United States District Court, E.D. Louisiana
SECTION:
“H”
ORDER AND REASONS
JANE
TRICHE MILAZZO UNITED STATES DISTRICT JUDGE
Before
the Court is Defendant's Motion for Summary Judgment
(Doc. 30). For the following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff
Pero Cibilic is an oyster fisherman who aided in the oil
spill cleanup in the aftermath of BP's Deepwater Horizon
oil spill in 2010. In 2014, Plaintiff was diagnosed with lung
cancer, and he brought this action against BP Exploration
& Production Inc. and BP America Production Company
(collectively, “BP”) alleging that his lung
cancer resulted from exposure to oil and dispersants while
working in the spill response.
This
case is a Back-End Litigation Option case pursuant to the
Deepwater Horizon Medical Benefits Class Action Settlement
(“Medical Settlement”) reached in the
multi-district litigation of In re Oil Spill by the Oil
Rig “Deepwater Horizon” in the Gulf of Mexico, on
April 20, 2010. The Medical Settlement provides a
process for class members to sue BP for physical conditions
that manifested after April 2012. Plaintiff has brought
claims for negligence, gross negligence, negligence per se,
and punitive damages under general maritime law.
Defendants
have filed the instant Motion for Summary Judgment alleging
that Plaintiff cannot prove causation. Plaintiff has not
filed an opposition to this Motion. The Court may not,
however, simply grant the instant Motion as unopposed. The
Fifth Circuit approaches the automatic grant of dispositive
motions with considerable aversion.[1] Accordingly, this Court has
considered the merits of the Defendants' Motion.
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.”[2] A genuine issue
of fact exists only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.”[3]
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 his
favor.[4] “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.”[5] 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.”[6] “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.”[7] “We do not . . . in the absence of
any proof, assume that the nonmoving party could or would
prove the necessary facts.”[8] Additionally, “[t]he
mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion.”[9]
LAW
AND ANALYSIS
Pursuant
to the Medical Settlement, a class member “who did not
opt out of the agreement surrendered their rights to sue BP
for medical conditions related to the oil spill in return for
defined compensation benefits. One exception, however, allows
class members who did not opt out of the Medical Benefits
Settlement to bring suit against BP for
‘Later-Manifested Physical Conditions'
(‘LMPCs').”[10] Suits seeking recovery for
LMPCs are referred to as Back-End Litigation Options
(“BELO”) suits. The Medical Settlement sets out
certain factors that a class member must prove to succeed on
his BELO claim and others which need not be proven. For
example, a class member does not have to prove BP's fault
for his LMPC or that he was exposed to oil and dispersants.
However, the Medical Settlement does not dispense of a class
member's obligation to prove causation. Indeed, the
Medical Settlement expressly provides that the issue of
whether the class member's LMPC “was legally caused
by his or her exposure to oil, other hydrocarbons, and other
substances” may be litigated at trial. In addition, BP
may challenge whether there exists any alternative causes of
the class member's LMPC. Accordingly, Defendants argue
that Plaintiff cannot prove causation.
“Under
the general maritime law, a party's negligence is
actionable only if it is a ‘legal cause' of the
plaintiff's injuries. [L]egal cause is something more
than ‘but for' causation, and the negligence must
be a ‘substantial factor' in the
injury.”[11] Here, Defendants argue that Plaintiff
cannot show that his exposure to oil and dispersants caused
his lung cancer because he has not retained an expert to
testify to such. In general, “when the conclusion
regarding medical causation is not one within common
knowledge, expert medical testimony is required to prove
causation.”[12] Certainly, the causal link between
exposure to oil and dispersants and lung cancer is not within
the layperson's common knowledge. “In a toxic tort
suit such as this one, the plaintiff must present admissible
expert testimony to establish general causation as well as
specific causation.”[13]
Plaintiff
has not disclosed the name of any expert from which he
intends to elicit an opinion on causation. In addition,
Plaintiff has failed to oppose this motion and put forth any
evidence that he may have of causation. Accordingly,
Plaintiff cannot succeed on a ...