Dufour V. BP Exploration & Production, Incorporated, --F.4th --, 2026 WL 3215980, 2026 U.S. App. LEXIS 32819 *, 2026 LX 603455 (5th Cir. Oct. 27, 2006)
By Arthur A. Crais, Jr., Adjunct Professor
This suit was filed in federal court in the Eastern District of Louisiana as part of the Back-End Litigation Option (BELO) of the Medical Settlement Agreement (MSA) in the Deepwater Horizon class-action litigation and transferred to the Southern District of Mississippi as both parties agreed it was the proper venue.[1] Mr. Dufour worked as a clean-up worker for almost three years around Pascagoula, Mississippi.[2] He alleged that exposure to crude oil and chemical dispersants aggravated his pre-existing chronic asthma.[3] The district court judge in his order denying Dufour a Daubert hearing, also struck the reports of his two experts and ultimately granted to BP Summary Judgment dismissing the claim in its entirety. A split panel affirmed. Judge Richman wrote the majority opinion in which Judge Ramirez joined. Judge Oldham dissented.
What law applies? The trial judge applied maritime law. Both the plaintiff and BP agreed that maritime law applied to the claim. The majority also referenced the BELO settlement agreement which adopted maritime law to resolve disputes relating to the settlement agreement.[4]The majority then proceeds to analyze whether there is a body of judicial decisions establishing a causation principle in maritime law for toxic tort cases and concludes:
that there is either (1) “a body of judicial decisions” that “suffice” to establish the maritime rule that causation principles that have been applied in certain types of non-maritime toxic tort cases for decades37 apply under maritime law in cases like the present one, or (2) at least in this circuit, as well as the Second and Eleventh Circuits, federal courts have created that maritime rule.[5]
The district court did not commit legal error in applying “widely accepted toxic tort causation principles as part of maritime law” in the case at bar. As such, the trial judge did not abuse his discretion in not holding a Daubert hearing but also did not abuse his discretion in excluding Dufour’s experts nor in granting Summary Judgment for BP and in dismissing the claim in its entirety.[6]
Judge Oldham in dissent challenges the majority’s application of maritime law.[7] The choice of law clause in the BELO settlement adopts maritime law for interpretation of the agreement not the claims arising from the settlement.[8] Furthermore, parties cannot agree to what law applies during litigation.[9]
Is rehearing en banc likely?
A Westlaw copy of the opinion is attached.
[1] 2026 WL 3215980 at *1.
[2] See: Dufour v. BP Expl., 2023 U.S. Dist. LEXIS 98716 *, 2023 WL 3807923 (S.D. Miss. 2023)
[3] 2026 WL 3215980 at *1.
[4] “’[N]otwithstanding the law applicable to the underlying claims, which the PARTIES dispute, this MEDICAL SETTLEMENT AGREEMENT and the RELEASE hereunder shall be interpreted in accordance with General Maritime Law.” Id.
[5] Id. at *4.
[6] Id. at *9.
[7] Id.
[8] Id. at 12. It should be noted that the BELO settlement agreement excepts underlying claims: “'[n]otwithstanding the law applicable to the underlying claims….'” Id. at 1.
[9] Id. citing Ezell v. Hayes Oilfield Const. Co., 693 F.2d 489, 492 n.2 (5th Cir. 1982).
