Boggs v. BP Exploration & Production, Inc. et al

Filing 123

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 109 Motion to Amend the Amended Scheduling Order is GRANTED. IT IS FURTHER ORDERED that the Amended Scheduling Order is hereby VACATED. Signed by Judge Susie Morgan on 12/13/2022. (pp)

Case 2:16-cv-13476-SM-KWR Document 123 Filed 12/13/22 Page 1 of 6

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES A. BOGGS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-13476

BP EXPLORATION & PRODUCTION
INC., ET AL.,
Defendants

SECTION: “E” (4)

ORDER AND REASONS
Before the Court is a Motion to Extend Case Management Deadlines (“Motion to
Amend the Amended Scheduling Order” or “Motion”) filed by Charles A. Boggs
(“Plaintiff”).1 BP Exploration & Production, Inc. and BP America Production Company
(“Defendants”)2 filed an opposition.3 Plaintiff filed a reply in support.4 For the reasons
that follow, Plaintiff’s Motion is GRANTED.
BACKGROUND
Plaintiff filed the instant B3 action over six years ago, alleging his exposure to
Deepwater Horizon (“DWH”) toxins while residing in a home that fronts the Gulf of
Mexico in Long Beach, Mississippi, caused him to suffer a host of adverse medical
conditions.5 On September 20, 2021, a Scheduling Order was issued.6 Seven months later,

R. Doc. 109.
BP p.l.c., Transocean Offshore Deepwater Drilling, Inc., Transocean Deepwater, Inc., Transocean
Holdings, LLC, Triton Asset Leasing, GmbH, Halliburton Energy Service, Inc., Sperry Drilling Services, and
Transocean, Ltd., additional Defendants in this case, did not file an opposition.
3 R. Doc. 113.
4 R. Doc. 120.
5 R. Doc. 94-17 at p. 1.
6 R. Doc. 54.
1

2

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on April 19, 2022, the parties jointly moved to amend the Scheduling Order.7 Thereafter,
the Court issued an Amended Scheduling Order—the current scheduling order in place in
this case.8 Presently, Plaintiff’s expert reports must be delivered to defense counsel by
December 16, 2022, depositions and discovery will conclude February 7, 2023, the
dispositive motion deadline is February 14, 2023, and trial is set for April 17, 2023.9 Now
before the Court is Plaintiff’s opposed November 21, 2022 Motion to Amend the Amended
Scheduling Order.10
LAW AND ANALYSIS
Rule 16(b) provides that once a scheduling order has been entered, it “may be
modified for only good cause and with the judge’s consent.”11 The good cause standard
requires a party “to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.”12 The Fifth Circuit has instructed district
courts to consider four factors in exercising their “broad discretion to preserve the
integrity and purpose of the pretrial order.”13 Namely, (1) the explanation for the
requested extension; (2) the importance of the discovery; (3) potential prejudice in
allowing the extension; and (4) the availability of a continuance to cure such prejudice.14
In deciding whether to grant an extension, the Court’s “judgment range is exceedingly
wide,” for it “must consider not only the facts of the particular case but also all of the
demands on counsel’s time and the court’s.”15
R. Doc. 69.
R. Doc. 77.
9 Id. at pp. 8, 9, 12.
10 See R. Doc. 109 (for Plaintiff’s Motion); see also R. Doc. 113 (for Defendant’s opposition to the Motion).
11 FED. R. CIV. PRO. 16(b).
12 S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N.A., 315 F.3d 533, 536 (5th Cir. 2003) (internal citations
omitted).
13 Id. at 535-56 (internal quotations omitted).
14 Id. at 536.
15 See Mejia v. Brothers Petroleum, LLC, 2015 WL 5254696, at *4 (E.D. La. 9/9/2015) (Vance, J.).
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In terms of the first factor, Plaintiff points to discovery delays by third parties as
his explanation for the requested extension. In their briefing, the parties agree about the
status of third-party discovery, as follows. First, CTEH produced all documents requested
in response to a January 3, 2022 subpoena issued by a different DWH plaintiff, though
represented by Plaintiff’s counsel, the Downs Law Group.16 Plaintiff argues his counsel
needs additional time to review the documents produced by CTEH because the
“production was . . . extremely voluminous.”17 Second, Exponent has produced some,
though not all, documents in response to a July 5, 2022 subpoena issued by a different
DWH plaintiff, though represented by Plaintiff’s counsel.18 Plaintiff contends the first
volume of Exponent’s rolling production was not received until November 3, 2022.19
Third, there is outstanding production of documents responsive to a subpoena issued on
January 14, 2022, to Battelle by a different DWH plaintiff, though represented by
Plaintiff’s counsel.20 “Plaintiff’s counsel [represents it] has only received the first of three
rounds of production from Batelle.” Fourth, there is outstanding production of
documents responsive to a subpoena issued on January 4, 2022, to Nalco/ChampionX by
a different DWH plaintiff, though represented by Plaintiff’s counsel.21 Plaintiff’s counsel
represents production by Nalco/ChampionX is currently pending resolution of a motion
to quash in the Southern District of Texas.22 The motion to quash was filed on January 5,
2022, and has not been resolved. The underlying case in which the subpoena was issued

R. Doc. 109-1 at pp. 7, 15.
Id. at p. 17.
18 Id. at p. 14 n.40..
19 Id. at p. 7 n.26, p. 20.
20 Id. at p. 21.
21 Id. at p. 19.
22 Id. at p. 19 n.52.
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is Nguyen v. BP, a BELO case before this Court.23 The Court finds these discovery delays
sufficiently explain why Plaintiff cannot reasonably comply with the present scheduling
order. This factor weighs in favor of granting the requested extension.
Second, in terms of the importance of the outstanding discovery, Plaintiff makes
several arguments in support. The core of Plaintiff’s argument, though, is that
outstanding production of documents by Defendants’ contractors, Center for Toxicology
and

Environmental

Health

(“CTEH”),

Exponent,

Inc.,

Battelle

Labs,

and

Nalco/ChampionX, in response to subpoenas issued in January and July of this year by
Plaintiff’s counsel in other DWH cases, once produced, may aid this Court in resolving
future Daubert and dispositive motions.24 Specifically, Plaintiff theorizes “BP controlled
laboratory data and BP . . . funded scientific literature minimizing deleterious effects of
the BP Spill[, literature that is] irretrievably tainted by funding bias and data unreliability
because of financial relationships between the BP Defendants and various entities that
produced scientific evidence.”25 Proving this theory, Plaintiff argues, will help to shore up
deficiencies courts have identified with B3 plaintiffs’ causation evidence.26 The Court
finds many of the issues raised by the parties about the merits of Plaintiff’s theory of the
case would be more appropriately addressed at the Daubert or dispositive motion stage
of litigation. Accordingly, this factor neither weighs in favor of nor against granting the
requested extension.

See 19-2092 (Morgan, J.). Judge Ellison of the Southern District of Texas denied a motion to transfer the
discovery dispute to this Court. See R. Doc. 20 in 22-07 (S.D. TX., 6/10/2022).
24 R. Doc. 119-1 at pp. 6-7. To be clear, these contractors are not parties to this case.
25 R. Doc. 119-1 at pp. 4-5, 7.
26 Id. For deficiencies, see generally Harrison v. BP Exploration & Production, Inc., et al., 2022 WL
2390733 (E.D. La. 7/1/2022) (Morgan, J.).
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Considering the third and fourth factors—whether modifying the scheduling order
would prejudice the nonmovant and whether a continuance could cure the prejudice—
other federal district courts have granted similar motions filed by Plaintiff’s counsel in
other DWH cases, thereby finding any resulting prejudice to Defendants insubstantial.27
This Court agrees. Certainly, in most cases, modifying a scheduling order will prejudice
the non-moving party because the case drags on a little longer. However, in light of the
third-party discovery delays in, and the context of, this case, the kind of generic prejudice
pointed out by Defendants is unconvincing. Plaintiff timely moved to amend the
scheduling order in light of discovery delays well in advance of the discovery deadline.
Moreover, the requested extension will not surprise Defendants, who are acutely aware
of the outstanding discovery in this case.28 This factor weighs in favor of granting the
requested extension.
At bottom, the Court agrees with Plaintiff that these DWH cases involve
complicated scientific and legal questions.29 Given Plaintiff’s counsel demonstration of
diligence and good cause for an extension, the scheduling order should be amended to
allow Plaintiff an opportunity to obtain the discovery he contends is important to proving
his case. Be that as it may, all parties are forewarned that, “[a]bsent extraordinary
circumstances, no more extensions will be granted.” 30

See, e.g., Guerrero v. BP Exploration & Production, Inc., et al., Civ. A. 20-263, R. Doc. 76 at p. 2 (M.D.
Fl. 10/7/2022) (Bucklew, J.). The court in Guerrero was faced with similar arguments from BP that
Plaintiff’s issuance of subpoenas in January and July of 2022 indicates a lack of diligence. Ultimately, the
Court did not find those arguments convincing. Neither does this Court. Issuing subpoenas in January
2022, nearly a year before the close of discovery, is not clearly indicative of a lack of diligence. The same
holds true for the subpoena issued in July.
28 See Carollo v. ACE American Insurance Co., 2019 WL 4038602 (E.D. La. 8/27/2019) (Vitter, J.) (finding
potential surprise to the non-moving party a relevant consideration).
29 R. Doc. 109-1 at p. 9.
30 Guerrero, Civ. A. 20-263, R. Doc. 76 at p. 2.
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CONCLUSION
IT IS ORDERED that Plaintiff’s Motion to Amend the Amended Scheduling
Order31 is GRANTED.
IT IS FURTHER ORDERED that the Amended Scheduling Order is hereby
VACATED.32 The Court’s case manager will hold a conference with the parties to
produce an amended scheduling order that extends all unexpired deadlines by ninety
days.
New Orleans, Louisiana, this 13th day of December, 2022.

________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

31
32

R. Doc. 109.
R. Doc. 77.

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