United States District Court, S.D. Mississippi, Southern Division
AMENDED MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS' MOTION TO EXCLUDE THE TESTIMONY AND OPINIONS
OF DR. STEVEN STOGNER AND MOTION FOR SUMMARY JUDGMENT BASED
ON LACK OF CAUSATION
GUIROLA, JR., UNITED STATES DISTRICT JUDGE
THE COURT are the  Motion to Exclude the
Testimony and Opinions of Dr. Steven Stogner and the 
Motion for Summary Judgment based on Lack of Causation filed
by BP American Production Company and BP Exploration &
Production Inc. (hereafter collectively referred to as
“BP”). The parties have fully briefed the
Motions. After reviewing the submissions of the parties, the
record in this matter, and the applicable law, the Court
finds that BP's Motion to Exclude and Motion for Summary
Judgment should be granted.
approximately May 12, 2010 to July 30, 2010, the plaintiff,
Blaine McGill, was employed by Miller Fishing Company to
clean up oil released in the Gulf of Mexico as a result of
the Deepwater Horizon explosion. McGill was part of
a boat crew that searched the Gulf for oil slicks. Upon
locating an oil slick, members of the boat crew would use an
oil boom to contain the oil before scooping the oil into
garbage bags kept in the boat. As a result of his work
related to the spill, McGill is a member of the class covered
by the Deepwater Horizon Medical Benefits Class
Action Settlement Agreement (“MSA”). Class
members like McGill who did not opt out of the MSA agreed not
to sue BP for medical conditions caused by the oil spill in
return for defined compensation benefits. However, the MSA
permits class members to sue BP for “Later-Manifested
Physical Conditions.” Lawsuits filed for
“Later-Manifested Physical Conditions” are called
“Back-End Litigation Option” or
2013, McGill was diagnosed with numerous illnesses, including
pneumonia and acute respiratory failure. He followed the
procedures set forth in the MSA for filing this BELO lawsuit
against BP. Pursuant to the MSA, McGill is not required to
demonstrate that he was exposed to “oil, other
hydrocarbons, and other substances released from the MC252
WELL and/or Deepwater Horizon and its appurtenances,
and/or dispersants and/or decontaminants used in connection
with the RESPONSE ACTIVITIES.” (Pl.'s Resp. Ex. 1,
at 68, ECF No. 83-1.) In addition, McGill is not required to
demonstrate that BP was at fault for the Deepwater
Horizon incident. (See id.) Nevertheless, the
parties may litigate “the level and duration of
[McGill's] exposure to oil, other hydrocarbons, and other
substances released from the MC252 WELL and/or Deepwater
Horizon and its appurtenances, and/or dispersants and/or
decontaminants used in connection with the RESPONSE
ACTIVITIES, and the timing thereof.” (See Id.
at 67.) The parties may also litigate whether McGill's
later-manifested physical condition was legally caused by his
exposure to the oil, dispersants, and other chemicals.
has designated Dr. Steven Stogner as an expert in the field
of pulmonology. In his report, Dr. Stogner opined that
McGill's exposure to the dispersant Corexit during oil
clean-up work more probably than not caused or contributed to
McGill's pulmonary dysfunction and diseases. During his
deposition, Dr. Stogner also opined that McGill's
exposure to crude oil cannot be ruled out as a cause of or
contributing factor to McGill's illnesses. BP has filed a
Motion for Summary Judgment, a Motion to Exclude Dr.
Stogner's testimony and opinions, and numerous other
motion for summary judgment may be filed by any party
asserting that there is no genuine issue of material fact and
that the movant is entitled to prevail as a matter of law on
any claim. Fed.R.Civ.P. 56. The movant bears the initial
burden of identifying those portions of the pleadings and
discovery on file, together with any affidavits, which it
believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Once the movant carries its burden, the
burden shifts to the non-movant to show that summary judgment
should not be granted. Id. at 324-25. The non-movant
may not rest upon mere allegations or denials in its
pleadings but must set forth specific facts showing the
existence of a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
parties agreed that the MSA “shall be interpreted in
accordance with General Maritime Law.” (Pl.'s Resp.
Ex. 1, at 192, ECF No. 83-1.) Under general maritime law,
“a party's negligence is actionable only if it is a
‘legal cause' of the plaintiff's
injuries.” Donaghey v. Ocean Drilling & Expl.
Co., 974 F.2d 646, 649 (5th Cir. 1992). “[L]egal
cause is something more than ‘but for' causation,
and the negligence must be a ‘substantial factor'
in the injury.” Id. (citation and internal
quotation marks omitted). “The term ‘substantial
factor' means more than ‘but for the negligence,
the harm would not have resulted.'” Id.
(citation and internal quotation marks omitted).
argues that toxic tort law also governs whether McGill's
medical conditions were caused by dispersants and/or oil. The
Fifth Circuit has held that “[s]cientific knowledge of
the harmful level of exposure to a chemical, plus knowledge
that the plaintiff was exposed to such quantities, are
minimal facts necessary to sustain the plaintiffs' burden
in a toxic tort case.” Curtis v. M&S Petroleum,
Inc., 174 F.3d 661, 670 (5th Cir. 1999). Expert
testimony is required, because “[a] plaintiff in such a
case cannot expect lay fact-finders to understand medical
causation[.]” Seaman v. Seacor Marine, L.L.C.,
326 Fed.Appx. 721, (5th Cir. 2009) (citing Allen v. Pa.
Eng'g Corp., 102 F.3d 194, 199 (5th Cir. 1996)).
is a two-step process in examining the admissibility of
causation evidence in toxic tort cases.” Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir.
2007). The court must first determine whether there has been
a showing of general causation, which “is whether a
substance is capable of causing a particular injury or
condition in the general population . . . .”
Id. (quotation omitted). If the court
“concludes that there is admissible general-causation
evidence, [it] must determine whether there is admissible
specific-causation evidence.” Id. (citation
omitted). “[S]pecific causation is whether a substance
caused a particular individual's injury.”
argues that McGill cannot establish causation as required by
the MSA and general maritime law, because expert testimony is
required in toxic tort cases. In addition, BP asserts, the
expert testimony must establish that McGill's exposure to
dispersants and/or oil was at a sufficient level and duration
to cause his medical conditions. McGill counters that
BP's arguments based on toxic tort law are precluded by
the application of general maritime law.
Fifth Circuit has previously applied toxic tort causation
standards to claims filed under the Jones Act and general
maritime law. See Seaman, 326 Fed.Appx. at 723-24.
District courts considering other BP BELO cases have also
applied toxic tort law. See, e.g., Brown v. BP Expl.
& Prod. Inc., No. 18-9927, 2019 WL 2995869, at *2-3
(E.D. La. July 9, 2019); Harriel v. BP Expl. & Prod.
Inc., No. 2:17cv197-KS-MTP, 2019 WL 2574118, at *3
(S.D.Miss. May 15, 2019); Banegas v. BP Expl. & Prod.
Inc., No. 17-7429, 2019 WL 424683, at *2 (E.D. La. Feb.
4, 2019); Legros v. BP Amer. Prod. Co., No.
16-30050, 2018 WL 4853713, at *2-3 (E.D. La. Oct. 5, 2018). A
lay jury will inevitably have just as much difficulty
determining the extent of exposure to a chemical that is
necessary to cause harm in maritime cases as in non-maritime
cases. Therefore, no justification exists for permitting a
jury to make such scientific calculations in a maritime case.
also argues that the Court should reject BP's arguments
because the MSA provides that he is not required to prove the
fact of exposure. However, the MSA does not prevent the
parties from litigating the level and duration of
exposure.” (Pl.'s Resp. Ex. 1, at 67, ECF No.
83-1.) The MSA also does not relieve McGill of his burden of
demonstrating that his ...