HELMHOLTZ
v.
BP EXPLORATION & PRODUCTION INC
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The court adopted the Magistrate Judge's recommendation to grant summary judgment because the plaintiff failed to timely designate an expert witness to establish causation.
Plaintiff sued for physical injuries allegedly caused by exposure to oil and dispersants from the Deepwater Horizon spill. Plaintiff failed to meet th…
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the Magistrate Judge in the Report and Recommendation, which is incorporated herein by reference, and therefore, these facts will not be recounted here.
When reviewing a report and recommendation, the Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (similarly requiring de novo review of any part of the Report that that is “properly objected to”). Objections must be sufficiently specific to warrant de novo review. See Macort v. Prem, Inc., 208 F. App’x 781, 783-85 (11th Cir. 2006). Absent objection, the district court judge “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge,”
28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no plain or clear error on the face of the record in order to accept the recommendation. See United States v. Slay, 714 F. 2d 1093,1095 (11th Cir. 1983); see also Fed. R. Civ. P. 72(b) (1983 advisory committee note).
Plaintiff failed to file any timely and specific objections to the Report and Recommendation. His objection was due within fourteen days of the December 13, 2022, Report and Recommendation, that is, by Tuesday, December 27, 2022. On
Tuesday, January 10, 2023, Plaintiff filed what is titled, “Motion and Memorandum in Opposition to Defendant’s Motion for Summary Judgment,” ECF No. 59. This is too little too late, and even liberally construing this belated filing as an objection,
and reviewing the Report and Recommendation de novo, the Court finds that the objection is due to be overruled. As the Magistrate Judge warned the Plaintiff, although the Court construes pro se pleadings liberally, pro se litigants are subject to the same law and rules of court as litigants who are represented by counsel, including the Federal Rules of
Civil Procedure, the Local Rules of the United States District Court for the Northern District of Florida, and this Court’s scheduling order deadlines. See generally Moon v. Newsome, 863 F. 2d 835, 837 (11th Cir. 1989). Plaintiff must show general and specific causation in this toxic tort context through expert testimony. See Chapman v. Procter & Gamble Distrib., LLC, 766 F. 3d 1296, 1316 (11th Cir. 2014); McClain v. Metabolife Int’l, Inc., 401 F. 3d 1233, 1237 (11th Cir. 2005). Plaintiff attempts to submit supporting evidence, including an article by Mark
A. D’Andrea and G. Kesava Reddy, which assessed the long-term adverse health effects of oil exposure on cleanup workers exposed to the Deepwater Horizon oil spill. But reliable expert testimony, which Plaintiff does not have, would be required to draw any conclusion regarding causation from the study. Plaintiff also again relies on his July 7, 2022, list as his expert designation but even if the Court were to set aside his failure to comply with the Court’s scheduling order, the undersigned agrees with the Magistrate Judge’s observation that no reading of the Plaintiff’s belated designation, “no matter how liberal,” could permit a finding that it satisfied the requirements of Rule 26(a)(2). ECF No. 56 at 12. Absent a timely disclosed expert and written report, Plaintiff is “unable to establish general causation, a necessary element of [his] claims.” In re Deepwater Horizon BELO Cases, No. 20-14544, 2022 WL 104243, at *3 (11th Cir. Jan. 11, 2022). On careful review, and having considered Plaintiff’s objections under de novo review, the Court finds that the Magistrate Judge’s Report and Recommendation is due to be adopted as the order of the Court and incorporated herein by reference.
Accordingly: 1. The Report and Recommendation of the Magistrate Judge dated December 13, 2022, ECF No. 56, is ADOPTED and incorporated by reference in this Order. 2. The BP Defendants’ Motion for Summary Judgment, ECF No. 38, is
GRANTED.
3. The Clerk is directed to enter judgment in favor of the Defendants, tax costs against the Plaintiff, and close the file.
DONE AND ORDERED this 31st day of January 2023.
M. Casey Rodgers
M. CASEY RODGERS
UNITED STATES DISTRICT JUDGE
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Citator
Authorities Cited
- Moon v. Lanson Newsome, 863 F.2d 835 (11th Cir. 1989)
- McCLAIN v. Metabolife Int'l, Inc., 401 F.3d 1233 (11th Cir. 2005)
- Chapman v. The Procter & Gamble Distrib., LLC, 766 F.3d 1296 (11th Cir. 2014)
- United States v. Slay, 714 F.2d 1093 (11th Cir. 1983)