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

Filing 76

ORDER AND REASONS - IT IS ORDERED that Plaintiff's 73 Motion for Reconsideration is DENIED, as set forth herein. Signed by Judge Jane Triche Milazzo on 11/10/2022. (sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES HARRIS

CIVIL ACTION

VERSUS

NO. 17-3265

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
MICHAEL LEARN

CIVIL ACTION

VERSUS

NO. 17-3321 c/w 17-3322

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
Applies to 17-3322
____________________________________________________________________
KHALED OMAR ABDELFATTAH

CIVIL ACTION

VERSUS

NO. 17-3443

BP EXPLORATION &
PRODUCTION, INC. ET AL.

SECTION: “H”

____________________________________________________________________
CHESTER C. REED

CIVIL ACTION

VERSUS

NO. 17-3603

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________

1

EDWARD CHARLES COLBERT

CIVIL ACTION

VERSUS

NO. 17-3647

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
ORDER AND REASONS
Before the Court are nearly identical motions submitted in the five
above-captioned cases. Plaintiffs Charles Harris, Michael Learn, Khaled
Abdelfattah, Chester Reed, and Edward Colbert have each filed a Motion for
Reconsideration of the Order granting 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.’s (“collectively BP”)
Motions in Limine and Motions for Summary Judgment Due to Plaintiff’s
Inability to Prove Medical Causation. For the following reasons, the Motions
are DENIED.
BACKGROUND
These cases are 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
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.
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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
MDL to be reallocated among the judges of this Court. 4 These B3 cases were
eventually reassigned to Section H.
Plaintiffs Charles Harris, Michael Learn, Khaled Abdelfattah, Chester
Reed, and Edward Colbert each alleged that continuous exposure to oil and
dispersants as a result of the oil spill caused a host of medical conditions. Like
other B3 plaintiffs, Plaintiffs submitted expert reports 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 they
alleged in their complaints. 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 Federal Rule of Evidence 702. Because expert testimony
is required to establish general causation in a toxic tort case, and Plaintiffs’
sole expert witness on the issue of general causation was excluded, this Court
granted Defendants’ motions for summary judgment and dismissed Plaintiffs’
claims with prejudice.
Now before the Court are Plaintiffs’ Motions for Reconsideration under
Federal Rule of Civil Procedure 59(e). Plaintiffs argue that the Court’s orders
granting the Defendants’ Motions in Limine and Motions for Summary
Judgment should be reconsidered in light of the ongoing dispute in another B3

3
4

Id. at 2 n.3.
Id. at 7–8.
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case regarding BP’s decision not to collect dermal and biometric data from
cleanup workers. 5
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.” 6 “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.” 7 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. 8 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.” 9 Rule 59(e) relief represents “an extraordinary
remedy that should be used sparingly.” 10

See Torres-Lugo v. BP Expl. & Prod. Inc., No. 20-210 (E.D. La. June 3, 2022).
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations
omitted).
7 Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) (quoting Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004)).
8 FED. R. CIV. P. 59.
9 Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3,
1998).
10 Id.
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LEGAL ANALYSIS
Plaintiffs move this Court for reconsideration under Rule 59(e) of its
orders excluding Dr. Cook’s testimony and granting Defendants’ motions for
summary judgment. In support of their Motions, Plaintiffs note 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.
Plaintiffs argue 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.” 11 They contend
that they should be permitted to defend BP’s Motions with a full record.
Defendants respond that Plaintiffs are rehashing arguments irrelevant to this
suit and that they present no arguments unique to this case.
Plaintiffs do not identify which of the four Rule 59(e) criteria they believe
is satisfied here. Plaintiffs’ arguments regarding the imposition of discovery
sanctions in another B3 case are 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
collect. 12 “[E]ven assuming that BP had an affirmative duty to collect

No. 17-3265, Doc. 70; No. 17-3321, Doc. 89; No. 17-3443, Doc. 73; No. 17-3603, Doc.
69; No. 17-3647, Doc. 97.
12 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
3664738 (E.D. La. Aug. 25, 2022) (stating that “the Torres-Lugo sanctions are irrelevant to
defendants’ motions in limine and for summary judgment.”).
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biomonitoring and dermal data from cleanup workers, this lack of information
is not what renders Dr. Cook’s expert report” inadmissible. 13
Accordingly, Plaintiffs have 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. 14
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motions for Reconsideration are
DENIED. 15
New Orleans, Louisiana this 10th day of November, 2022.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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2022).

Barkley v. BP Expl. & Prod., Inc., No. 13-995, 2022 WL 3715438 (E.D. La. Aug. 5,

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) (Barbier, J.); McGill v. BP Expl. & Prod. Inc., No. CV 17-3392, 2022 WL
16552832, at *1 (E.D. La. Oct. 28, 2022) (Barbier, J.); 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)”) (Vance, J.); Milsap v. BP Expl. & Prod. Inc., No. 17-4451,
2022 WL 6743269 (E.D. La. Oct. 11, 2022) (Africk, J.); Keller, 2022 WL 3664738 (Africk, J.);
Barksdale v. BP Expl. & Prod., Inc., No. CV 17-3034, 2022 WL 13732933, at *1 (E.D. La. Oct.
21, 2022) (Zainey, J.)
15 No. 17-3265, Doc. 70; No. 17-3321, Doc. 89; No. 17-3443, Doc. 73; No. 17-3603, Doc.
69; No. 17-3647, Doc. 97.
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