Brown v. BP Exploration & Production, Inc. et al
Filing
102
ORDER AND REASONS - IT IS ORDERED that Plaintiff's 99 Motion for Reconsideration is DENIED, as set forth herein. Signed by Judge Jane Triche Milazzo on 7/20/2023. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREGORY ALPHONSE ROUNDS
CIVIL ACTION
VERSUS
NO. 17-4576
BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
CHER GRIFFIN BROWN
CIVIL ACTION
VERSUS
NO. 17-3516
BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
CHESTER LEE NORSWEARTHY
CIVIL ACTION
VERSUS
NO. 17-3590
BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
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ORDER AND REASONS
Before the Court are nearly identical motions submitted in three
different cases. Plaintiffs have filed Motions to Reconsider the Court’s Orders
Granting Defendants’ Motions in Limine and Motions for Summary Judgment
in each of their cases. For the following reasons, these Motions are DENIED.
BACKGROUND
These three 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
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 The above cases were
reassigned to Section H.
Plaintiffs Gregory Alphonse Rounds, Cher Griffin Brown, and Chester
Lee Norswearthy each filed lawsuits against Defendants based on their alleged
exposure to toxic chemicals following the Deepwater Horizon oil spill in the
Gulf of Mexico. Each plaintiff was allegedly involved in cleanup or recovery
work after the oil spill, and each contends that his or her resulting exposure to
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.
4 Id. at 7–8.
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crude oil and dispersants caused a litany of health conditions. Plaintiffs bring
claims for general maritime negligence, negligence per se, and gross negligence
against Defendants.
Now before the Court in each of the above-captioned cases are Plaintiffs’
Motions for Reconsideration under Federal Rule of Civil Procedure 59(e). 5
Plaintiffs argue that the Court’s order granting the Defendants’ Motion in
Limine and Motion for Summary Judgment should be reconsidered because of
BP’s decision not to collect dermal and biometric data from cleanup workers.
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. 6
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.” 7 “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.” 8 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
Norswearthy v. BP Expl. & Prod., Inc., No. 17-3590, R. Doc. 69; Brown v. BP Expl. & Prod.,
Inc., No. 17-3516, R. Doc. 99; Rounds v. BP Expl. & Prod., Inc., No. 17-4576, R. Doc. 90.
6 Norswearthy, No. 17-3590, R. Doc. 71; Brown, Inc., No. 17-3516, R. Doc. 101; Rounds, No.
17-4576, R. Doc. 92.
7 Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations omitted).
8 Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) (quoting Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004)).
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should be granted. 9 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.” 10 Rule 59(e) relief represents “an extraordinary
remedy that should be used sparingly.” 11
LEGAL ANALYSIS
Plaintiffs move this Court for reconsideration under Rule 59(e) of its
order excluding Dr. Cook’s testimony and granting Defendants’ motion for
summary judgment. Plaintiffs state that the affidavit of Dr. Linda Birnbaum,
the Director of the National Institute of Environmental Health Sciences
(“NIEHS”) creates an issue of fact “as to whether biomonitoring would have
been required to adequately protect the workers from the known hazards of
exposure to crude oil.” 12 Defendants respond that Plaintiffs are rehashing
arguments irrelevant to this suit and that they present no arguments unique
to their cases.
Plaintiffs do not identify which of the four Rule 59(e) criteria they believe
are satisfied here. Plaintiffs’ argument regarding Dr. Birnbaum’s affidavit is
irrelevant to the fact that Dr. Cook’s opinion is unhelpful and unreliable. In its
previous Orders, this Court, as well as others in this district, determined that
FED. R. CIV. P. 59.
Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998).
11 Id.
12 Norswearthy, No. 17-3590, R. Doc. 69; Brown, Inc., No. 17-3516, R. Doc. 99; Rounds, No.
17-4576, R. Doc. 90.
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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.
Specifically, another section of this Court has held that “Dr. Birnbaum’s
affidavit neither cures nor explains the deficiencies of [Dr.] Cook's report.”13
Dr. Birnbaum’s affidavit “appears to conflate general causation with specific
causation,” as general causation requires “evidence demonstrating that the
types of chemicals encountered by Plaintiff are actually capable of causing the
injuries alleged by Plaintiff.” 14 The Fifth Circuit requires admissible general
causation expert testimony in toxic-tort cases, and Dr. Birnbaum’s affidavit
does not remedy this deficiency within Dr. Cook’s expert report. 15
Considering the above, 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 another court in this district has also denied
reconsideration on the same grounds. 16
Walker v. BP Expl. & Prod. Inc., No. CV 17-3012, 2022 WL 17987118 (E.D. La. Dec. 29,
2022); See also Kaoui v. BP Expl. & Prod., Inc., No. CV 17-3313, 2023 WL 330510, at *9 (E.D.
La. Jan. 12, 2023) (holding that “the Court does not find that Dr. Birnbaum's affidavit
corrects or explains the shortcomings of Dr. Cook's Report so as to render his opinions
admissible”).
14 Kaoui, 2023 WL 330510, at *9.
15 Campbell v. B.P. Expl. & Prod., Inc., No. CV 17-3119, 2022 WL 17251115, at *12 (E.D. La.
Nov. 28, 2022) (Vance, J.) (stating that ““Dr. Cook’s report is flawed in ways unrelated to BP’s
decision not to conduct monitoring.”).
16 Kaoui v. BP Expl. & Prod., Inc., No. CV 17-3313, 2023 WL 2403278, at *2 (E.D. La. Mar. 8,
2023) (“Plaintiff has failed to demonstrate that this Court should either alter or amend its
prior Order in this case granting summary judgment in favor of Defendants.”); Lenard v. BP
Expl. & Prod., Inc., No. CV 17-3546, 2023 WL 2456079 (E.D. La. Mar. 10, 2023).
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CONCLUSION
For the foregoing reasons, Plaintiffs’ Motions for Reconsideration are
DENIED.
New Orleans, Louisiana this 20th day of July, 2023.
____________________________________
JUDGE JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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