Opinion

Wilson v. BP Exploration & Production, Inc.

Court
District Court, E.D. Louisiana
Filed
Oct 7, 2022
Cited by
0 cases
Authority
More cited than 22.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARK WILSON CIVIL ACTION

VERSUS NO. 17-4278-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., have also joined in the Motion.2 The Motion was noticed for submission

on September 20, 2022. Pursuant to Local Rule 7.5, a response was due by September

12, 2022. As of the date of this Order, no opposition has been filed. In addition,

plaintiff, Mark Wilson, has not moved for an extension of the submission date or the

deadline to file an opposition brief.3 Hence, the Motion is unopposed.

After careful consideration of the Motion, the record, and the applicable law,

the Motion is GRANTED and Mark Wilson’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. 49.

2 Id. at p. 1, n.1.

3 The record reflects that six attorneys are currently enrolled as counsel of record for Wilson.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from Mark Wilson’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 Mark Wilson filed a Complaint on April 29, 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, Wilson alleges that he 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 at ¶ 5; R. Doc. 30 at ¶ 18.

9 R. Doc. 1.

and/or decontaminants used during the oil spill cleanup “by virtue of Plaintiff’s

environment.” 10 Wilson 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 New

Sarpy, LA.”11 According to the documents attached to the Complaint, Wilson alleges

that his injuries include “nausea and other injuries as may be shown by further

evidence.”12

In the Complaint, Wilson also “adopts and incorporates by reference all

matters originally pled” in the Complaint filed in Civ. A. No. 13-2329-CJB-JCW,

Marina Pacheco-Ruz, et al. v. BP Exploration & Production Inc., et al. (E.D. La.),

wherein Wilson and approximately 29 other plaintiffs alleged that they experienced

“headaches, nausea, vomiting, respiratory problems, and eye irritation, among other

adverse health effects associated with exposure to crude oil and dispersants and other

harmful chemicals in the environment resulting from the Oil Spill.”13 The plaintiffs

in the Pacheco-Ruz matter also alleged that their 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 they “have 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.

12 R. Doc. 1-1 at p. 5.

13 R. Doc. 1 at ¶ 1; See, R. Doc. 1 at ¶ 50 in the Pacheco-Ruz matter.

14 R. Doc. 1 at ¶¶ 74-76 in the Pacheco-Ruz matter.

On October 18, 2021, with the Court’s consent,15 Wilson filed a First Amended

Complaint, providing additional information to support his claims and maintain his

allegation that he “has been exposed to crude oil, chemical dispersants, and the

hazardous substances that are contained therein and, as a direct and proximate

cause, has suffered both acute and chronic injury, including but not limited to the

injuries set forth in Exhibit ‘A’.”16 The Court notes that there is no “Exhibit A”

attached to the First Amended Complaint, but that there is an “Exhibit A” attached

to Wilson’s original Complaint.17

BP filed the instant Motion on September 2, 2022, asserting that it is entitled

to summary judgment under Fed. R. Civ. P. 56 because Wilson has provided

insufficient admissible evidence to connect his alleged conditions with exposure to oil

or dispersants.18 Specifically, BP claims that Wilson has alleged various health

complaints due to the DWH oil spill, but he has not produced any expert testimony

in support of those claims.19 BP points out that while his case was part of the MDL,

Wilson alleged that he suffered from “nausea and other injuries as may be shown by

further evidence” as a result of the oil spill response and cleanup.20 BP also points

out that Wilson failed to provide an expert report by the August 22, 2022 deadline set

forth in the Court’s Amended Scheduling Order.21

15 R. Doc. 29.

16 R. Doc. 30 at ¶¶ 3, 21, 32, & 39.

17 See, R. Doc. 1-1.

18 R. Doc. 49 at p. 1.

19 R. Doc. 49-1 at p. 1.

20 Id. at p. 3 (citing R. Doc. 1-1 at p. 5; R. Doc. 49-3).

21 R. Doc. 49-1 at p. 3 (citing R. Doc. 44).

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.22 According to BP, this requirement derives from

the fundamental principles governing proof of causation in toxic tort cases decided

under general maritime law.23 BP claims that B3 plaintiffs, like Wilson, must satisfy

the same legal cause standard as BELO plaintiffs.24 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.25

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.26 BP argues that, for these

reasons, Wilson’s claims lack the expert support required to carry his burden of proof

on causation, which is a foundational element of his claim.27 As such, BP asks this

Court to grant its Motion and dismiss Wilson’s claims with prejudice.28

As previously mentioned, Wilson did not file a response to BP’s Motion for

Summary Judgment.29

22 R. Doc. 49-1 at p. 4 (citing authority).

23 Id. at pp. 4-5 (citations omitted).

24 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.).

25 R. Doc. 49-1 at p. 5 (citing authority).

26 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.)).

27 R. Doc. 49-1 at p. 6.

28 Id.

29 The Court notes that Wilson also failed to comply with the Amended Scheduling Order by failing to

file a witness list by the September 21, 2022 deadline, or request any extension to do so. See, R. Doc.

44 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.30 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.31 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.”32 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.”33 The mere argued existence of a factual

dispute does not defeat an otherwise properly supported motion.34 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.35

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

30 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).

31 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).

32 Delta & Pine Land Co., 530 F.3d at 398-99 (citations omitted).

33 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

34 Anderson, 477 U.S. at 248, 106 S.Ct. 2510.

35 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.”36 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.”37 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.38 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.’”39

III. ANALYSIS

As BP highlights,40 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

36 Int’l Shortstop, Inc., 939 F.2d at 1264-65.

37 Id. at 1265.

38 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

39 Id. (quoting FED. R. CIV. P. 56(e)).

40 R. Doc. 49-1 at p. 2.

claimed injury or illness is exposure to oil or other chemicals used during

the response.41

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.”42 The Court finds that because Wilson failed to identify a causation

expert in this case by the Court’s August 22, 2022 deadline43 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.44 Indeed, the record reveals

no admissible evidence whatsoever to support general causation. Thus, Wilson

cannot meet his burden of proof on causation and BP is entitled to summary judgment

as a matter of law.

41 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.).

42 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).

43 R. Doc. 44 at p. 1.

44 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

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 (5th Cir. 2007)) (internal 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

Wilson has failed to produce any evidence whatsoever as to general causation.

IV. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that BP’s Motion for

Summary Judgment © is GRANTED, and Mark Wilson’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 6, 2022.

tte

United States District Judge

45 R. Doc. 49.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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