Cotton v. BP Exploration & Production, Inc. et al
Filing
82
ORDER AND REASONS - IT IS ORDERED that Plaintiff's Motion to Reconsider its Order granting Defendants' Motion in Limine and Motion for Summary Judgment is DENIED, as set forth herein. Signed by Judge Jane Triche Milazzo on 11/4/2022. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CILLO COTTON, JR.
CIVIL ACTION
VERSUS
NO. 17-3132
BP EXPLORATION & PRODUCTION,
INC. ET AL.
SECTION: H(4)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Reconsider its Order Granting
Defendants’ Motion in Limine and Motion for Summary Judgment (Doc. 79).
For the following reasons, this Motion is DENIED.
BACKGROUND
This case is one among the “B3 bundle” of cases arising out of the
Deepwater Horizon oil spill. 1 This bundle comprises “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 These cases were originally part of a
multidistrict litigation (“MDL”) pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement Agreement, but
the B3 plaintiffs either opted out of this agreement or were excluded from its
class definition. 3 Subsequently, Judge Barbier severed the B3 cases from the
See In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, No. 10-md-02179, R. Doc. 26924 at 1 (E.D. La. Feb. 23, 2021).
2 Id.
3 Id. at 2 n.3.
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MDL to be reallocated among the judges of this Court. 4 This B3 case was
eventually reassigned to Section H. 5
Plaintiff Cillo Cotton, Jr. alleged continuous exposure to oil and
dispersants starting in May 2010 during his work as a boat captain and
recovery technician engaged in cleanup efforts along the Gulf coast. 6 He
claimed to suffer from a host of medical conditions because of the exposure,
including headaches, back pain, acne, boils, dryness, inflammation, itching,
lesions, sinus pain, congestion, dizziness, lethargy, tremors, nausea, and
more. 7
Like other B3 plaintiffs, Plaintiff 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 that he alleged in his complaint. 8 Dr. Cook was Plaintiff’s only
expert on the issue of general causation. 9 This Court excluded the testimony of
Dr. Cook as unreliable and unhelpful under Federal Rule of Evidence 702.10
Because expert testimony is required to establish general causation in a toxic
tort case, and Plaintiff’s sole expert witness on the issue of general causation
was excluded, this Court granted Defendants’ motion for summary judgment
and dismissed Plaintiff’s claims with prejudice. 11
Now before the Court is Plaintiff’s Motion for Reconsideration under
Federal Rule of Civil Procedure 59(e). Plaintiff argues that the Court’s order
granting the Defendants’ Motion in Limine and Motion for Summary
Id. at 7–8.
See Docs. 6, 50.
6 See Doc. 56-2 at 15.
7 See Doc. 1-1 at 5; Doc. 56-6.
8 See Doc. 56-3.
9 See Doc. 51 at 1.
10 Doc. 76.
11 Id.
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Judgment should be reconsidered in light of the ongoing dispute in another B3
case regarding BP’s decision not to collect dermal and biometric data from
cleanup workers. 12 Defendants BP Exploration & Production, Inc.; BP America
Production Company; BP p.l.c.; Transocean Holdings, LLC; Transocean
Deepwater, Inc.; Transocean Offshore Deepwater Drilling, Inc.; and
Halliburton Energy Services, Inc. (collectively, the “BP parties”) oppose. 13
LEGAL STANDARD
A Rule 59(e) motion to alter or amend a judgment “serve[s] the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present
newly discovered evidence.” 14 “Such a motion is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered
or raised before the entry of judgment.” 15 Federal Rule of Civil Procedure 59(e)
provides that “[a] motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.” The Rule does not, however,
provide any standard for courts to use when determining when timely motions
should be granted. 16 Courts have held that the moving party must show that
the motion is necessary based on at least one 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
Doc. 79. Torres-Lugo v. BP Expl. & Prod. Inc., No. 20-210 (E.D. La. June 3, 2022).
Doc. 80.
14 Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations omitted).
15 Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) (quoting Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004)).
16 FED. R. CIV. P. 59.
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change in the controlling law.” 17 Rule 59(e) relief represents “an extraordinary
remedy that should be used sparingly.” 18
LEGAL ANALYSIS
Plaintiff moves this Court for reconsideration under Rule 59(e) of its
order excluding Dr. Cook’s testimony and granting Defendants’ motion for
summary judgment. 19 In support of his Motion, Plaintiff notes that another
section of this district has sanctioned Defendants for failing to produce a proper
30(b)(6) corporate witness to testify to the issue of biological monitoring.
Plaintiff argues that “summary judgment is not appropriate where it has now
been ruled that BP failed to produce a qualified corporate witness to respond
to questions that go to the heart of the general causation issue.” 20 Plaintiff
argues that upon reconsideration, this Court should “deny the motions in
limine and motions for summary judgment [] until Plaintiff can obtain a proper
30(b)(6) deposition of a qualified corporate witness.” 21 Defendants respond that
Plaintiff is rehashing arguments irrelevant to this suit and that he presents
no arguments unique to this case. 22
Plaintiff does not identify which of the four Rule 59(e) criteria he believes
are satisfied here. Plaintiff’s argument regarding the imposition of discovery
sanctions in another B3 case is irrelevant to the fact that Dr. Cook’s opinion is
unhelpful and unreliable. This Court, as well as others in this district,
determined that Dr. Cook’s expert report was inadmissible and these decisions
did not depend on the dermal and biometric data that BP allegedly failed to
Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998).
Id.
19 Doc. 79.
20 Doc. 79-1 at 3.
21 Id.
22 Doc. 80 at 1.
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collect. 23 As for Plaintiff’s anticipatory spoliation allegation, “even assuming
that BP had an affirmative duty to collect biomonitoring and dermal data from
cleanup workers, this lack of information is not what renders Dr. Cook’s expert
report” inadmissible. 24
Considering the above, Plaintiff has not presented any justification for
alteration or amendment pursuant to Rule 59(e). Moreover, this Court is not
alone in this decision, as several other courts in this district have also denied
reconsideration on the same grounds. 25
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration is
DENIED.
New Orleans, Louisiana this 4th day of November, 2022.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
Burns v. BP Expl. & Prod. Inc., No. 17-3117, 2022 WL 2952993, at *1 n.5 (E.D. La. July 25,
2022) (stating that “BP’s alleged failure to monitor the oil-spill workers is irrelevant to the
resolution of these motions”); Keller v. BP Expl. & Prod. Inc., No. 13-1018, 2022 WL 2664738
(E.D. La. Aug. 25, 2022) (stating that “the Torres-Lugo sanctions are irrelevant to defendants’
motions in limine and for summary judgment.”).
24 Barkley v. BP Expl. & Prod., Inc., No. 13-995, 2022 WL 3715438 (E.D. La. Aug. 5, 2022).
25 Naples v. BP Expl. & Prod. Inc., No. 12-2564, 2022 WL 5165046, at *1 (E.D. La. Sept. 28,
2022) (stating that “the ongoing discovery dispute in a different B3 case regarding BP's Rule
30(b)(6) witness is irrelevant to either the Motions in Limine to Exclude Dr. Jerald Cook or
the Motions for Summary Judgment” in denying Plaintiff’s motion for reconsideration);
Dawkins v. BP Expl. & Prod. Ind., No. 17-3533, 2022 WL 4355818 (E.D. La. Sept. 20, 2022)
(stating that the “bare assertion that the pending 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)”); Milsap v. BP Expl. & Prod.
Inc., No. 17-4451, 2022 WL 6743269 (E.D. La. Oct. 11, 2022); Keller, 2022 WL 2664738.
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