Piacun v. BP Exploration & Production, Inc. et al, No. 2:2015cv02963 - Document 42 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting 19 Motion for Summary Judgment Dismissing Plaintiff's Claims. As such, the Plaintiff's claim asserted against the Defendants BP Exploration & Production Inc. and BP America Production Company is hereby DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 12/12/2016. (cg)

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Piacun v. BP Exploration & Production, Inc. et al Doc. 42 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OSIP PIACU N , Plain tiff CIVIL ACTION VERSU S N O. 15-2 9 6 3 BP EXPLORATION & PROD U CTION , IN C., ET AL., D e fe n d an ts SECTION : “E”( 1) ORD ER AN D REAS ON S Before the Court is a Motion for Sum m ary J udgm ent filed by Defendants, BP Exploration & Production, Inc. and BP Am erican Production Com pany (collectively “BP”). 1 Plaintiff, J osip Piacun, opposes this m otion. 2 For the following reasons, BP’s m otion for sum m ary judgm ent 3 is GRAN TED . BACKGROU N D This case arises out of the Medical Benefits Class Action Settlem ent Agreem ent (“Medical Benefits Settlem ent”) in In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of Mexico, on April 20 , 20 10 (com m only referred to as “MDL 2179”). 4 Mr. Piacun is an oyster fisherm an and the owner of the oyster lugger, the M/ V MISS ANGELA. 5 Following the April 20 , 20 10 spill, Mr. Piacun and his vessel were hired to participate in the clean-up operations as part of the so-called “Vessels of Opportunity” Program (referred to as the “VoO Program ”). 6 As part of his em ploym ent in the VoO Program , Mr. Piacun was actively involved in the clean-up of oil and other substances in 1 R. Doc. 19. R. Doc. 20 . 3 R. Doc. 19. 4 In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, on April 20 , 20 10 , No. 10 -m d2179, R. Doc. 6427-1 (E.D. La. May 3, 20 12) (hereinafter “Medical Ben efits Settlem ent”). 5 R. Doc. 20 , at 1. 6 Id. 2 1 Dockets.Justia.com the coastal waters and m arshes of St. Bernard Parish, including actively searching for oil and other substances in the St. Bernard m arshes and waters. 7 Mr. Piacun alleges he personally participated in the retrieval of absorbent boom [s] saturated with oil and with substances, as part of this work, and regularly cam e into direct contact with oil and other substances. 8 On August 27, 20 15, Mr. Piacun filed a com plaint against BP. Mr. Piacun’s com plaint alleges physical and psychological injuries sustained in connection with work he perform ed during clean-up operations following the April 20 , 20 10 DEEPWATER HORIZON oil spill. In his com plaint, Mr. Piacun alleges that as a result of his em ploym ent under the VoO Program , he developed psychological, derm al, respiratory and cardiopulm onary com plications due to his exposure to crude oil and chem ical dispersants used by BP. 9 In a deposition on August 18, 20 16, Mr. Piacun identified his four conditions: atrial fibrillation, anxiety, skin cancer, and a scalp rash. 10 Mr. Piacun has sin ce affirm atively clarified he “is not pursuing a BELO claim for skin can cer or [scalp] rash,”11 and now says his claim is for his physical condition of persistent atrial fibrillation. 12 On October 4, 20 16, BP filed a m otion for sum m ary judgm ent arguing that, with respect to Mr. Piacun’s claim s regarding anxiety and atrial fibrillation, neither condition m eets the requirem ents for a com pensable “Later-Manifested Physical Condition” (LMPC), and therefore the injuries alleged are ineligible for com pensation. 13 7 Id. at 1-2. Id. at 2. 9 R. Doc. 1, at 3. 10 See R. Doc. 19-3, at 2 (citin g R. Doc. 19-5, at 5-6 (Deposition of Mr. Piacun pages 88 -90 )). 11 R. Doc. 20 , at 6 n.21; see also R. Doc. 34, at 1 ¶ 5 (Plain tiff, in his Second Restatem ent of Contested Material Facts, states he “is asserting BELO claim s based on his atrial fibrillation and related anxiety [and he] has withdrawn his BELO claim s based on skin can cer and scalp rash.”). 12 R. Doc. 20 , at 4. 13 R. Doc. 19. 8 2 LEGAL STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.”14 “An issue is m aterial if its resolution could affect the outcom e of the action.”15 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”16 All reasonable inferences are drawn in favor of the nonm oving party. 17 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 18 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”19 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 20 14 F ED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 16 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 17 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 18 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 19 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 20 Celotex, 477 U.S. at 322– 24. 15 3 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no evidence in the record to establish an essential elem ent of the nonmovant’s claim . 21 When proceeding under the first option, if the nonm oving party cannot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 22 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”23 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 24 If the m ovant m eets this burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 21 Id. at 331– 32 (Brennan , J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex Corp. v. Catrett, 477 U.S. 317, 322– 24 (1986), and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the nonm ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Bren nan’s dissent in Celotex, and requiring the m ovant to m ake an affirm ative presentation to n egate the non m ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision , the m ajority and dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 22 First N ational Bank of Arizona v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 23 Celotex, 477 U.S. at 332– 33. 24 Id. 4 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”25 “Sum m ary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”26 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”27 D ISCU SSION I. MED ICAL BEN EFITS CLASS ACTION SETTLEMEN T AGREEMEN T The Medical Benefits Settlem ent resolved certain claim s of individuals engaged as clean-up 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. 28 On J anuary 11, 20 13, the Medical Benefits Settlem ent was given final approval by the MDL 2179 court, 29 and on February 12, 20 14, it becam e effective. 30 25 Id. at 333 n .3. Id.; see also First N ational Bank of Arizona, 391 U.S at 289. 27 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 28 See In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, No. 2179, 20 16 WL 40 91416, at *4 (E.D. La. Aug 2, 20 16). 29 In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, on April 20 , 20 10 , No. 10 -m d2179, R. Doc. 8 218 (E.D. La. J an. 11, 20 13). 30 See In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, 20 16 WL 40 91416, at *4. 26 5 Under the term s of the court approved Medical Benefits Settlem ent, class m em bers surrendered their rights to sue BP for m edical conditions related to the oil spill in returned for defined com pensation benefits. 31 In addition, as the MDL 2179 court explained: Medical Benefits Settlem ent class m em bers (“Medical Class”) who did not wish to be bound by the Medical Benefits Settlem ent were required to exclude them selves, or “opt out,” pursuant to the procedures set forth in Section XI.E of the Medical Benefits Settlem ent and Paragraph 29 of the Court’s Prelim inary Approval Order concerning the Medical Benefits Settlem ent, as am en ded by the Court’s Order extending the opt-out deadline to Novem ber 1, 20 12. Thus, any plaintiff who is a m em ber of the Medical Class and did not opt out by the deadline set by the Court is now bound by the Medical Benefits Settlem ent. 32 Mr. Piacun did not opt out of the Medical Benefits Settlem ent. II. Back-En d Litigatio n Op tio n ( “BELO”) Su its Under the term s of the Medical Benefits Settlem ent, the Medical Class Mem bers who did not opt out of the agreem ent surrendered their rights to sue BP for m edical conditions related to the oil spill in return for defined com pensation benefits. 33 One exception, however, allows class m em bers who did not opt out of the Medical Ben efits Settlem ent to bring suit against BP for “Later-Manifested Physical Conditions” (“LMPCs”). 34 An LMPC is defined by the Medical Benefits Settlem ent as: A physical condition that is first diagnosed in a MEDICAL BENEFITS SETTLEMENT CLASS MEMBER after April 16, 20 12, and which is claim ed to have resulted from such MEDICAL BENEFITS SETTLEMENT CLASS MEMBER’S exposure to oil, other hydrocarbons, or other substance released form the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, an d/ or exposure to dispersants an d/ or decontam inants used in connection with the RESPONSE activities, where such exposure occurred on or prior to Septem ber 30 , 20 10 , for ZONE A RESIDENTS; on 31 See Medical Ben efits Settlem ent, at 10 6. See In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, 20 16 WL 40 91416, at *5 (internal citations om itted). 33 See In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, 20 16 WL 40 91416, at *5 (internal citations om itted). 34 Medical Benefits Settlem ent, at 60 -73. 32 6 or prior to Decem ber 31, 20 10 , for ZONE B RESIDENTS; and on or prior to April 16, 20 12, for CLEAN-UP WORKERS. 35 The Medical Benefits Settlem ent refers to lawsuits seeking recovery for LMPCs as “Back-End Litigation Option” (“BELO”) suits. 36 a . In itial Pro ce e d in g Re qu ire m e n ts in B ELO Su its On J anuary 30 , 20 15, the MDL 2179 court issued its BELO Cases Initial Proceedings Case Managem ent Order. 37 In its order, the MDL 2179 court explained: At a m inim um , a BELO com plaint filed after entry of this case m anagem ent order m ust allege: (A) the particular United States District Court in which plaintiff contends venue is m ost appropriate, including (i) plaintiff’s current judicial district of residence and (ii) plaintiff’s judicial district of residen ce at the tim e of the alleged exposure; (B) identification of plaintiff’s physical/ m edical condition allegedly caused by the exposure; (C) the date of first diagnosis of that condition; (D) the general circum stances of plaintiff’s exposure, including (i) identification of the agent to which plaintiff was exposed (e.g. oil, chem ical dispersant, etc.); (ii) location[s] of where the alleged exposure or other injuries occurred; (iii) level duration of exposure, if known; and (iv) whether plaintiff’s exposure occurred while he was an oil spill cleanup worker and, if so, the nam e and address of his oil spill cleanup direct em ployer. 38 Stated differently, to pursue a BELO claim , a plaintiff m ust sufficiently allege in his or her com plaint that (1) he or she has a physical condition; (2) the physical condition was first diagnosed after April 16, 20 12; and (3) that he or she claim s the physical condition resulted from exposure to oil or other hydrocarbon s, and/ or dispersants or decontam inants used in connection with DEEPWATER HORIZON response activities. 39 As set forth in the case m anagem ent order, the parties gen erally are prohibited from filing m otions during the initial proceedings stage. Defendants m ay, however, file a 35 Id. at 20 -21. Id. at 60 -73. 37 See R. Doc. 3. 38 Id. at 3. 39 Medical Benefits Settlem ent, at 20 -21, 61. 36 7 m otion “to dism iss an individual BELO com plaint without prejudice for failure to com plete the conditions precedent to filing such a com plaint as required in the Settlem ent Agreem ent.”40 In this case, no such m otion was m ade. The parties stipulated venue for Mr. Piacun’s claim in the Eastern District of Louisiana 41 and the claim was reassigned to this Court on J anuary 11, 20 16. 42 Once transferred or reassigned, the BELO claim proceeds as governed by the Medical Benefits Settlem ent. As set forth in the case m anagem ent order, “All m otions prohibited from filing [during the initial proceedings] will not be deem ed waived and are specifically preserved for later filing before any subsequently assigned presiding judge.”43 b. Mo tio n Practice BP has now filed a m otion for sum m ary judgm ent to dism iss Piacun’s claim for failing to satisfy the elem ents of a valid BELO claim as set forth in the Medical Benefits Settlem ent. 44 To prevail at trial, the BELO claim ant m ust prove the following elem ents: i. The fact of diagnosis (i.e., that the claim ant was correctly diagnosed with the alleged physical condition after April 16, 20 12); ii. The am ount and location of oil, other hydrocarbons, and other substances released from the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontam inants used in connection with the RESPONSE ACTIVITIES and the tim ing thereof; iii. The level and duration of the MEDICAL BENEFITS SETTLEMENT CLASS MEMBER’S exposure to oil, other hydrocarbons, and other substances 40 R. Doc. 3, at 7 (em phasis in original). Doc. 9. 42 R. Doc. 10 . 43 R. Doc. 3, at 7 (em phasis in original). 44 R. Doc. 19. 41 R. 8 released from the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontam inants used in connection with the RESPONSE ACTIVITIES, and the tim ing thereof; iv. Whether the MEDICAL BENEFITS SETTLEMENT CLASS MEMBER’S alleged LATER-MANIFESTED PHYSICAL CONDITION was legally caused by his or her exposure to oil, other hydrocarbons, and other substances released from the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontam inants use in connection with the RESPONSE ACTIVITIES; v. Whether there exist any alternative causes for the MEDICAL BENEFITS SETTLEMENT CLASS MEMBER’S alleged LATER-MANIFESTED PHYSICAL CONDITION, including, but not lim ited to, exposure to other substances or sources of contam inants an d/ or toxins; an d vi. The am ount, if any, of com pensatory dam ages to which the MEDICAL BENEFITS SETTLEMENT CLASS MEMBER is entitled. 45 In its m otion for summ ary judgm ent, BP argues Piacun cannot satisfy his burden of proving that his atrial fibrillation is a com pensable LMPC. 46 First, BP argues Piacun’s atrial fibrillation was not first diagnosed after April 16, 20 12, as required by the Medical Benefits Settlem ent. 47 Second, BP argues Piacun’s atrial fibrillation claim is not a com pensable LMPC under the Medical Ben efits Settlem ent because it was not caused by toxic exposure but instead, the “perception of stress related to the dealings with the BP 45 Id. 69-70 . R. Doc. 19-3, at 4. 47 Id. (citing R. Doc 19-5, at 7, 9). 46 9 oil spill.”48 According to BP, “Piacun candidly adm its that [his atrial fibrillation did not get] worse because of exposure to oil or any other toxic substance, as would be required for a BELO suit. Instead, Piacun claim s that his exposure to m edia and news accounts of the spill worsened his atrial fibrillation.”49 Plaintiff responds by arguing his persistent atrial fibrillation is a physical condition and that it was first diagnosed after April 16, 20 12. 50 Although Plaintiff concedes he had experienced episodes of atrial fibrillation prior to his involvem ent in the VoO program , he states his “persistent atrial fibrillation was new and was first diagnosed” by Dr. McKinnie on Septem ber 26, 20 12. 51 Plaintiff also argues his “persistent atrial fibrillation resulted from his anxiety related to his exposure to oil and other substances during cleanup operations.”52 It is undisputed atrial fibrillation and persistent atrial fibrillation are cognizable physical conditions under the Medical Ben efits Settlem ent. 53 A. W a s Piacu n Co rre ctly D iagn o s e d w ith a Ph ys ica l Co n d itio n Afte r Ap ril 16 , 2 0 12 ? It is uncontested that Piacun was diagnosed with atrial fibrillation prior to April 20 , 20 10 . 54 As a result, BP argues Piacun cannot dem onstrate that his atrial fibrillation 55 was first diagnosed after April 16, 20 12. 56 In response, Piacun argues that prior to the 48 Id. R. Doc. 19-3, at 4. 50 R. Doc. 20 , at 4. 51 Id. 52 Id. at 5. 53 In his statem ent of contested facts, Mr. Piacun states, “Persistent atrial fibrillation is a physical condition.” R. Doc. 20 -1, at 2 ¶ 12. Defendants do not address this issue in its m otion or reply. 54 See R. Doc. 34, at 2 ¶ 6. 55 Throughout its m otion, BP also discusses Mr. Piacun’s claim for anxiety. See, e.g., R. Doc. 19-3, at 1. As previously stated, however, Mr. Piacun has clarified his claim is for persistent atrial fibrillation. See R. Doc. 20 , at 4. 56 See R. Doc. 19-3, at 4. 49 10 spill, his “atrial fibrillation had been controlled through m edication.”57 According to Piacun, “Prior to this tim e, [he] had been experiencing only interm ittent episodes of atrial fibrillation.”58 Plaintiff, in his second restatem ent of contested m aterial facts, m aintain s “his atrial fibrillation and anxiety recurred and becam e persistent after April 16, 20 12,”59 and that he was diagnosed as persistent atrial fibrillation by Dr. J am es McKinnie on Septem ber 26, 20 12. 60 Plaintiff cites to a record from his visit with Dr. McKinnie on Septem ber 26, 20 12 to raise an issue of fact as to whether he was first diagnosed with persistent atrial fibrillation before or after April 16, 20 12. 61 Nowhere in this m edical record, however, does it state that Plaintiff has been new ly diagnosed with persistent atrial fibrillation. The record only states “new buck [sic] in afib!”62 Nowhere, however, in the section of the deposition transcript provided does Dr. McKinnie testify that he diagnosed Mr. Piacun with persistent atrial fibrillation or that this diagnosis first occurred after April 16, 20 12. Plaintiff has not com e forward with sum m ary judgm ent evidence to raise a genuin e issue of m aterial fact as to whether he was diagnosed with persistent atrial fibrillation and, if so, when. Even if he had, however, BP would still be entitled to summ ary judgm ent. 63 57 R. Doc. 20 , at 3. Id. at 3 n .6. 59 R. Doc. 34, at 2 ¶ 6. 60 R. Doc. 20 , at 4 61 See id. at n.14 (citin g R. Doc. 20 -4). 62 R. Doc. 20 -4, at 2. See also, e.g., R. Doc. 20 , at 4, n.15 (citing to the October 3, 20 16, deposition of Dr. McKinnie, now filed as R. Doc. 20 -5). 63 The Court notes that under the agreed upon term s of the Medical Benefits Settlem ent, it is clear a plaintiff m ay bring a BELO claim for a preexistin g condition exacerbated by his or her exposure to oil and/ or other substances so long as the conditions m eet the other requirem ents of a LMPC. See In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of Mexico, 295 F.R.D. 112, 159 (referencing In re Oil Spill by the Oil Rig “Deepw ater Horizon” OBJECTION TO SETTLEMEN T, No. 10 -cv-777, R. Doc. 92, at 15-16.). 58 11 B. W a s Pla in tiff’s LMPC Le gally Cau s e d By H is Exp o s u re to Oil an d / o r Oth e r Su bs tan ce s U s e d in Co n n e ctio n w ith D EEPW ATER H ORIZON Re s p o n s e Activitie s ? It is undisputed that the stress allegedly causing Mr. Piacun’s atrial fibrillation was not caused by his exposure to oil and/ or other substances during clean-up operations but instead is a reaction to news reports of others associated with the clean-up efforts developing m edical conditions as a result of their exposure to oil and/ or other substances during clean-up operations. 64 In his opposition to BP’s m otion for sum m ary judgm ent, Piacun states that news reports of other clean-up workers getting sick “caused him to experience anxiety which, in turn, caused a recurrence and persistence of his atrial fibrillation.”65 As the Court appreciates it, Piacun’s argum ent appears to be that as a result of his exposure to oil and other substances during his involvem ent in clean-up operations, these news reports m ade him anxious that he too would develop a medical condition as a result of his exposure. The sole question before this Court is whether BP is entitled to a judgm ent as a m atter of law because a physical condition caused by anxiety resulting from news reports about other clean-up workers getting sick is not covered under the term s of the BELO portion of the Medical Benefits Settlem ent. While a claim ant in a BELO lawsuit need not prove liability, a claim ant “m ust prove causation.”66 The BELO section of the Medical Benefits Settlem ent explicitly reserves the right for BP to challenge at trial whether a BELO plaintiff’s LMPC “was legally caused by 64 See R. Doc. 20 -1 R. Doc. 20 -1, at 2 ¶ 5 (“Mr. Piacun began to experience stress an d anxiety as a result of concerns relatin g to the health effects he m ay experience resulting from his exposure to oil, other hydrocarbons, dispersants and other substances durin g the clean -up operations.”); R. Doc. 34, at 2 ¶ 7 (“Mr. Piacun testified further that these reports caused him to experience anxiety which, in turn , caused a recurrence and persistence of his atrial fibrillation .”). 65 R. Doc. 34, at 2 ¶ 7. 66 In re Oil Spill by the Oil Rig “Deepw ater Horizon” in the Gulf of M exico, on April 20 , 20 10 , No. 10 -m d2179, R. Doc. 13733 (E.D. La. Nov. 26, 20 14). 12 his or her exposure to oil, other hydrocarbons, and other substances released from the MC252 WELL and/ or the Deepw ater Horizon and its appurtenances, and/ or dispersants and/ or decontam inants used in connection with the RESPONSE ACTIVITIES.”67 In addition, BP m ay challenge “[w]hether there exists any alternative causes” for the alleged LMPC. 68 The Medical Benefits Settlem ent “and the RELEASE hereunder shall be interpreted in accordance with General Maritim e Law.”69 In the context of General Maritim e Law, The Fifth Circuit has explained, “Legal cause is som ething m ore than ‘but for’ causation, and the negligence m ust be a ‘substantial factor’ in the injury.”70 “The term ‘substantial factor’ means m ore than ‘but for negligence, the harm would not have resulted.’”71 The Court finds the Medical Ben efits Settlem ent unam biguously requires that a BELO claim ant dem onstrate that exposure to oil and/ or other substances legally caused his or her physical condition in order to receive com pensation for a LMPC. The BELO section of the Medical Benefits Settlem ent does not provide recovery for a physical condition not legally caused by a BELO claim ant’s exposure to oil and/ or other substances used in connection with DEEPWATER HORIZON response activities. By his own adm ission, Plaintiff’s persistent atrial fibrillation was caused by his anxiety following news an d reports of other people’s conditions resulting from their exposure to oil and/ or other substances. 72 67 Medical Benefits Settlem ent, at 70 (em phasis added). Id. 69 Id. at 192. 70 Thom as v. Express Boat Co., 759 F.2d 444, 448 (5th Cir. 1985). 71 In re Specialty Marine Servs. Inc., No. CIV.A. 13-6379, 20 14 WL 68960 38, at *2 (E.D. La. Dec. 8, 20 14) (quotin g Spinks v. Chevron Oil Co., 50 7 F.2d 216, 223 (5th Cir. 1975)). 72 See, e.g., R. Doc. 34, at 2 ¶ 7. 68 13 At trial, Piacun would have the burden of proving that his atrial fibrillation and stress were legally caused by his exposure to oil and/ or other substances in connection with his participation in the VoO program . The Court finds BP has put forward sufficient affirm ative eviden ce that negates this essential elem ent of Piacun’s claim . Plaintiff has not com e forward with evidence to show that this is a genuine factual issue for trial. As a result, the Court finds BP is entitled to sum m ary judgm ent as a m atter of law that Plaintiff’s physical condition was not legally caused by his exposure to oil and/ or other substances in connection with his participation in the VoO program . CON CLU SION For the foregoing reasons, IT IS ORD ERED that BP’s m otion for sum m ary judgm ent 73 is GRAN TED . As such, the Plaintiff’s claim asserted against the Defendants BP Exploration & Production Inc. and BP Am erica Production Com pany is hereby D ISMISSED W ITH PREJU D ICE. 74 N e w Orle a n s , Lo u is ian a, th is 12 th d ay o f D e ce m be r, 2 0 16 . ______ _____________ ________ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 73 R. Doc. 19. On Novem ber 15, BP filed a m otion in lim ine to exclude the testim ony of Dr. J am es J . McKinnie. R. Doc. 28. Accordingly, BP’s m otion in lim ine is denied as m oot. 74 14

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