United States District Court, E.D. Louisiana
ORDER & REASONS
W. ASHE, UNITED STATES DISTRICT JUDGE.
the Court is a motion by defendants BP Exploration &
Production Inc. and BP America Production Company
(collectively, “BP”) for summary
judgment. Plaintiff Perry Joseph Barthe did not file
an opposition to the motion. Having considered BP's
memorandum, the record, and the applicable law, the Court
finds that summary judgment dismissing Barthe's suit is
warranted because Barthe has not produced an expert report,
which is required to prove his toxic-tort claim.
toxic-tort case arises out of the Deepwater Horizon oil spill
that occurred on April 20, 2010. On January 11, 2013, U.S.
District Judge Carl J. Barbier, who presided over the
multidistrict litigation arising out of the Deepwater Horizon
incident, approved the Deepwater Horizon Medical
Benefits Class Action Settlement Agreement
(“MSA”). See Brown v. BP Expl. & Prod.
Inc., 2019 WL 2995869, at *1 (E.D. La. July 9, 2019).
The MSA includes a Back-End Litigation Option
(“BELO”) that permits certain class members, such
as clean-up workers who follow procedures outlined in the
MSA, to sue BP for later-manifested physical conditions
(“LMPC”). Id. The MSA defines a LMPC as
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 RESPONSE
ACTIVITIES, where such exposure occurred on or prior to
… April 16, 2012 for CLEAN-UP WORKERS.
alleges that he was exposed to “oil, other
hydrocarbons, and other substances released from [the well],
and other dispersants and decontaminants used” while he
worked as a clean-up worker in response to the Deepwater
Horizon oil spill. On May 24, 2014, Barthe was diagnosed with
chronic rhinosinusitis, reactive airways dysfunction
syndrome, and chronic eczematous reaction at the site of
contact. Barthe alleges that these medical
conditions were “legally and proximately caused by his
exposure to the substances and chemicals involved in the
Deepwater Horizon Incident.”
not dispute that Barthe was an oil-spill clean-up worker or
that he is a member of the MSA class. BP also does not dispute
that Barthe's alleged conditions, diagnosed after April
16, 2012, fit within the MSA's definition of a
LMPC. Rather, BP argues that it is entitled to
summary judgment because Barthe has not submitted an expert
report and, thus, cannot prove that his alleged medical
conditions were legally caused by his exposure to substances
related to the Deepwater Horizon oil spill.
LAW & ANALYSIS
Summary Judgment Standard
judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the 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.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing
Fed.R.Civ.P. 56(c)). “Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which the party will bear
the burden of proof at trial.” Id. A party
moving for summary judgment bears the initial burden of
demonstrating the basis for summary judgment and identifying
those portions of the record, discovery, and any affidavits
supporting the conclusion that there is no genuine issue of
material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence
cognizable under Rule 56 to demonstrate the existence of a
genuine issue of material fact. Id. at 324.
genuine issue of material fact exists if a reasonable jury
could return a verdict for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1996). The substantive law identifies which facts are
material. Id. Material facts are not genuinely
disputed when a rational trier of fact could not find for the
nonmoving party upon a review of the record taken as a whole.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Equal Emp't
Opportunity Comm'n v. Simbaki, Ltd., 767 F.3d 475,
481 (5th Cir. 2014). “[U]nsubstantiated assertions,
” “conclusory allegations, ” and merely
colorable factual bases are insufficient to defeat a motion
for summary judgment. See Anderson, 477 U.S. at
249-50; Hopper v. Frank, 16 F.3d 92, 97 (5th Cir.
1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See
Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore,
a court must assess the evidence, review the facts, and draw
any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment.
See Tolan v. Cotton, 572 U.S. 650, 656 (2014);
Daniels v. City of Arlington, 246 F.3d 500, 502 (5th
Cir. 2001). Yet, a court only draws reasonable inferences in
favor of the nonmovant “when there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
the movant demonstrates the absence of a genuine dispute, the
nonmovant must articulate specific facts and point to
supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v.
Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir.
1998); Fed.R.Civ.P. 56(c)(1)(A) & (c)(2). Such facts must
create more than “some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586.
When the nonmovant will bear the burden of proof at trial on
the dispositive issue, the moving party may simply point to
insufficient admissible evidence to establish an essential
element of the nonmovant's claim in order to satisfy its
summary judgment burden. See Celotex, 477 U.S. at