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

Filing 75

ORDER AND REASONS denying 71 Motion for Reconsideration filed by Mark A. Francisco. Signed by Judge Sarah S. Vance on 05/12/2023. (cs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARK A. FRANCISCO

CIVIL ACTION

VERSUS

NO. 17-3212

BP EXPLORATION &
(1) PRODUCTION, INC., ET AL.

SECTION R

ROBERT ANTHONY FRANKS

CIVIL ACTION

VERSUS

NO. 17-3216

BP EXPLORATION &
(4) PRODUCTION, INC., ET AL.

SECTION R

CHARLIE DAVID HODGE

CIVIL ACTION

VERSUS

NO. 17-3282

BP EXPLORATION &
(1) PRODUCTION, INC., ET AL.

SECTION R

ORDER AND REASONS
Before the Court are motions for reconsideration filed by each of the
above-captioned plaintiffs. 1 Defendants BP Exploration & Production, Inc.,
BP America Production Company, and BP p.l.c., (collectively, the “BP

1

Francisco, No. 17-3212, R. Doc. 71; Franks, No. 17-3216, R. Doc. 63;
Hodge, No. 17-3282, R. Doc. 65.
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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 involved in cleanup or recovery work after the oil spill, and each
contends that his 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
2

3
4
5

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. Francisco, No.
17-3212, R. Doc. 73 at 1 n.1; Franks, No. 17-3216, R. Doc. 66 at 1 n.1;
Hodge, No. 17-3282, R. Doc. 68 at 1 n.1.
Francisco, No. 17-3212, R. Doc. 1; Franks, No. 17-3216, R. Doc. 1;
Hodge, No. 17-3282, R. Doc. 1.
Id.
Id.
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symptoms they allege in their complaints. 6 Dr. Cook was plaintiffs’ only
expert on the issue of general causation. This Court excluded the testimony
of Dr. Cook as unreliable and unhelpful under Fed. R. Evid. 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 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 Federal Rule of Civil Procedure 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’

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7
8
9
10

Francisco, No. 17-3212, R. Doc. 71; Franks, No. 17-3216, R. Doc. 63;
Hodge, No. 17-3282, R. Doc. 65.
See Francisco, No. 17-3212, R. Doc. 69; Franks, No. 17-3216, R. Doc.
61; Hodge, No. 17-3282, R. Doc. 63.
Id.
Id.
Francisco, No. 17-3212, R. Doc. 71; Franks, No. 17-3216, R. Doc. 63;
Hodge, No. 17-3282, R. Doc. 65.
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motions is substantively identical.

In short, plaintiffs contend that the

Court erred in its analysis of whether Dr. Cook’s testimony constitutes
admissible evidence on general causation and as a result, fact issues
remained that rendered summary judgment inappropriate. 11
In response, the BP parties contend that plaintiffs present no new
evidence or argument; rather, they simply rehash the arguments they
presented in response to defendants’ motions in limine in contravention of
Rule 59(e).12
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
11
12

Id.
Francisco, No. 17-3212, R. Doc. 73 at 1; Franks, No. 17-3216, R. Doc.
66 at 1; Hodge, No. 17-3282, R. Doc. 68 at 1.
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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 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 the Court erred in holding that Dr.
Cook must identify a harmful level of exposure to particular chemicals that
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cause the conditions that plaintiffs allegedly experienced. 13 Plaintiffs assert
that Dr. Cook’s testimony should have been admitted, and defendants’
summary-judgment motions denied, because: (1) BP had a duty to protect
the cleanup workers; (2) BP violated that duty by failing to conduct
biomonitoring; (3) BP’s breach of its duty to conduct biomonitoring explains
why there is inadequate data to provide the information that the Court held
was required of proposed general causation experts in its Orders and
Reasons excluding Dr. Cook’s testimony; and (4) the GuLF study represents
the “state of the art,” and it is therefore a reliable basis for Dr. Cook’s
opinions.14
Plaintiffs have already advanced these arguments, or nearly identical
ones, in their oppositions to BP’s summary-judgment and Daubert motions,
as well as in their motions seeking admission of Dr. Cook’s testimony as a
sanction against BP for alleged spoliation. 15 This Court rejected plaintiffs’
arguments and granted defendants’ Daubert and summary-judgment
motions. 16 Plaintiffs present no valid reason for the Court to reconsider
13
14
15
16

Francisco, No. 17-3212, R. Doc. 71 at 1-4; Franks, No. 17-3216, R. Doc.
63 at 1-4; Hodge, No. 17-3282, R. Doc. 65 at 1-4.
Id.
See Francisco, No. 17-3212, R. Docs. 58, 59 & 60; Franks, No. 17-3216,
R. Docs. 48, 49 & 50; Hodge, No. 17-3282, R. Docs. 51, 52 & 53.
See Francisco, No. 17-3212, R. Doc. 69; Franks, No. 17-3216, R. Doc.
6

their previously rejected contentions, which are ultimately based on the
“faulty premise that BP was obligated to develop evidence in anticipation of
litigation.” Reed v. BP Expl. & Prod., Inc., No. 17-4174, 2023 WL 3159403,
at *10 (E.D. La. Apr. 28, 2023). 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).
Further, plaintiffs’ motions do not mention any of Rule 59(e) critera.
Plaintiffs do not claim to have discovered new evidence; nor do they point to
intervening changes in controlling law. They likewise fail to establish that
this Court’s orders work a manifest injustice.

They simply rehash

previously rejected arguments concerning BP’s purported duty to conduct
biomonitoring.

Their erroneous assertion the Court was incorrect in

requiring a general causation expert to identify a harmful level of exposure
to specific chemicals that can cause the conditions plaintiffs complain of is
insufficient to establish that they are entitled to the “extraordinary remedy”
of reconsideration under Rule 59(e). Templet, 367 F.3d at 479.

61; Hodge, No. 17-3282, R. Doc. 63.
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IV.

CONCLUSION
For the foregoing reasons, plaintiffs’ motions for reconsideration are

DENIED.

12th day of May, 2023.
New Orleans, Louisiana, this _____

_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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