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

Filing 65

ORDER AND REASONS denying 61 Motion for Reconsideration filed by Josh Treme. Signed by Judge Sarah S. Vance on 08/21/2023. (cs)

Case 2:17-cv-04269-SSV-MBN Document 65 Filed 08/21/23 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHARLES ANTHONY BOWENS

CIVIL ACTION

VERSUS

NO. 17-3054

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (2)

RITA SPENCER

CIVIL ACTION

VERSUS

NO. 17-4253

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (5)

JOSH TREME

CIVIL ACTION

VERSUS

NO. 17-4269

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (5)

DANIEL YARBROUGH

CIVIL ACTION

VERSUS

NO. 17-4293

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (5)

RODNEY HAYES

CIVIL ACTION

VERSUS

NO. 17-4349

BP EXPLORATION &
PRODUCTION, INC., ET AL.

SECTION “R” (4)

ORDER AND REASONS
Before the Court are motions for reconsideration filed by each of the above-

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Case 2:17-cv-04269-SSV-MBN Document 65 Filed 08/21/23 Page 2 of 8

captioned plaintiffs. 1 Defendants BP Exploration & Production, Inc., BP America
Production Company, and BP p.l.c., (collectively, the “BP 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
or her resulting exposure to crude oil and dispersants caused a litany of health
conditions. 4 Plaintiffs brought claims for general maritime negligence, negligence
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2

3
4

Bowens, No. 17-3054, R. Doc. 58; Spencer, No. 17-4253, R. Doc. 60; Treme,
No. 17-4269, R. Doc. 61; Yarbrough, No. 17-4293, R. Doc. 60; Hayes, R. Doc.
62.
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. Bowens, No. 17-3054, R. Doc. 61 at 1 n.1; Spencer, No.
17-4253, R. Doc. 63 at 1 n.1; Treme, No. 17-4269, R. Doc. 64 at 1 n.1;
Yarbrough, No. 17-4293, R. Doc. 63 at 1 n.1; Hayes, R. Doc. 65 at 1 n.1.
Bowens, No. 17-3054, R. Doc. 1; Spencer, No. 17-4253, R. Doc. 1; Treme, No.
17-4269, R. Doc. 1; Yarbrough, No. 17-4293, R. Doc. 1; Hayes, R. Doc. 1.
Bowens, No. 17-3054, R. Doc. 1-1 at 11; Spencer, No. 17-4253, R. Doc. 1-1 at
9; Treme, No. 17-4269, R. Doc. 1-1 at 13-14; Yarbrough, No. 17-4293, R.
Doc. 1-1 at 9-10; Hayes, R. Doc. 1-1 at 11.
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Case 2:17-cv-04269-SSV-MBN Document 65 Filed 08/21/23 Page 3 of 8

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 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

5

6

7

8

Bowens, No. 17-3054, R. Doc. 26 ¶¶ 19-49; Spencer, No. 17-4253, R. Doc. 28
¶¶ 19-49; Treme, No. 17-4269, R. Doc. 29 ¶¶ 19-49; Yarbrough, No. 17-4293,
R. Doc. 28 ¶¶ 19-49; Hayes, R. Doc. 28 at ¶¶ 19-49.
Bowens, No. 17-3054, R. Doc. 58; Spencer, No. 17-4253, R. Doc. 60; Treme,
No. 17-4269, R. Doc. 61; Yarbrough, No. 17-4293, R. Doc. 60; Hayes, R. Doc.
62.
Bowens, No. 17-3054, R. Doc. 56; Spencer, No. 17-4253, R. Doc. 58; Treme,
No. 17-4269, R. Doc. 59; Yarbrough, No. 17-4293, R. Doc. 58; Hayes, R.
Doc. 60.
Id.
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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’ 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

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Id.
Bowens, No. 17-3054, R. Doc. 58; Spencer, No. 17-4253, R. Doc. 60; Treme,
No. 17-4269, R. Doc. 61; Yarbrough, No. 17-4293, R. Doc. 60; Hayes, R. Doc.
62.
Id.
Bowens, No. 17-3054, R. Doc. 61 at 1; Spencer, No. 17-4253, R. Doc. 63 at 1;
Treme, No. 17-4269, R. Doc. 64 at 1; Yarbrough, No. 17-4293, R. Doc. 63 at
1; Hayes, R. Doc. 65 at 1.

10

11
12

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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 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
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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 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

13

14

Bowens, No. 17-3054, R. Doc. 61 n.1; Spencer, No. 17-4253, R. Doc. 63-1 at
1-4; Treme, No. 17-4269, R. Doc. 64-1 at 1-4; Yarbrough, No. 17-4293, R.
Doc. 63-1 at 1-4; Hayes, R. Doc. 62 at 1-4.
Id.
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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 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. 191795, 2021 WL 2267676, at *1 (E.D. La. June 3, 2021).
Further, plaintiffs’ motions do not mention any of Rule 59(e) criteria.
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
15

16

Bowens, No. 17-3054, R. Docs. 46, 47, & 48; Spencer, No. 17-4253, R. Docs.
47, 48, & 49; Treme, No. 17-4269, R. Docs. 48, 49, & 50; Yarbrough, No. 174293, R. Docs. 47, 48, & 49; Hayes, R. Docs. 49, 50, & 51.
See Bowens, No. 17-3054, R. Doc. 56; Spencer, No. 17-4253, R. Doc. 58;
Treme, No. 17-4269, R. Doc. 59; Yarbrough, No. 17-4293, R. Doc. 58;
Hayes, R. Doc. 60.
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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.

IV.

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

DENIED.

21st day of August, 2023.
New Orleans, Louisiana, this _____

_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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