Case Name: George Larry Myers v BP America, Inc.
Date Decided: July 29, 2009
Court: U.S.D.C. Western District of Louisiana
Judge: Judge Doherty
Citation: 2009 WL 2341983
Before this Court is a motion for partial summary judgment filed by defendants, including BP America Inc. (BP). The motion for summary judgment is in response to plaintiffs’ request to certify this matter as a class action.
Plaintiff, George Larry Myers (Myers), employed by BP engaged in the decommissioning of a platform while living aboard the L/N Dixie Patriot. Myers claimed he became seriously ill, and afflicted with permanent neurological, psychological, and pathological conditions as a result of the movement, improper storage, cutting and removal of radioactive liquids, flow lines and other contaminated equipment on and from the deck of the Dixie Patriot.
Myers also claims he and other proposed class members suffered significant exposure to hazardous substances and therefore, have a significantly increased risk of contracting a serious latent disease.
Myers filed claim for himself and other members of the seaman class, under the Jones Act, general maritime law, the applicable Louisiana law, the unseaworthiness of L/B Dixie Patriot and for maintenance and cure
Extensive discovery has revealed that Myers, the sole named class representative, is a sixty year old male, who has a twenty year history of pipe smoking and had preexisting medical problems.
BP moved for summary judgment against Myers’ attempt to certify as a class.
Did the Court grant BP’s motion for summary judgment concluding, as a matter of law, class certification is improper?
The Fifth Circuit, in Exxon Mobil, has said class certification is inappropriate where each of the plaintiffs claims “will be highly individualized with respect to proximate causation, including individual issues of exposure, susceptibility to illness, and types of physical injuries. The Fifth Circuit, in Exxon Mobil, also noted “one set of operative facts would not establish liability and the end result would be a series of individual mini-trials which the predominance requirement is intended to prevent.”
The Court found that the injuries are highly individualized and inappropriate for class wide adjudication. The proposed class members’ shared common experience of radiation exposure thus, the predominance factor was not satisfied either.
Myers contended that each class member plaintiff’s damages may be calculated pursuant to a formula. However this Court found that each plaintiff’s damages would have to be uniquely calculated.
Accordingly, this Court granted BP’s motion for summary judgment holding, as a matter of law, the employees’ claim could not be certified for a class action lawsuit.
Class action lawsuits are potentially damaging to big corporations such as BP. Accordingly, to receive the class certification the plaintiff must demonstrate, among other things, that each class member have a common injury and causation to injury. Here because experts on each individual’s health would have to be taken into account to determine causation and that each employee’s exposure was to radiation differed, the Court found class certification improper.