Brumfield v. BP Exploration & Production, Inc. et al
Filing
75
ORDER AND REASONS denying 71 Motion for Reconsideration filed by Herbert Lee Brumfield. Signed by Judge Sarah S. Vance on 05/10/2023. (cs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARAY RASHON BLAND
CIVIL ACTION
VERSUS
NO. 17-3049
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
HERBERT LEE BRUMFIELD
CIVIL ACTION
VERSUS
NO. 17-3107
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (1)
ERIC DEWAYNE ELLZEY
CIVIL ACTION
VERSUS
NO. 17-3163
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (1)
DAPHNE NORRIS
CIVIL ACTION
VERSUS
NO. 17-4565
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
1
ORDER AND REASONS
Before the Court are motions for reconsideration filed by each of the abovecaptioned plaintiffs. 1 Defendants BP Exploration & Production, Inc., BP America
Production Company, and BP p.l.c. (collectively, the “BP parties”) oppose
plaintiffs’ motions. 2
For the following reasons, the Court denies plaintiffs’
motions for reconsideration.
I.
BACKGROUND
The plaintiffs in the above-captioned cases each filed lawsuits against
defendants based on their alleged exposure to toxic chemicals following the
Deepwater Horizon oil spill in the Gulf of Mexico. 3 Each plaintiff was allegedly
1
2
3
Bland, No. 17-3049, R. Doc. 74; Brumfield, No. 17-3107, R. Doc. 71; Ellzey,
No. 17-3163, R. Doc. 59; Norris, No. 17-4565, R. Doc. 66.
The remaining defendants, Halliburton Energy Services, Inc., Transocean
Deepwater, Inc., Transocean Holdings, LLC, and Transocean Offshore
Deepwater Drilling, Inc. join the BP parties’ opposition to plaintiffs’ motions
for reconsideration. Bland, No. 17-3049, R. Doc. 77 at 1 n.1; Brumfield, No.
17-3107, 74 at 1 n.1; Ellzey, No. 17-3163, R. Doc. 62 at 1 n.1; Norris, No. 174565, R. Doc. 66 at 1 n.1.
Bland, No. 17-3049, R. Doc. 1; Brumfield, No. 17-3107, R. Doc. 1; Ellzey, No.
17-3163, R. Doc. 1; Norris, No. 17-4565, R. Doc. 1.
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involved in cleanup or recovery work after the oil spill, and each contends that his
or her resulting exposure to crude oil and dispersants caused a litany of health
conditions.4 Plaintiffs brought claims for general maritime negligence, negligence
per se, and gross negligence against defendants. 5
In each case, the plaintiffs submitted an expert report from Dr. Jerald Cook,
an occupational and environmental physician, to demonstrate that exposure to
crude oil, weathered oil, and dispersants can cause the symptoms they allege in
their complaints. 6 Dr. Cook was plaintiffs’ only expert on the issue of general
causation. Id. This Court excluded the testimony of Dr. Cook as unreliable and
unhelpful under Fed. R. Civ. P. 702 because, among other issues, Dr. Cook did not
identify what level of exposure to the specific chemicals to which plaintiffs were
exposed is necessary to be capable of causing the specific conditions plaintiffs
complained of. 7 The Court thus concluded that Dr. Cook “lacks sufficient facts to
provide a reliable opinion on general causation.”8 Because expert testimony is
required to establish general causation in toxic tort cases, and plaintiffs’ sole expert
4
5
6
7
8
Id.
Id.
Bland, No. 17-3049, R. Doc. 71; Brumfield, No. 17-3107, R. Doc. 68; Ellzey,
No. 17-3163, R. Doc. 56; Norris, No. 17-4565, R. Doc. 64.
See Bland, No. 17-3049, R. Doc. 71 at 21; Brumfield, No. 17-3107, R. Doc.
68; Ellzey, No. 17-3163, R. Doc. 56; Norris, No. 17-4565, R. Doc. 64.
Id.
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witness on the issue of general causation was excluded, this Court granted
defendants’ motions for summary judgment in each case. 9
Plaintiffs now move under Rule 59(e) for reconsideration of the Court’s
orders excluding Dr. Cook’s testimony and granting defendants’ motions for
summary judgment. 10
Each of plaintiffs’ motions is substantively identical.
Plaintiffs contend that because defendants did not timely produce an adequate
30(b)(6) deponent, as Magistrate Judge Michael North determined in the TorresLugo case, they have only recently been able to depose witnesses on the issue of
the BP parties’ alleged failure to conduct biomonitoring.11 They argue that this
evidence goes “to the heart of the general causation issue,” so they should be able
to respond to defendants’ summary judgment motion with the benefit of this new
deposition testimony.12
In response, the BP parties contend that plaintiffs present no new evidence
or argument; rather, they simply rehash the arguments they presented in response
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10
11
12
Id.
Bland, No. 17-3049, R. Doc. 74; Brumfield, No. 17-3107, R. Doc. 71; Ellzey,
No. 17-3163, R. Doc. 59; Norris, No. 17-4565, R. Doc. 66.
Bland, No. 17-3049, R. Doc. 74-1 at 1; Brumfield, No. 17-3107, R. Doc. 71-1
at 1; Ellzey, No. 17-3163, R. Doc. 59-1 at 1; Norris, No. 17-4565, R. Doc. 66-1
at 1.
Bland, No. 17-3049, R. Doc. 74-1 at 3; Brumfield, No. 17-3107, R. Doc. 71-1
at 3; Ellzey, No. 17-3163, R. Doc. 59-1 at 3; Norris, No. 17-4565, R. Doc. 661 at 3.
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to defendants’ motions in limine in contravention of Rule 59(e).13 They further
argue that the issue of discovery sanctions is irrelevant to general causation. 14
The Court considers the motions below.
II.
LEGAL STANDARD
A district court has “considerable discretion” under Rule 59(e).
See
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). That said,
“[r]econsideration of a judgment after its entry is an extraordinary remedy that
should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004). “The Court must strike the proper balance between two competing
imperatives: (1) finality, and (2) the need to render just decisions on the basis of
all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.
A motion to reconsider under Rule 59(e) “must clearly establish either a
manifest error of law or fact or must present newly discovered evidence.” Matter
of Life Partner Holdings, Inc., 926 F.3d 103, 128 (5th Cir. 2019) (quoting Schiller
v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)). Courts have held
that the moving party must show that the motion is necessary based on at least one
13
14
Bland, No. 17-3049, R. Doc. 77 at 1; Brumfield, No. 17-3107, 74 at 1; Ellzey,
No. 17-3163, R. Doc. 62 at 1; Norris, No. 17-4565, R. Doc. 66 at 1.
Id.
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of the following criteria: (1) “correct[ing] manifest errors of law or fact upon which
the judgment is based;” (2) “present[ing] newly discovered or previously
unavailable
evidence;”
(3)
“prevent[ing]
manifest
injustice,”
and
(4)
accommodating “an intervening change in the controlling law.” Fields v. Pool
Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998).
III. DISCUSSION
Plaintiffs contend they are entitled to reconsideration of this Court’s orders
excluding the testimony of Dr. Cook and granting defendants’ motions for
summary judgment because defendants have improperly blocked plaintiffs’
discovery on the issue of defendants’ biomonitoring efforts after the Deepwater
Horizon oil spill. 15 Plaintiffs already advanced this argument in their motions
seeking a continuance of the summary-judgment motions’ submission dates, as
well as Bland’s and Brumfield’s motions seeking admission of Dr. Cook’s testimony
as a sanction against BP for alleged spoliation. 16 This Court nonetheless granted
15
16
Bland, No. 17-3049, R. Doc. 74-1 at 1-3; Brumfield, No. 17-3107, R. Doc. 711 at 1-3; Ellzey, No. 17-3163, R. Doc. 59-1 at 1-3; Norris, No. 17-4565, R. Doc.
66-1 at 1-3.
Bland, No. 17-3049, R. Docs. 47 & 59; Brumfield, No. 17-3107, R. Doc. 47 &
58; Ellzey, No. 17-3163, R. Doc. 47; Norris, No. 17-4565, R. Doc. 47.
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defendants’ summary-judgment motions in the face of plaintiffs’ arguments.
Plaintiffs’ “recitation of duplicative and meritless arguments that have already
been exhaustively considered does not entitle [them] to a second bite at the apple”
through reconsideration under Rule 59(e). Vesoulis v. Reshape Lifesciences, Inc.,
No. 19-1795, 2021 WL 2267676, at *1 (E.D. La. June 3, 2021).
As this Court has previously explained, the issues involved in the TorresLugo sanctions motion are not outcome determinative of defendants’ motions in
limine on the issue of admissibility of Dr. Cook’s report, or on the merits of
defendants’ summary-judgment motions. See, e.g., Nestle v. BP Expl. & Prod.,
Inc., No. CV 17-4463, 2022 WL 6550095, at *1 (E.D. La. Sept. 12, 2022) (noting
that “[t]he additional discovery plaintiff seeks would not produce information
germane to the motions at issue”). Plaintiffs do not contend that the deposition
testimony taken pursuant to the Torres-Lugo sanctions, which involves what BP
did not do after the oil spill, would supply the missing dose-response relationship
or cure the lack of fit between Dr. Cook’s opinion and the facts of their cases, which
were the bases for this Court’s decisions. For that same reason, plaintiffs’ citation
to the Fifth Circuit’s Bailey decision is unavailing, as that court held that a plaintiff
seeking to delay adjudication of a summary-judgment motion “must demonstrate
that additional discovery will create a genuine issue of material fact.” Bailey v.
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KS Mgmt. Servs., L.L.C., 35 F.4th 397, 401 (5th Cir. 2022) (citing Smith v. Reg’l
Transit Auth., 827 F.3d 412, 422–23 (5th Cir. 2016)). Plaintiffs have made no
such demonstration here, either in their motions to continue or in the present
motions for reconsideration.
Other sections of this Court have made similar observations, noting that “the
point of an expert on general causation is to explain whether the exposure to a
particular chemical is capable generally of causing a certain health issue in the
general population,” and that “is not dependent on data from the particular
incident at issue.” Carpenter v. BP Expl. & Prod. Inc., No. 17-3645, 2022 WL
2757416, at *1 n.1, 6 (E.D. La. July 14, 2022) (Ashe, J.) (“BP’s alleged failure to
monitor the oil-spill workers is irrelevant to the resolution of these motions.”); see
also Beverly v. BP Expl. & Prod. Inc., No. 17-3045, 2022 WL 2986279, at *4 (E.D.
La. July 28, 2022) (Barbier, J.), reconsideration denied, No. 17-3045, 2022 WL
4242515 (E.D. La. Sept. 14, 2022) (“[T]his [general causation] inquiry does not
depend upon environmental sampling data taken as part of the incident.”); Reed
v. BP Expl. & Prod. Inc., No. 17-3603, R. Doc. 66 at 2 (E.D. La. July 28, 2022)
(Milazzo, J.) (“[T]he Court finds that the outcome of the additional discovery in
Torres-Lugo does not affect the issues presented in Defendants’ Motions.”).
Plaintiffs do not claim to have discovered new evidence, nor do they point to
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intervening changes in controlling law. They further fail to establish that this
Court’s orders work a manifest injustice.
Their erroneous assertion that the
subsequently acquired discovery implicates “questions that go to the heart of the
general causation issue” is insufficient to establish that they are entitled to the
“extraordinary remedy” of reconsideration under Rule 59(e). Templet, 367 F.3d
at 479.
IV.
CONCLUSION
For the foregoing reasons, plaintiffs’ motions for reconsideration are
DENIED.
New Orleans, Louisiana, this 10th
__ day of May, 2023.
_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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