citing R. Doc. 47).
19 R. Doc. 52-1 at p. 4 (citing authority).
20 Id. at pp. 4-5 (citations omitted).
21 Id. at p. 5 (citing R. Doc. 26924 at p. 1 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. Feb. 23, 2021) (Barbier, J.).
22 R. Doc. 52-1 at p. 5 (citing authority).
BP contends that, since the nature of the proof is technical, courts have repeatedly
dismissed claims of plaintiffs who alleged injuries from exposure to the DWH spill
but failed to provide expert support for their claims.23 BP argues that, for these
reasons, Paige’s claims lack the expert support required to carry her burden of proof
on causation, which is a foundational element of her claim.24 As such, BP asks this
Court to grant its Motion and dismiss Paige’s claims with prejudice.25
As previously mentioned, Paige did not file a response to BP’s Motion for
Summary Judgment.26
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.27 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.28 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.”29 While all reasonable
23 Id. at pp. 5-6 (citing Williams v. BP Expl. & Prod., Civ. A. No. 18-9753, 2019 WL 6615504, at *11
(E.D. La. Dec. 5, 2019) (Morgan, J.)).
24 R. Doc. 52-1 at p. 6.
25 Id.
26 The Court notes that Paige also failed to comply with the Amended Scheduling Order by failing to
file a witness list by the August 18, 2022 deadline, or request any extension to do so. See, R. Doc. 47
at p. 2.
27 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).
28 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).
29 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted).
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.”30 The mere argued existence of a factual
dispute does not defeat an otherwise properly supported motion.31 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.32
If the dispositive issue is one in 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.”33 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.”34 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.35 The burden then shifts to the non-moving party who must go beyond
30 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks
omitted).
31 Anderson, 477 U.S. at 248, 106 S.Ct. 2510.
32 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)).
33 Int’l Shortstop, Inc., 939 F.2d at 1264-65.
34 Id. at 1265.
35 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
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.’”36
III. ANALYSIS
As BP highlights,37 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.38
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.”39 The Court finds that because Paige failed to identify a causation expert
in this case by the Court’s July 19, 2022 deadline40 and did not move for an extension
of that deadline, or for an extension of her deadline to respond to the instant Motion,
she cannot meet her burden of proof on causation.41 Indeed, the record reveals no
36 Id. (quoting FED. R. CIV. P. 56(e)).
37 R. Doc. 52-1 at p. 2.
38 R. Doc. 26924 at p. 4 in In Re Oil Spill by the Oil Rig “Deepwater Horizon,” Civ. A. No. 10-02179
(E.D. La. Feb. 23, 2021) (Barbier, J.).
39 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) (Feldman, J.)); See, McGill v. BP Expl. & Prod. Inc., Case No. 19-60849,
830 Fed.Appx. 430 (5th Cir. 2020).
40 R. Doc. 47 at p. 1.
41 The Court is aware of recent orders issued by other Sections of this Court which address the
requirement of expert testimony to establish specific causation. See, Stephens v. BP Explor. & Prod.
Inc., Civ. A. No. 17-4294, 2022 WL 1642136 (E.D. La. May 24, 2022) (Barbier, J.); Turner v. BP Expl.
& Prod. Inc., Civ. A. No. 17-4210, 2022 WL 1642142 (E.D. La. May 24, 2022) (Barbier, J.); Wallace on
admissible evidence whatsoever to support general causation. Thus, Paige cannot
meet her burden of proof on causation and 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 Cynthia Paige’s claims against BP
Exploration & Production Inc., BP America Production Company, BP p.l.c.,
Halliburton Energy Services, Inc., Transocean Holdings, LLC, Transocean
Deepwater, Inc., and Transocean Offshore Deepwater Drilling, Inc. are DISMISSED
WITH PREJUDICE.
New Orleans, Louisiana, October 2, 2022.
WENDY B. fen
United States District Judge
behalf of Wallace v. BP Expl. & Prod. Inc., Civ. A. No. 13-1039, 2022 WL 1642166 (E.D. La. May 24,
2022) (Barbier, J.). A reading of these orders does not change this Court’s analysis or conclusion.
Indeed, those cases confirm the Fifth Circuit’s two-step approach in examining the admissibility of
causation evidence in toxic tort cases, specifying that, “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.” Stephens,
Civ. A. No. 17-4294, 2022 WL 1642136 at *2 (quoting Knight v. Kirby Inland Marine Inc., 482 F.3d
347, 351 (Sth Cir. 2007)) Gnternal quotation marks omitted); Turner, Civ. A. No. 17-4210, 2022 WL
1642142 at *2 (quoting Kirby, supra); Wallace, Civ. A. No. 13-1039, 2022 WL 1642166 at *2 (quoting
Kirby, supra). Those orders then address issues regarding specific causation in light of the particular
facts presented in those cases. This Court does not, at this stage, address specific causation since
Paige has failed to produce any evidence whatsoever as to general causation.
42 Doc. 52.