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

Filing 87

ORDER AND REASONS: IT IS ORDERED that the 84 Motion for Reconsideration is DENIED. IT IS FURTHER ORDERED that Plaintiff's request that this Court delay ruling on the motion pending Fifth Circuit argument is DENIED. Signed by Judge Susie Morgan on 7/6/2023. (pp)

Case 2:17-cv-03017-SM-JVM Document 87 Filed 07/06/23 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES C. ALEXANDER,
Plaintiff

CIVIL ACTION

VERSUS

NO. 17-3017

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

SECTION: “E” (1)

ORDER AND REASONS
Before the Court is Plaintiff James C. Alexander’s Motion to Reconsider Order
Granting Summary Judgment to Defendants (“Motion for Reconsideration”).1 Because
Plaintiff has not shown that reconsideration of the Court’s prior summary judgment order
is needed to correct a manifest error of law or fact, account for newly discovered evidence,
avoid manifest injustice, or comply with an intervening change in controlling law, the
motion is DENIED.
BACKGROUND
This case is a “B3” case arising out of the 2010 Deepwater Horizon oil spill in the
Gulf of Mexico. B3 cases involve “claims for personal injury and wrongful death due to
exposure to oil and/or other chemicals used during the oil spill response (e.g.,
dispersant).”2 Only the relevant portions of the lengthy procedural background are
recounted here.
On May 25, 2023, the Court issued an order3 granting Defendant’s’ motion in
limine to exclude the causation testimony of Plaintiff’s expert, Dr. Jerald Cook, and

R. Doc. 84.
In re Oil Spill by Oil Rig “Deepwater Horizon” in Gulf of Mexico, on Apr. 20, 2010, No. MDL 2179, 2021
WL 6053613, at *10 (E.D. La. Apr. 1, 2021) (Barbier, J.).
3 R. Doc. 81.
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granting summary judgment4 in favor of Defendants.
On June 22, 2023, Plaintiff filed this Motion for Reconsideration, in which he also
requests the Court “delay in ruling on this Motion until” the United States Court of
Appeals for the Fifth Circuit issues its opinion in a similarly-situated case.5 Because no
grounds for reconsideration exist, the Court will deny the motion and the request to delay
ruling pending the appeal in the Fifth Circuit.
STANDARD
Though the Federal Rules of Civil Procedure do not expressly allow motions for
reconsideration of an order,6 the Fifth Circuit has consistently recognized that parties may
challenge a judgment or order under Federal Rules of Civil Procedure 59(e).7 However, a
Rule 59(e) motion to alter or amend an order is permitted only in rare circumstances that
justify the “extraordinary remedy,” typically “to correct manifest errors of law or fact or
to present newly discovered evidence.”8
Such motions may not relitigate or “rehash[] evidence, legal theories, or arguments
that could have been offered or raised” prior to “entry of judgment.”9 Nor should the
motions be used to “re-litigate prior matters that . . . simply have been resolved to the
movant’s dissatisfaction.”10 Instead, courts in this district “have generally considered four
factors” when ruling on a Rule 59(e) motion: “(1) the motion is necessary to correct a
manifest error of law or fact upon which the judgment is based”; “(2) the movant presents

R. Doc. 82.
R. Doc. 84 at p.2.
6 Bass v. U.S. Dep’t of Agric., 211 F.3d 959, 962 (5th Cir. 2000).
7 See S. Snow Mfg. Co, Inc. v. Snowizard Holdings, Inc., 921 F. Supp. 2d 548, 563–64 (E.D. La. 2013)
(collecting cases).
8 Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (quoting Waltman v. Int'l Paper Co., 875
F.2d 468, 473 (5th Cir.1989)).
9 Id. at 478-79; S. Snow, 921 F. Supp. 2d at 565.
10 See Voisin v. Tetra Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).
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newly discovered or previously unavailable evidence”; “(3) the motion is necessary in
order to prevent manifest injustice”; “(4) the motion is justified by an intervening change
in controlling law.”11
ANALYSIS
Plaintiff urges the Court to reconsider its summary judgment order “on the basis
that it is inequitable and improper to exclude [the] medical causation expert testimony
[of Dr. Jerald Cook] proffered by the Plaintiff” and grant summary judgment when the
expert testimony of Dr. Linda Birnbaum,12 Plaintiff argues, “creates material issues of
fact.”13 Plaintiff asks the Court to “re-visit” its summary judgment order, “amend the
findings,” and “deny the motion for summary judgment.”14
Plaintiff does not specify which of the four factors justifies reconsideration in this
case, and Plaintiff’s memorandum does not clearly advance an argument in support of
any of the factors. First, nowhere does Plaintiff identify a “manifest error of law or fact.”15
The Motion for Reconsideration simply argues the Court “should” reverse its prior
decision.16 Second, Plaintiff’s motion relies on evidence considered by the Court prior to
its ruling,17 not evidence that is “newly discovered or [was] previously unavailable.”18
Plaintiff’s Motion for Reconsideration relies on Dr. Birnbaum’s affidavit, which was
attached as an exhibit to Plaintiff’s opposition to Defendants’ motion to exclude the
causation testimony of Plaintiff’s expert, Dr. Jerald Cook,19 and already has been

S. Snow, 921 F. Supp. 2d at 565.
Attached to the instant motion as R. Doc. 84-2, but previously introduced on the record at R. Doc. 72-1.
13 R. Doc. 84 at p. 1.
14 Id.
15 S. Snow, 921 F. Supp. 2d at 565.
16 R. Doc. 84 at p. 1.
17 See R. Doc. 84-1 at pp. 1–3.
18 S. Snow, 921 F. Supp. 2d at 565.
19 See R. Doc. 72-1.
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considered by the Court. Third, the motion makes no substantive argument that the prior
summary judgment order resulted in “manifest injustice;”20 the motion simply refers to
the Court’s decision to exclude Plaintiff’s expert testimony as “inequitable.”21 Lastly,
Plaintiff’s motion does not point to any “intervening change in controlling law.”22
Instead, by its own terms, Plaintiff’s motion “rehash[es] evidence, legal theories,
or arguments that “were raised before the entry of judgment.”23 Plaintiff’s Motion for
Reconsideration “incorporates”24 two prior memoranda: Plaintiff’s opposition to
Defendants’ motion in limine to exclude expert testimony and motion for summary
judgment25 and Plaintiff’s supplemental memorandum in opposition to Defendants’
Daubert motion concerning the testimony of Dr. Cook.26
Plaintiff does not supplement these filings with newly discovered evidence to
support the instant Motion for Reconsideration. Rather, Plaintiff urges arguments that
already have been made, citing evidence already in the record27 and “re-litigat[ing] prior
matters that . . . simply have been resolved to [Plaintiff’s] dissatisfaction.”28 As the Court
made clear in similar B3 cases, the expert testimony of Dr. Cook was properly excluded;
with that evidence excluded, “Plaintiff lack[ed] general causation testimony,” and
summary judgment was appropriate upon the Defendants’ motion.29
In sum, the Plaintiff’s Motion for Reconsideration relies on arguments courts

Id.
R. Doc. 84 at p. 1.
22 S. Snow, 921 F. Supp. 2d at 565.
23 Templet, 367 F.3d at 479.
24 R. Doc. 84 at pp. 1–2.
25 R. Doc. 71.
26 R. Doc. 72.
27 See, e.g., R. Doc. 84-1 at p. 2.
28 Voisin, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).
29 See, e.g., Bruton v. BP Exploration & Production, Inc., et al., Civ. A. 17-3110 at R. Doc. 107 (E.D. La.
11/30/2022) (Morgan, J.).
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disfavor when considering Rule 59 motions for reconsideration and does not show how
any of the factors favoring reconsideration are present. Accordingly;
IT IS ORDERED that the Motion for Reconsideration is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s request that this Court delay ruling
on the motion pending Fifth Circuit argument is DENIED.
New Orleans, Louisiana, this 6th day of July, 2023.
____________________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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