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Cook v. BP America Production Co.

United States District Court, S.D. Mississippi, Southern Division

December 4, 2019

TIFFANY COOK PLAINTIFF
v.
BP AMERICA PRODUCTION COMPANY and BP EXPLORATION & PRODUCTION, INC. DEFENDANTS

          MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION [29] FOR SUMMARY JUDGMENT AND DENYING AS MOOT DEFENDANTS' MOTION [33] TO DISMISS

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is Defendants BP America Production Company and BP Exploration & Production, Inc.'s Motion [29] for Summary Judgment Based on Lack of Causation and Motion [33] to Dismiss. Plaintiff Tiffany Cook alleges she suffered a Later-Manifested Physical Condition caused by her exposure to substances during her work in the clean-up effort following the 2010 Deepwater Horizon Oil Spill. After consideration of the record, Defendants' Motions, and relevant legal authority, the Court is of the opinion that Defendants' Motion [29] for Summary Judgment should be granted, and Defendants' Motion [33] to Dismiss should be denied as moot.

         I. BACKGROUND[1]

         Plaintiff Tiffany Cook (“Cook”) is a member of the Deepwater Horizon Medical Benefits Class and is covered by the Medical Settlement Agreement (“MSA”) entered in In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, commonly referred to as “MDL 2179”. Compl. [1] at 1; Mem. in Supp. [30] at 1. The MSA resolved “certain claims of individuals engaged as cleanup workers and residents of particular geographical boundaries in the Gulf of Mexico related to their exposure to oil and/or dispersants arising from the DEEPWATER HORIZON incident and subsequent response efforts.” See In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, No. 2:10-md-2179, 2016 WL 4091416 at *4 (E.D. La. Aug. 2, 2016). On January 11, 2013, the MSA was given final approval by the MDL 2179 court and became effective on February 12, 2014. See id.

         From May 2010 until October 2011, Cook worked as a Clean-Up Worker, as defined by the MSA, in Venice, Louisiana, and Biloxi, Mississippi, for USA Environmental, Inc., following the Deepwater Horizon Oil Spill. Compl. [1] at 4. She performed Response Activities as defined by the MSA, which consisted of shoreline clean-up in the marshes and on beaches. Id. at 5. Shoreline clean-up required Cook to lay buoys and bag contaminated materials that were being used to absorb the oil. Id.

         Cook alleges that during her performance of these activities she was exposed through inhalation, airborne, and direct contact to oil, dispersants, and other harmful chemicals. Id. On some occasions, Cook's eyes, nose, mouth, and skin were exposed to oil, dispersants, and other harmful chemicals because of a lack of protective gear. Id. Cook asserts that the various harmful effects caused by these dispersants include: eye, skin, gastrointestinal, and respiratory tract irritation; chemical pneumonia; liver and kidney effects and/or damage; central nervous system effects; nausea; vomiting; anesthetic or narcotic effects; and carcinogenic effects. Id. at 3-4.

         The MSA offered class members who did not opt-out of the Deepwater Horizon Medical Benefits Class two remedies for pursuing their medical claims. See In Re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, 2:10-md-02179-CJB-JCW, ECF 6427-1 at 32 (E.D. La. Oct. 5, 2018). The first was a compensation plan which provided fixed payments for Specified Physical Conditions (“SPC”). Id. at 35, 44. Cook submitted a SPC claim, was approved as a class member, and received a determination for her SPC. Compl. [1] at 5.

         The second remedy allowed class members to bring a lawsuit against BP America Production Company and BP Exploration & Production, Inc. (“BP Defendants”) for “Later-Manifested Physical Conditions” (“LMPCs”). In Re: Oil Spill, 2:10-md-02179-CJB-JCW, ECF 6427-1 at 60. LMPCs are physical conditions which a class member claims are the result of spill-related exposures that were first diagnosed after April 16, 2012. Id. at 20-21. Lawsuits seeking recovery for LMPCs are referred to as Back-End Litigation Option (“BELO”) suits. Id. at 12. In a BELO lawsuit, a plaintiff must prove legal causation. Id. at 70. Cook's SPC is a separate injury from the LMPC claims she asserts in this BELO lawsuit. Compl. [1] at 5.

         On March 12, 2015, Cook was diagnosed with thyroid cancer. Id. She received a valid Notice of Intent to Sue Letter, as required by the MSA, on January 30, 2018. Id. On March 9, 2018, she received BP Defendants' Notice of Election Not to Mediate. Id. Cook timely filed her BELO Complaint on July 18, 2018, within the 6-month time period of receiving BP Defendants' Notice required by the MSA. Id. The case was then transferred to this Court from the Eastern District of Louisiana on November 19, 2018. Order [7].

         II. DISCUSSION

         BP Defendants filed a Motion [29] for Summary Judgment on August 7, 2019. Mot. for Summ. J. [29]. Cook failed to respond within the time required. The Court entered a Show Cause Order on September 3, 2019, directing Cook to respond, “on or before September 9, 2019, or the Court will consider BP Defendants' Motion [29] for Summary Judgment on the merits without considering a response from Plaintiff.” Show Cause Order, Sep. 9, 2019. Cook did not file a response following that Order. BP Defendants subsequently filed a Motion [33] to Dismiss based on Cook's failure to comply with this Court's September 9, 2019, Show Cause Order. Mot. to Dismiss [33] at 1. Cook also did not respond to BP Defendants' Motion [33] to Dismiss. Thus, the Court will consider BP Defendants' Motion [29] for Summary Judgment on the merits without the benefit of a response from Cook.

         A. Summary judgment standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the movant carries this burden, “the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).

         To rebut a properly supported motion for summary judgment, the opposing party must show, with “significant probative evidence, ” that there exists a genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A genuine dispute of material fact means that evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671 F.3d 512, 516 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc.,4 ...


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