United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION  FOR SUMMARY JUDGMENT AND DENYING AS MOOT
DEFENDANTS' MOTION  TO DISMISS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Defendants BP America Production Company and BP
Exploration & Production, Inc.'s Motion  for
Summary Judgment Based on Lack of Causation and Motion 
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  for Summary Judgment should be
granted, and Defendants' Motion  to Dismiss should be
denied as moot.
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.  at 1; Mem. in Supp. 
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.
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.  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.
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.
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.  at 5.
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.  at 5.
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 .
Defendants filed a Motion  for Summary Judgment on August
7, 2019. Mot. for Summ. J. . 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  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  to Dismiss based on
Cook's failure to comply with this Court's September
9, 2019, Show Cause Order. Mot. to Dismiss  at 1. Cook
also did not respond to BP Defendants' Motion  to
Dismiss. Thus, the Court will consider BP Defendants'
Motion  for Summary Judgment on the merits without the
benefit of a response from Cook.
Summary judgment standard
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).
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 ...