Brown v. BP Exploration & Production, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CHER GRIFFIN BROWN CIVIL ACTION

VERSUS NO. 17-3516

BP EXPLORATION & PRODUCTION, SECTION: “H”

INC. ET AL.

ORDER AND REASONS

Before the Court is a Motion for Summary Judgment for Lack of Specific

Causation Evidence (Doc. 66) filed by Defendants, BP America Production

Company, BP Exploration & Production, Inc., BP p.l.c., Halliburton Energy

Services, Inc., Transocean Deepwater, Inc., Transocean Holdings, LLC, and

Transocean Offshore Deepwater Drilling, Inc. (collectively “the BP parties”).

For the following reasons, this Motion is GRANTED IN PART.

BACKGROUND

This case is one among the “B3 bundle” of cases arising out of the

Deepwater Horizon oil spill.1 This bundle comprises “claims for personal injury

and wrongful death due to exposure to oil and/or other chemicals used during

the oil spill response (e.g., dispersant).”2 These cases were originally part of a

multidistrict litigation (“MDL”) pending in the Eastern District of Louisiana

before Judge Barbier. During this MDL, Judge Barbier approved the

Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but

1 See In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,

2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).

2 Id.

the B3 plaintiffs either opted out of this agreement or were excluded from its

class definition.3 Subsequently, Judge Barbier severed the B3 cases from the

MDL to be reallocated among the judges of this Court.4 This case was

eventually reassigned to Section H.5

Cher Griffin Brown was employed in the DWH oil spill response as a

shoreline cleanup worker on the beaches of Biloxi, Gulfport, and Pascagoula,

Mississippi.6 She allegedly performed beach cleanup work, picking up oil and

tar balls. Plaintiff initially alleged that exposure to crude oil and chemical

dispersants caused her to develop a long list of adverse medical conditions,

including constipation, headaches, and sinus problems.7 Pursuant to the

Court’s Order on April 19, 2022, Plaintiff identified the medical conditions for

which she would present expert evidence, as sore throat, hypertension, chest

pain, headaches, and joint pain.8 Plaintiff asserts claims under the general

maritime law of negligence, negligence per se, and gross negligence with

respect to the spill and its cleanup.9

Now before the Court is the BP Parties’ Motion for Summary

Judgment.10 The BP Parties argue that Plaintiff has failed to produce

sufficient evidence to prove specific causation. Plaintiff opposes.11

3 Id. at 2 n.3.

4 Doc. 6.

5 See Doc. 30.

6 Doc. 66-3 at 3.

7 Doc. 1-1 at 5.

8 Doc. 74-1 at 1.

9 See Doc. 33 at 7–15.

10 See Doc. 66.

11 Doc. 74.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”12 A genuine issue

of fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”13

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in her favor.14 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”15 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case.”16 “In response to a

properly supported motion for summary judgment, the non-movant must

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”17 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

12 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

14 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

15 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

16 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

17 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.

2004) (internal citations omitted).

necessary facts.”18 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”19

LAW AND ANALYSIS

The BP Parties allege that Plaintiff has produced no admissible expert

testimony addressing specific causation, and in a toxic tort case such as this,

expert testimony as to specific causation is required.20 Plaintiff does not

contest that Dr. Cook’s expert report fails to address specific causation. Rather,

Plaintiff argues that Dr. Cook’s general causation report in conjunction with

specific evidence of her exposure is sufficient to permit a jury to conclude that

her symptoms were caused by toxicants in the oil and dispersants. Specifically,

Plaintiff asserts, “when the medical conditions are either ‘within the common

knowledge of the jury’ or ‘contemporaneous and transient’ general causation

expert testimony, along with specific evidence of exposure is all that is

required.”21 As Plaintiff makes no argument that she has admissible specific

causation evidence, the question before the Court is whether expert evidence

of specific causation is required.

The Fifth Circuit uses “a two-step process in examining the admissibility

of causation evidence in toxic tort cases. 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.”22 Because the BP

18 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

19 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

20 See Doc. 66-1 at 5.

21 Doc. 74 at 2.

22 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007).

parties do not contest Plaintiff’s general causation report from Dr. Jerald Cook,

M.D, the Court will only address specific causation.

“When the conclusion regarding medical causation is not one within

common knowledge, expert medical testimony is required to prove

causation.”23 However, there is an exception when “the complained-of injuries

[are] ‘within the layperson’s common knowledge,’ the general causation

evidence . . . is sufficient to meet [the plaintiff’s] burden of proof with regard to

summary judgment.”24 Courts applying Louisiana law have found that expert

testimony is not required to establish causation for common issues such as

“dehydration, overheating, exhaustion, mental anguish, fear, stress, anxiety,

and depression” because they are within the common knowledge of a

layperson.25

The BP Parties argue that this case is controlled by maritime law, and

as such, that this exception is inapplicable because these cases were decided

under Louisiana law.26 It is true that toxic tort cases, expert testimony is

usually required; as one court observed, it has “never held that a [maritime]

plaintiff can survive summary judgment in a toxic tort case without admissible

expert testimony on the issue of causation.”27 However, the Fifth Circuit has

found that “expert testimony is not required in cases where the nature of the

injury can be understood by lay factfinders based on ordinary knowledge and

23 Lassiegne v. Taco Bell Corp., 202 F. Supp. 2d 512, 524 (E.D. La. 2002) (finding “that the

causes of impotency, migraine headaches and PTSD are not matters within the common

knowledge of a layperson.”).

24 Guidry v. Dow Chemical Co., No. 19-12233, 2021 WL 4460505, at *2 (E.D. La. Sept. 29,

2021).

25 Ainsworth v. Am. Home Assur. Co., 239 So. 3d 359, 365–66 (La. Ct. App. 4 Cir. 2018); see

also Guidry, 2021 WL 4460505, at *2 (finding that irritant symptoms after being exposed to

a chemical are transient symptoms within the common knowledge of lay people).

26 Doc. 77 at 4.

27 Gowdy v. Marine Spill Response Corp., 925 F.3d 200, 206 (5th Cir. 2019) (citing Wills v.

Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004) (Sotomayor, J.)).

experience.”28 Other sections of this Court have applied this “so called ‘relaxed

rule’ of evidence” in maritime cases “when the nature of the alleged injury is

within the common knowledge of lay persons.”29

The Court must now determine which medical conditions are within the

common knowledge of lay people and do not require expert evidence of specific

causation. Plaintiff relies upon Guidry v. Dow Chemical Co., where the

plaintiff complained of “irritant symptoms such as nausea, eyes, nose, or throat

irritation, coughing, choking or gagging, or nausea, or headaches, dizziness,

trouble breathing, or other respiratory issues.”30 In denying summary

judgment, the court held that “[e]xpert testimony on general causation

combined with specific evidence of the nature of the [plaintiff’s] exposure is

sufficient to permit the jury to conclude that the [ethyl acrylate] release was

more likely than not the cause of the . . . transient symptoms.”31 Contrastingly,

this Court in Ciblic v. BP Exploration & Production, held that the causal link

between the plaintiff’s exposure and a later diagnosis of lung cancer was not

within the layperson's common knowledge.32 The ultimate question is whether

Plaintiff’s medical conditions are akin to a diagnosis of lung cancer in Ciblic or

similar to the irritant symptoms in Guidry.33

28 Id. at 207.

29 Stephens, 2022 WL 1081193, at *3; Turner v. BP Expl. & Prod. Inc., No. 17-4210, Doc. 61;

Wallace v. BP Expl. & Prod. Inc., No. 13-1039, Doc. 47.

30 Guidry, 2021 WL 4460505, at *1–2.

31 Id. at *3 (alterations in original).

32 Ciblic v. BP Exploration & Production, No. CV 15-995, 2017 WL 1064954, at *2 (E.D. La.

Mar. 21, 2017).

33 Troxler v. BP Exploration & Production, Inc. No. 17-4207, 2022 WL 1081193, at * (E.D. La.

April 11, 2022) (holding that “the causal connection between exposure to oil and dispersants

and [chemical pneumonitis, gastrointestinal problems, breathing difficulties, and memory

loss] is not within the common knowledge of a lay person.”); Stephens, 2022 WL 1081193, at

*4 (holding that symptoms like “nasal congestion, nasal discharge, sore throat, nausea, eye

burning, irritation, shortness of breath, cough, wheezing, headaches, dizziness, depression,

and anxiety” were within the common knowledge of laypeople and do not require an expert

on specific causation, while symptoms like “sinusitis, upper respiratory infection, abdominal

cramps and pain, mood disorder, and insomnia” were not within the knowledge of laypeople

Plaintiff alleges that the oil and dispersants caused her to develop a sore

throat, hypertension, chest pain, headaches, and joint pain.34 The Court finds

that hypertension, chest pain, and joint pain are more the complex diseases

presented in Ciblic than the irritant symptoms presented in Guidry.35 These

injuries are neither within the common knowledge of lay people nor classified

as transient or temporary. Without expert evidence on specific causation,

Plaintiff cannot meet her burden of proof as to these injuries. The remaining

medical conditions, headache and sore throat, are likely within the knowledge

of lay people.36 Therefore, Plaintiff does not require an expert on specific

causation for these particular medical conditions.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendants’ Motion

for Summary Judgment (Doc. 66) is GRANTED IN PART. Plaintiff’s claims

are DISMISSED WITH PREJUDICE except for the claims for headaches

and sore throat.

New Orleans, Louisiana this 15th day of March, 2023.

and required expert testimony on specific causation); Turner v. BP Expl. & Prod. Inc., No.

17-4210, Doc. 61 (holding that hypertension and chest pain are not medical conditions within

the common knowledge of a lay person and so expert evidence on specific causation was

required).

34 Doc. 66-3 at 2.

35 Turner, No. 17-4210, Doc. 61 (holding that hypertension and chest pain are not medical

conditions within the common knowledge of a lay person and so expert evidence on specific

causation was required).

36 Stephens, 2022 WL 1081193, at *4 (holding that a sore throat and headaches are within

the common knowledge of lay people and so the plaintiff did not need an expert on specific

causation for these medical conditions); Turner, No. 17-4210, Doc. 61 (holding that throat

irritation and headaches are within the common knowledge of lay people and so the plaintiff

did not need an expert on specific causation for these medical conditions)

g TRICHE LF

UNITED STATES DISTRICT JUDGE