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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: DEEPWATER HORIZON 

BELO CASES

Case No. 3:19cv963

This Document Relates to:

Cases Listed on Exhibit A

Judge M. Casey Rodgers 

Magistrate Judge Gary R. Jones

ORDER

Before the Court is the Report and Recommendation of the Magistrate Judge 

dated November 30, 2021, ECF No. 374 (Master Docket), recommending the denial

of BP’s Motion for Summary Judgment Based on No Admissible Proof of Injury, in 

each Back-End Litigation Option (“BELO”) case listed on Exhibit A.1

 BP argued 

that each Plaintiff’s suit is based on diagnostic reports purportedly authored by Dr. 

Ron Lippman, D.O., who has subsequently stated by affidavit that he had no doctorpatient relationship with these plaintiffs and therefore cannot verify the underlying 

diagnoses or the contents of the medical records as presented in the BELO claims 

administration process. BP argued there is thus no admissible proof of a first 

diagnosis found within the Notice of Intent to Sue of the BELO claims process,

1 The Court assumes the parties’ familiarity with the BELO context and basic facts of the 

Deepwater Horizon oil spill and MDL proceeding. The context and facts are also adequately set 

out within the Report and Recommendation, which is adopted herein by reference, and thus need 

not be stated again in this Order.

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which is a precondition to filing a BELO suit. BP also argued that Plaintiffs cannot 

retroactively correct the lack of a first diagnosis within the Notice of Intent to Sue

(which was presented to the claims administrator) by establishing a correct diagnosis 

during the discovery phase of their BELO suits. 

The Magistrate Judge thoroughly considered the claims process as described 

in the Medical Benefits Class Action Settlement Agreement (“MSA”) and concluded

that BP’s argument was inconsistent with the intent of the BELO process. The 

Magistrate Judge correctly explained that the Notice of Intent to Sue stage was 

intended as a screening process in which Plaintiffs would be required to substantiate 

their claim with either the certification of a physician’s diagnosis or medical records 

containing the diagnosis and date of the first diagnosis, but the fact of a correct 

diagnosis would remain an issue to be litigated within a BELO suit.

2 The Magistrate 

Judge further explained that “it would be unjust to grant summary judgment now 

against Plaintiffs who have advanced through the screening process and have 

reliable evidence of diagnosis.”3 ECF No. 374 at 10. In other words, according to 

2 See R&R, ECF No. 374 at 9 (citing In re: Oil Spill by the Oil Rig “Deepwater Horizon” 

in the Gulf of Mexico, on April 20, 2010, Case No. 2:10-md-2179-CJB-JCW (E.D. La), ECF No. 

6427-6 (MSA, Ex. 4)).

3 The Magistrate Judge declined to address the “tangential” argument that Physicians’ 

Assistants can provide competent medical evidence, noting that the issue was not before the Court

because it was beyond the scope of the sur-reply allowed. ECF No. 374 at 10, n. 9.

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the Magistrate Judge, BP misconstrued the MSA to require proof of a correct 

diagnosis at the claims administration stage. Id. at 5-6. 

Having fully reviewed the matter, the undersigned agrees and thus rejects 

BP’s objection and argument that the Magistrate Judge misinterpreted the procedural 

requirements for the Notice of Intent to Sue, see ECF No. 389. Rather than 

foreclosing a challenge before trial, as BP suggests, the Magistrate Judge simply and 

properly recognized that the claims administration procedure was intended as a 

streamlined screening process that would ensure Plaintiffs had record evidence of a 

diagnosis either through medical records or the certification of a physician. Nothing 

more. The Magistrate Judge did not conclude, as BP argues, that a later diagnosis 

can be substituted in where none existed in the records before the claims 

administrator. Nor did the Magistrate Judge equate “reliable” records with a 

“correct” diagnosis. Although the Magistrate Judge noted that the evidence was 

accepted by the claims administrator as facially sufficient to permit suit, he did not 

imply that this Court would rubber stamp the claims administrator’s screening 

determination on a fully developed record. Plaintiffs still have the burden to prove 

the correctness of any diagnosis but they should be given an opportunity to do that 

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through discovery, as opposed to being subject to a second preliminary check on 

their evidence before discovery is completed.

4

 

Having fully reviewed the Report and Recommendation and having reviewed 

all timely filed objections de novo, the Court concludes that the Report and 

Recommendation should be adopted. Additionally, although Plaintiffs requested

additional time to respond to the objections in light of their pending Motion for 

Sanctions (ECF No. 395), the Court finds that a reply is unnecessary and 

consequently, the request for additional time is moot. The Court expresses no 

opinion on the merits of the cases, the credibility or reliability of the evidence, or on

the merits of the Motion for Sanctions, which is not yet ripe for review.

Accordingly:

1. The Report and Recommendation of the Magistrate Judge dated 

November 30, 2021, ECF No. 374 (Master Docket), is ADOPTED and incorporated 

by reference in this Order, and BP’s Objections, ECF No. 389, are OVERRULED.

2. Defendant BP’s Motion for Summary Judgment Based on No 

Admissible Proof of Injury, ECF No. 328 (Master Docket), is DENIED. 

4 Generally, summary judgment on a technicality related to the claims process is 

inappropriate. See generally, Harriel v. BP, Case No. 2:17cv197-KS-MTP (S.D. Miss. May 13, 

2019).

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3. Plaintiffs’ request for additional time to respond to the objections, ECF 

No. 397, is DENIED as MOOT. 

DONE AND ORDERED this 28th day of December 2021.

M. Casey Rodgers M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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