United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Charlie Leon Hall III, was employed as a clean-up worker
along the Mississippi Gulf Coast, where he also lived, after
the BP/Deepwater Horizon explosion and oil spill on April 20,
2010. Complaint, Record Doc. No. 1. He filed this complaint
pursuant to the Back-End Litigation Option
(“BELO”) provisions of the BP/Deepwater Horizon
Medical Benefits Class Action Settlement Agreement
(“Medical Settlement Agreement”). Record Doc.
Nos. 6427-1 and 8218 in MDL No. 10-md-2179.
seeks compensatory damages and related costs for
later-manifested physical conditions (as defined in the
Medical Settlement Agreement) that he allegedly suffered as a
result of exposure to substances released after the oil
spill. Record Doc. No. 1. Specifically, his complaint asserts
the following conditions and/or symptoms: chronic
rhinosinusitis with testing, chronic damage to conjunctiva,
reactive airways dysfunction syndrome with testing, chronic
dermatitis at site of contact and chronic sinusitis.
Id. at ¶ 12.
BP Exploration & Production Inc. and BP America
Production Company (collectively “BP”), moved to
dismiss plaintiff's claim concerning one of his claimed
physical conditions for which he did not satisfy the Medical
Settlement Agreement's conditions precedent before filing
the instant lawsuit. BP's memorandum, Record Doc. No. 4-3
at p. 1. Specifically, BP argues that Hall failed to fulfill
the conditions precedent to bringing a BELO claim based on
chronic sinusitis. Id.
Rule 7.5 requires that a memorandum in opposition to a motion
must be filed no later than eight days before the noticed
submission date. No. memorandum in opposition to
defendant's motion to dismiss plaintiff's complaint,
Record Doc. No. 4, has been received. Accordingly, this
motion is deemed unopposed.
considered the motion, the complaint, the record and the
applicable law, I recommend that BP's motion to dismiss
be GRANTED and that plaintiff's complaint be DISMISSED
WITHOUT PREJUDICE as to his
condition of chronic sinusitis, for the following reasons.
Medical Settlement Agreement is an unambiguous, binding
contract that cannot be modified or altered without the
express written consent of the Medical Benefits Class Counsel
and BP's counsel. Record Doc. No. 6427-1 at § XXX(C)
in MDL No. 10-md-2179. The BELO lawsuit process is the
exclusive remedy for class members who seek compensation for
later-manifested physical conditions, as defined in the
Medical Settlement Agreement. Id. at § II(VV).
condition precedent to filing a BELO suit, a class member
must submit a Notice of Intent to Sue to the Medical
Settlement Agreement Claims Administrator (the “Claims
Administrator”). Upon confirming that the notice of
intent to sue is compliant with the conditions precedent, the
Claims Administrator must transmit the notice to BP. BP then
has 30 days to decide whether to mediate the claim. If, as in
this case, BP chooses not to mediate, the claimant must file
his BELO lawsuit within six months of being notified by the
Claims Administrator of BP's election not to mediate.
Id. at §§ VIII(A), (C)(1), (C)(2),
moves to dismiss Hall's complaint insofar as it concerns
the claimed condition of chronic sinusitis pursuant to this
court's BELO Cases Initial Proceedings Case Management
Order (“CMO”). The CMO allows the parties to file
a motion to dismiss without prejudice if the
complainant fails “to complete the conditions precedent
to filing such a complaint as required in the [Medical]
Settlement Agreement.” CMO, Record Doc. No. 3 in this
action, Record Doc. No. 14099 in MDL No. 10-md-2179, at
Medical Settlement Agreement states in pertinent part:
A MEDICAL BENEFITS SETTLEMENT CLASS MEMBER seeking
compensation from BP for a LATER-MANIFESTED PHYSICAL
CONDITION must submit a NOTICE OF INTENT TO SUE, . . ., to
the CLAIMS ADMINISTRATOR. The NOTICE OF INTENT TO SUE and
materials submitted therewith must be submitted to the CLAIMS
ADMINISTRATOR within 4 years after either the first diagnosis
of that LATER-MANIFESTED PHYSICAL CONDITION or the EFFECTIVE
DATE, whichever is later.
Doc. No. 6427-1 at § VIII(A) in MDL No. 10-md-2179. A
class member “may assert a claim against a BACK-END
LITIGATION OPTION DEFENDANT in a BACK-END LITIGATION OPTION
LAWSUIT only for the LATER-MANIFESTED PHYSICAL
CONDITION for which he or she timely submitted a ...