Grant v. BP Exploration & Production, Inc. et al
Filing
67
ORDER AND REASONS denying 65 Motion for Reconsideration re 64 Judgment, 62 Order and Reasons for the reasons stated herein. Signed by Judge Sarah S. Vance on 9/20/2022. (mm)
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 1 of 10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FREDERICK LLOYD DAWKINS
CIVIL ACTION
VERSUS
NO. 17-3533
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
MARCUS JEROME PEAIRS
CIVIL ACTION
VERSUS
NO. 17-3596
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
STEVE COLEMAN
CIVIL ACTION
VERSUS
NO. 17-4158
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (1)
MARCUS GRANT
CIVIL ACTION
VERSUS
NO. 17-4334
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
AL’TERRYAL HARRIS
CIVIL ACTION
VERSUS
NO. 17-4342
BP EXPLORATION &
PRODUCTION, INC., ET AL.
SECTION R (4)
1
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 2 of 10
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
parties”) oppose plaintiffs’ motions.2 For the following reasons, the Court
denies plaintiffs’ motions for reconsideration.
I.
BACKGROUND
Plaintiffs Frederick Lloyd Dawkins, Marcus Jerome Peairs, Steve
Coleman, Marcus Grant, and Al’Terryal Harris each filed lawsuits against
defendants based on their alleged exposure to toxic chemicals following the
1
2
Harris, No. 17-4342, R. Doc. 76; Peairs, No. 17-3596, R. Doc. 67;
Grant, No. 17-4334, R. Doc. 65; Coleman, No. 17-4158, R. Doc. 75;
Dawkins, No. 17-3533, R. Doc. 79.
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. Harris, No. 174342, R. Doc. 77 at 1 n.1; Peairs, No. 17-3596, R. Doc. 68 at 1 n.1; Grant,
No. 17-4334, R. Doc. 66 at 1 n.1; Coleman, No. 17-4158, R. Doc. 76 at 1
n.1; Dawkins, No. 17-3533, R. Doc. 80 at 1 n.1.
2
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 3 of 10
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
symptoms they allege in their complaints. 6 Dr. Cook was plaintiffs’ only
expert on the issue of general causation. 7 This Court excluded the testimony
of Dr. Cook as unreliable and unhelpful under Fed. R. Civ. P. 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. 8
3
4
5
6
7
8
The Court
Harris, No. 17-4342, R. Doc. 75 at 2; Peairs, No. 17-3596, R. Doc. 64
at 2; Grant, No. 17-4334, R. Doc. 62 at 2; Coleman, No. 17-4158, R.
Doc. 72 at 2; Dawkins, No. 17-3533, R. Doc. 75 at 2.
Id.
Harris, No. 17-4342, R. Doc. 75 at 3; Peairs, No. 17-3596, R. Doc. 64
at 3; Grant, No. 17-4334, R. Doc. 62 at 3; Coleman, No. 17-4158, R.
Doc. 72 at 3; Dawkins, No. 17-3533, R. Doc. 75 at 3.
Id.
Id.
Harris, No. 17-4342, R. Doc. 75 at 18; Peairs, No. 17-3596, R. Doc. 64
3
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concluded that Dr. Cook “lacks sufficient facts on both the composition of the
substances at issue and their toxicity to provide a reliable opinion on general
causation.” 9
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. 10
Plaintiffs now move this Court for reconsideration under Rule 59(e) of
its orders excluding Dr. Cook’s testimony and granting defendants’ motions
for summary judgment. 11
Each of plaintiffs’ motions are substantively
identical. In support of their motions, plaintiffs contend they have been
unable to “properly present appropriate expert testimony regarding dosage
9
10
11
at 19; Grant, No. 17-4334, R. Doc. 62 at 18; Coleman, No. 17-4158, R.
Doc. 72 at 18; Dawkins, No. 17-3533, R. Doc. 75 at 18.
Harris, No. 17-4342, R. Doc. 75 at 23; Peairs, No. 17-3596, R. Doc. 64
at 23; Grant, No. 17-4334, R. Doc. 62 at 23; Coleman, No. 17-4158, R.
Doc. 72 at 23; Dawkins, No. 17-3533, R. Doc. 75 at 23.
A more fulsome description of the facts and procedural history of each
case can be found at the Order and Reasons granting defendants’
motions in limine and motions for summary judgment in each case.
See Harris, No. 17-4342, R. Doc. 75; Peairs, No. 17-3596, R. Doc. 64;
Grant, No. 17-4334, R. Doc. 62; Coleman, No. 17-4158, R. Doc. 72;
Dawkins, No. 17-3533, R. Doc. 75.
Harris, No. 17-4342, R. Doc. 76; Peairs, No. 17-3596, R. Doc. 67;
Grant, No. 17-4334, R. Doc. 65; Coleman, No. 17-4158, R. Doc. 75;
Dawkins, No. 17-3533, R. Doc. 79.
4
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 5 of 10
due to Defendant BP’s alleged mismanagement of biological monitoring.”12
They note that another section of this Court has sanctioned defendants for
failing to produce a proper 30(b)(6) corporate witness to testify to the issue
of biological monitoring, and 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.” 13 Plaintiffs argue that upon reconsideration, this Court
should “deny [defendants’] motions in limine and motions for summary
judgment until they can “obtain a proper 30(b)(6) deposition of a qualified
corporate witness.”14
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). 15 They further argue that the issue of discovery sanctions is
12
13
14
15
Harris, No. 17-4342, R. Doc. 76 at 1; Peairs, No. 17-3596, R. Doc. 67 at
1; Grant, No. 17-4334, R. Doc. 65 at 1; Coleman, No. 17-4158, R. Doc.
75 at 1; Dawkins, No. 17-3533, R. Doc. 79 at 1.
Harris, No. 17-4342, R. Doc. 76-1 at 3; Peairs, No. 17-3596, R. Doc. 671 at 3; Grant, No. 17-4334, R. Doc. 65-1 at 3; Coleman, No. 17-4158, R.
Doc. 75-1 at 3; Dawkins, No. 17-3533, R. Doc. 79-1 at 3.
Id.
Harris, No. 17-4342, R. Doc. 77 at 1; Peairs, No. 17-3596, R. Doc. 68 at
1; Grant, No. 17-4334, R. Doc. 66 at 1; Coleman, No. 17-4158, R. Doc.
76 at 1; Dawkins, No. 17-3533, R. Doc. 80 at 1.
5
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 6 of 10
irrelevant to general causation. 16
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
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)
16
Id. Defendants also argue that plaintiffs are not entitled to an adverse
inference based on an “anticipatory spoliation” theory that plaintiffs
have allegedly advanced in other sections of this Court. Harris, No.
17-4342, R. Doc. 77 at 1-2; Peairs, No. 17-3596, R. Doc. 68 at 1-2;
Grant, No. 17-4334, R. Doc. 66 at 1-2; Coleman, No. 17-4158, R. Doc.
76 at 1-2; Dawkins, No. 17-3533, R. Doc. 80 at 1-2. Because plaintiffs
have not made that argument in the pending motions, it will not be
addressed here.
6
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(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 defendants have improperly
blocked plaintiffs’ discovery on the issue of defendants’ biomonitoring efforts
after the Deepwater Horizon oil spill.17 Plaintiffs advanced this very same
argument, and highlighted the possibility that defendants would be
sanctioned for their alleged discovery abuses in the Torres-Lugo case, in
17
Harris, No. 17-4342, R. Doc. 76 at 1; Peairs, No. 17-3596, R. Doc. 67 at
1; Grant, No. 17-4334, R. Doc. 65 at 1; Coleman, No. 17-4158, R. Doc.
75 at 1; Dawkins, No. 17-3533, R. Doc. 79 at 1.
7
Case 2:17-cv-04334-SSV-KWR Document 67 Filed 09/20/22 Page 8 of 10
response to defendants’ motions in limine.
18
This Court granted
defendants’ motions in the face of plaintiffs’ arguments, and the fact that
sanctions were, in fact, granted in the Torres-Lugo case does not change the
Court’s conclusions.
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).
As this Court has explained in response to the motions to continue all
deadlines that several of the above-named plaintiffs recently filed, “the issues
involved in the [] sanctions motion are not outcome determinative of
defendants’ motion[s] in limine on the issue of admissibility of Dr. Cook’s
report, or on the merits of defendants’ summary judgment motion.” 19
18
19
Harris, No. 17-4342, R. Doc. 56 at 8-9; Peairs, No. 17-3596, R. Doc. 5117 at 5; Grant, No. 17-4334, R. Doc. 49-17 at 5; Coleman, No. 17-4158,
R. Doc. 55 at 9; Dawkins, No. 17-3533, R. Doc. 63 at 8-9.
See Peairs, No. 17-3596, R. Doc. 65 at 2; Coleman, No. 17-4158, R. Doc.
71 at 1-2. That defendants’ motion in limine and motion for summary
judgment were dismissed without prejudice in the Torres-Lugo case
pending defendants’ compliance with the sanctions order issued in that
case does not alter or undermine this Court’s conclusion that the
discovery plaintiffs seek is irrelevant to the admissibility of Dr. Cook’s
testimony, because such discovery would not “cure the lack of ‘fit’
between Dr. Cook’s general causation report and the facts of
plaintiff[s’] case[s].” Peairs, No. 17-3596, R. Doc. 65 at 4.
8
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Plaintiffs do not contend the discovery they are seeking, which involves what
BP did not do after the oil spill, would supply the missing dose-response
relationship or cure the lack of fit between Dr. Cook’s opinion and the facts
of their cases, which were the bases for this Court’s decision.
Other sections of this Court have observed the same, noting that “the
point of an expert on general causation is to explain whether the exposure to
a particular chemical is capable generally of causing a certain health issue in
the general population. It is not dependent on data from the particular
incident at issue.” Burns v. BP Expl. & Prod. Inc., No. 17-3117, R. Doc. 66
at 2 n.5 (E.D. La. July 25, 2022) (Ashe, J.) (“BP’s alleged failure to monitor
the oil-spill workers is irrelevant to the resolution of these motions.”); see
also Ross v. BP Expl. & Prod. Inc., No. 17-4287, R. Doc. 60 at 12 (E.D. La.
July 28, 2022) (Barbier, J.) (“[T]his [general causation] inquiry does not
depend upon environmental sampling data taken as part of the incident.”);
Reed v. BP Expl. & Prod. Inc., No. 17-3603, R. Doc. 66 at 2 (E.D. La. July 28,
2022) (Milazzo, J.) (“[T]he Court finds that the outcome of the additional
discovery in Torres-Lugo does not affect the issues presented in Defendants’
Motions.”).
Plaintiffs do not claim to have discovered new evidence, nor do they
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point to intervening changes in controlling law.
They further fail to
establish that this Court’s orders work a manifest injustice.
Their 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).
Templet, 367 F.3d at 479.
IV.
CONCLUSION
For the foregoing reasons, plaintiffs’ motions for reconsideration are
DENIED.
20th day of September, 2022.
New Orleans, Louisiana, this ____
_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
10
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