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

Filing 80

ORDER AND REASONS: denying 77 Motion for Reconsideration, as stated herein. Signed by Judge Jane Triche Milazzo on 02/02/2023. (am)

Case 2:17-cv-03555-JTM-JVM Document 80 Filed 02/02/23 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
COREY ANTHONY CHARLES

CIVIL ACTION

VERSUS

NO. 17-3125

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

CIVIL ACTION

VERSUS

NO. 17-3499

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
JACQUES PIERRE MCINNIS, JR.

CIVIL ACTION

VERSUS

NO. 17-3555

BP EXPLORATION &
PRODUCTION, INC. ET AL.

SECTION: “H”

____________________________________________________________________
JESSE CANTU MEDEL, III

CIVIL ACTION

VERSUS

NO. 17-3564

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

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Case 2:17-cv-03555-JTM-JVM Document 80 Filed 02/02/23 Page 2 of 8

DENNIS RAY MOORE

CIVIL ACTION

VERSUS

NO. 17-3574

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

CIVIL ACTION

VERSUS

NO. 17-3598

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

CIVIL ACTION

VERSUS

NO. 17-3628

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

CIVIL ACTION

VERSUS

NO. 17-4367

BP EXPLORATION &
SECTION: “H”
PRODUCTION, INC. ET AL.
____________________________________________________________________
CHIANTI LASHON BOOTH &
CARLOS ALEXANDER THOMAS

CIVIL ACTION

VERSUS

NO. 17-3053
& 17-4608

BP EXPLORATION &

SECTION: “H”
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Case 2:17-cv-03555-JTM-JVM Document 80 Filed 02/02/23 Page 3 of 8

PRODUCTION, INC. ET AL.
ORDER AND REASONS
Before the Court are nearly identical motions submitted in nine 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 nine 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 nine cases
were reassigned to Section H. 5
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.
5 Medel v. BP Expl. & Prod., Inc., No. 17-3564, R. Doc. 6; McInnis v. BP Expl. & Prod., Inc.
No. 17-3555, R. Doc. 6; Aubert v. BP Expl. & Prod., Inc., No. 17-3628, R. Doc. 6; Peschlow v.
BP Expl. & Prod., Inc., No. 17-3598, R. Doc. 39; Charles v. BP Expl. & Prod., Inc., No. 173125, R. Doc. 6; Boler v. BP Expl. & Prod., Inc., No. 17-3499, R. Doc. 7; Jenkins v. BP Expl.
& Prod., Inc., No. 17-4367, R. Doc. 6; Moore v. BP Expl. & Prod., Inc., No. 17-3574, R. Doc. 6;
Booth v. BP Expl. & Prod., Inc., No. 17-3053, R. Doc. 30.
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Plaintiffs Corey Anthony Charles; Sterling Wayne Boler; Jacques Pierre
McInnis, Jr.; Jesse Cantu Medel, III; Dennis Ray Moore; Mark L. Peschlow;
Teandra S. Aubert; Terria Jenkins; Chianti Lashon Booth; and Carlos
Alexander Thomas each filed lawsuits against Defendants based on their
alleged exposure to toxic chemicals following the Deepwater Horizon oil spill
in the Gulf of Mexico. 6 Each plaintiff was allegedly 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. 7
Plaintiffs bring claims for general maritime negligence, negligence per se, and
gross negligence against Defendants. 8
Now before the Court in each of the above-captioned cases are Plaintiffs’
Motions for Reconsideration under Federal Rule of Civil Procedure 59(e).
Plaintiffs argue that the Court’s order granting the Defendants’ Motion in
Limine and Motion for Summary 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. 9 Defendants BP Exploration
& Production, Inc.; BP America Production Company; BP p.l.c.; Transocean
Holdings, LLC; Transocean Deepwater, Inc.; Transocean Offshore Deepwater
Medel, No. 17-3564, R. Doc. 1-1 at 5; McInnis, No. 17-3555, R. Doc. 1-1 at 5; Aubert, No. 173628, R. Doc. 1-1 at 5; Peschlow, No. 17-3598, R. Doc. 1-1 at 5; Charles, No. 17-3125, R. Doc.
1-1 at 5; Boler, No. 17-3499, R. Doc. 1-1 at 5; Jenkins, No. 17-4367, R. Doc. 1-1 at 5; Moore,
No. 17-3574, R. Doc. 1-1 at 5; Booth, No. 17-3053, R. Doc. 1-1 at 5.
7 Medel, No. 17-3564, R. Doc. 29 at 7–15; McInnis, No. 17-3555, R. Doc. 30 at 7–15; Aubert,
No. 17-3628, R. Doc. 31 at 7–15; Peschlow, No. 17-3598, R. Doc. 28 at 7–15; Charles, No. 173125, R. Doc. 31 at 7–15; Boler, No. 17-3499, R. Doc. 31 at 7–15; Jenkins, No. 17-4367, R. Doc.
32 at 7–15; Moore, No. 17-3574, R. Doc. 30 at 7–15; Booth, No. 17-3053, R. Doc. 33 at 7–15.
8 See cases cited in supra note 7.
9 Medel, No. 17-3564, R. Doc. 72; McInnis, No. 17-3555, R. Doc. 77; Aubert, No. 17-3628, R.
Doc. 77; Peschlow, No. 17-3598, R. Doc. 62; Charles, No. 17-3125, R. Doc. 71; Boler, No. 173499, R. Doc. 70; Jenkins, No. 17-4367, R. Doc. 78; Moore, No. 17-3574, R. Doc. 73; Booth, No.
17-3053, R. Docs. 110, 112. See also Torres-Lugo v. BP Expl. & Prod. Inc., No. 20-210 (E.D.
La. June 3, 2022).
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Drilling, Inc.; and Halliburton Energy Services, Inc. (collectively, the “BP
parties”) oppose.
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.” 10 “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.” 11 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. 12 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.” 13 Rule 59(e) relief represents “an extraordinary
remedy that should be used sparingly.” 14
LEGAL ANALYSIS

Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations omitted).
Edionwe v. Bailey, 860 F.3d 287, 294 (5th Cir. 2017) (quoting Templet v. HydroChem Inc.,
367 F.3d 473, 479 (5th Cir. 2004)).
12 FED. R. CIV. P. 59.
13 Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998).
14 Id.
10
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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. 15 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 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.” 16 Plaintiffs state that they have
now secured the deposition testimony of a new BP Corporate witness and argue
that upon reconsideration, this Court should “deny the motions in limine and
motions for summary judgment of BP, or delay final consideration of them, to
allow Plaintiff[s] to fully brief and argue the issues with the benefit of a full
record.” 17 Defendants respond that Plaintiffs are rehashing arguments
irrelevant to this suit and that they present no arguments unique to their
cases. This Court agrees. 18
Plaintiffs do not identify which of the four Rule 59(e) criteria they believe
are satisfied here. Plaintiffs’ argument regarding the imposition of discovery
sanctions in another B3 case is irrelevant to the fact that Dr. Cook’s opinion is
Medel, No. 17-3564, R. Doc. 72; McInnis, No. 17-3555, R. Doc. 77; Aubert, No. 17-3628, R.
Doc. 77; Peschlow, No. 17-3598, R. Doc. 62; Charles, No. 17-3125, R. Doc. 71; Boler, No. 173499, R. Doc. 70; Jenkins, No. 17-4367, R. Doc. 78; Moore, No. 17-3574, R. Doc. 73; Booth, No.
17-3053, R. Docs. 110, 112.
16 Medel, No. 17-3564, R. Doc. 72 at 3; McInnis, No. 17-3555, R. Doc. 77 at 3; Aubert, No. 173628, R. Doc. 77 at 3; Peschlow, No. 17-3598, R. Doc. 62 at 3; Charles, No. 17-3125, R. Doc.
71 at 3; Boler, No. 17-3499, R. Doc. 70 at 3; Jenkins, No. 17-4367, R. Doc. 78 at 3; Moore, No.
17-3574, R. Doc. 73 at 3; Booth, No. 17-3053, R. Docs. 110 at 3, 112 at 3.
17 Id.
18 Facing a similar motion to reconsider, another section of this Court agreed with Defendants
and held 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.” McGill v. BP Expl. & Prod., Inc., No. 17-3392, R. Doc.
64 (E.D. La. Oct. 31, 2022).
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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. 19 As for Plaintiffs’ 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.20
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 several other courts in this district have also
denied reconsideration on the same grounds.21
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motions for Reconsideration are
DENIED.

New Orleans, Louisiana this 2nd day of February, 2023.
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.”).
20 Barkley v. BP Expl. & Prod., Inc., No. 13-995, 2022 WL 3715438 (E.D. La. Aug. 5, 2022).
21 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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____________________________________
JUDGE JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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