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

Filing 16

ORDER AND REASONS: IT IS ORDERED that plaintiff's Motion to Compel Disclosure, Record Doc. No. 9 , and Motion to Conduct Further Proceedings in the Eastern District of Louisiana, Record Doc. No. 14 , are DENIED. IT IS FURTHER ORDERED tha t defendant's motion to transfer venue, Record Doc. No. 12 , is GRANTED and that the instant matter is TRANSFERRED to the United States District Court for the Southern District of Mississippi, Eastern Division. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/6/2017. (NEF: HON. CARL J. BARBIER)(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KEVIN HARRIEL

CIVIL ACTION

VERSUS

NO. 17-7024

BP EXPLORATION & PRODUCTION INC. ET AL.

SECTION “J”(2)

ORDER AND REASONS ON MOTIONS
The BELO portion of the Medical Benefits Class Action Settlement Agreement in
In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20,
2010, MDL No. 2179, Record Doc. No. 6427-1 at pp. 60-73, and this court’s Case
Management Orders (“CMO”), Record Doc. No. 14099 in MDL No. 2179 and Record Doc.
No. 3 in the captioned case, provide for determination by this court, with the input of the
parties, of the appropriate venue for discovery and dispositive proceedings. Plaintiff Kevin
Harriel filed a Motion to Compel Disclosure, Record Doc. No. 9, and a Motion to Conduct
Further Proceedings in the Eastern District of Louisiana. Record Doc. No. 14. Defendants
filed a timely memorandum in opposition to plaintiff’s motion to compel, Record Doc. No.
15, and filed a Motion to Transfer Venue to the United States District Court for the
Southern District of Mississippi. Record Doc. No. 12.
Having considered the record, the applicable law and the written submissions of
counsel for the parties, IT IS ORDERED that plaintiff’s Motion to Compel Disclosure,
Record Doc. No. 9, and Motion to Conduct Further Proceedings in the Eastern District of
Louisiana, Record Doc. No. 14, are DENIED. IT IS FURTHER ORDERED that
defendant’s motion to transfer venue, Record Doc. No. 12, is GRANTED and that the

instant matter is TRANSFERRED to the United States District Court for the Southern
District of Mississippi, Eastern Division, for the following reasons.
I.

PLAINTIFF’S MOTION TO COMPEL DISCLOSURE
Harriel seeks to compel defendants to provide the names, addresses and telephone

numbers of all employees or co-workers who worked with him while he was employed by
Dynamic Environmental, Inc. as a cleanup worker at the “ERG BP Yard” in Morgan City,
Louisiana,1 and while he was employed by Wallace-Eutaw, LLC as a beach cleanup worker
in Gulfport, Mississippi. This type of discovery is expressly prohibited by the CMO, which
limits the information that the parties must exchange during the initial proceedings phase
of this lawsuit to the following:
(A) all information, data and/or tangible materials, if any, about plaintiff in
the BP medical encounters database and/or oil spill cleanup worker database;
(B) all non-privileged information, data and/or tangible materials concerning
job duty, job assignment and/or time records, if any, in BP’s possession,
custody or control relating to plaintiff; and
(C) all contracts and/or agreements between BP and plaintiff’s direct
employer(s), if any, concerning oil spill response work, including but not
limited to requirements, policies and procedures concerning health, safety
and welfare of oil spill response workers.
CMO, § II(2) (emphasis added).
Harriel does not contend that defendants failed to comply with these disclosure
obligations (and defendants assert that they did comply), but plaintiff seeks to compel
defendants to produce additional information. However, the CMO provides that “[n]o
1

Harriel’s complaint and motion to compel state that he worked in Morgan City. His Plaintiff
Profile Form, Record Doc. No. 12-4 at pp. 4, 5, says that he worked in Amelia, Louisiana, which is 7.5
miles from Morgan City. Google maps, https://www.google.com/maps (last visited Dec. 4, 2017).

2

discovery may be commenced and all discovery in all BELO lawsuits is STAYED at this
time. Discovery is prohibited until after any BELO lawsuit is transferred to another court
or reallotted within the Eastern District of Louisiana as provided [in the CMO].” Id. § V.
Plaintiff may seek discovery of additional information pursuant to the appropriate
Federal Rules of Civil Procedure after this case is transferred or reallotted.

Id.

Accordingly, his motion to compel disclosure of additional information is DENIED.
II.

THE VENUE MOTIONS
Harriel’s complaint alleges that he is a citizen of Mississippi and that, at all material

times, he was a resident of Poplarville, Mississippi, which is located in Pearl River County
in the Southern District of Mississippi, Southern Division. 28 U.S.C. § 104(b)(2).
Defendants move to transfer this case to the Southern District of Mississippi, without
specifying which of the Southern District of Mississippi’s four divisions is the appropriate
venue.
Paragraph III(2) of this court’s CMO provides that “the factors set forth in 28 U.S.C.
§ 1404(a) and applicable case law” govern determination of the appropriate venue for
discovery and dispositive proceedings. 28 U.S.C. § 1404 provides: “For the convenience
of parties and witnesses, in the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been brought or to any district
or division to which all parties have consented.” Applicable case law establishes that
private interest factors relevant to the court’s venue determination include “‘(1) the relative
ease of access to sources of proof; (2) the availability of compulsory process to secure the
3

attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
practical problems that make trial of a case easy, expeditious and inexpensive.’” In re
Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (quoting In re Volkswagen
AG, 371 F.3d 201, 203 (5th Cir. 2004)). Other relevant public interest factors include “‘(1)
the administrative difficulties flowing from court congestion; (2) the local interest in having
localized interests decided at home; (3) the familiarity of the forum with the law that will
govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in]
the application of foreign law.’” Id. (quoting In re Volkswagen AG, 371 F.3d at 203).
Considering these factors and the disclosure information provided by plaintiff,
Defendants’ Exh. A, Record Doc. No. 12-4, I find that the most appropriate venue for
further proceedings in this BELO lawsuit is the Southern District of Mississippi, Eastern
Division. According to plaintiff’s disclosures, he has lived in Poplarville, Mississippi since
1995 and lived there at the time of the alleged exposure. Poplarville is in Pearl River
County, which is in the Southern District of Mississippi, Southern Division. 28 U.S.C. §
81(a)(6). The federal courthouse for the Southern District of Mississippi, Southern
Division, is in Gulfport, Mississippi, which is 48.7 miles or about a one hour and sixminute drive from Poplarville in the northern part of the Division. Google Maps,
https://www.google.com/maps (last visited Dec. 4, 2017). The courthouse for the Eastern
District of Louisiana in New Orleans is 74.8 miles from Poplarville, or about a one hour
and 13-minute drive. Id. The federal courthouse for the Southern District of Mississippi,
Eastern Division, is in Hattiesburg, Mississippi, which is 39.5 miles or about 42 minutes
4

by car from Poplarville. Id. Thus, although Hattiesburg is only 9.2 miles closer to
Poplarville than Gulfport, it is significantly closer in terms of driving time.
Plaintiff’s disclosure form lists persons who possess information concerning his
injury and/or medical condition. He names his ex-wife, who also resides in Poplarville, and
two of his health care providers, Dr. Andrew Rogness and Dr. Darrell W. O’Quinn,.
Record Doc. No. 12-4, at pp. 8-9.
Most significantly, plaintiff’s health care providers are located in the Eastern
Division of the Southern District of Mississippi. Harriel states in his complaint that Dr.
Rogness first diagnosed him with reactive airways dysfunction syndrome and states in his
disclosure form that he still receives treatment from Dr. Rogness for this condition. Dr.
Rogness is located in Hattiesburg, Mississippi, where the courthouse for the Eastern
Division of the Southern District of Mississippi is located. According to defendants,
plaintiff’s medical records indicate that he had a pulmonary function test in January 2013
at Wesley Medical Center in Hattiesburg. Harriel states that his current primary care
physician, Dr. Angela Jones, is at the “Hattiesburg Clinic” in Poplarville and that his
primary care physician for the past 10 years, Dr. O’Quinn, was at the “Hattiesburg Clinic”
in Purvis, Mississippi, which is 15.2 miles or a 25-minute drive to the federal courthouse
in Hattiesburg and is 64.1 miles or a 1 hour and 17-minute drive to the federal courthouse
in Gulfport. Google Maps, https://www.google.com/maps (last visited Dec. 4, 2017).
Plaintiff identifies Forrest General Hospital in Hattiesburg as the only health care facility
where he has received inpatient treatment within the last ten years. It follows that
5

important and highly relevant documents, specifically plaintiff’s key medical records, and
potential medical witnesses are located in or very close to Hattiesburg. Harriel and his exwife both reside in Poplarville, which, although located in the north end of the Southern
Division of the Southern District of Mississippi, is much closer to Hattiesburg, the seat of
the Eastern Division, than it is to either Gulfport, the seat of the Southern Division, or New
Orleans.
Plaintiff’s mere speculation “[u]pon information and belief . . . that other witnesses
and co-workers will largely be located in the Eastern District of Louisiana,” Record Doc.
No. 14-1 at p. 3, carries no weight in the court’s analysis of the Section 1404(a) factors.
Harriel argues that David R. Dutton, Ph.D., a potential witness identified by defendants in
their disclosures (attached to plaintiff’s motion to compel, Record Doc. No. 14-1 at p. 3),
is located in Michigan and could access New Orleans by commercial airline more
conveniently and cheaply than southern Mississippi. This fact is actually neutral, as neither
the Eastern District of Louisiana nor the Southern District of Mississippi would be
convenient for a Michigan resident. It appears that the only persons for whom the Eastern
District of Louisiana is more convenient than the Southern District of Mississippi are
Harriel’s attorneys, who are located in Covington, Louisiana. Yet, even for them, it is 40.8
miles or a 55-minute drive from Covington to New Orleans. It is 87.8 miles or a 1 hour and
40-minute drive to Hattiesburg, or only about 45 minutes longer than driving to New
Orleans. Google Maps, https://www.google.com/maps (last visited Dec. 4, 2017). None
of these facts weighs in favor of keeping this matter in the Eastern District of Louisiana.
6

Plaintiff’s disclosures also indicate that there is no significant connection between
himself and this case and the Eastern District of Louisiana. He alleges that, between
September and November 2010, he was an oil spill cleanup worker working in Amelia
and/or Morgan City, Louisiana, for an employer located in Illinois, when he was exposed
to oil and other substances that caused his reactive airways dysfunction syndrome. Amelia
and Morgan City are in the Western District of Louisiana. Harriel also states that he was
a clean up worker in Mississippi from December 2010 to May 2011 working for an
employer located in Gulfport. To the extent that his employment records may be relevant
to his lost income or earning capacity claims, he worked during the same period for another
employer in Biloxi in the Southern District of Mississippi in a job unrelated to the oil spill.
His employment as a security guard in New Orleans from August 2015 to February 2016
is also irrelevant to this action, again except to the extent that his employment records may
be relevant to a lost income or earning capacity claim.
Harriel provides no support for his speculation that “the majority of the evidence”
will come from the oil spill’s Area Unified Command, which was located in Robert,
Louisiana and New Orleans, or that “the majority of the non-party witnesses” will be
located in the Eastern District of Louisiana. Plaintiff’s memorandum, Record Doc. No.
14-1 at p. 5. As previously noted, Harriel’s exposure to substances that allegedly caused
his reactive airways dysfunction syndrome occurred in the Western, not the Eastern,
District of Louisiana. Significantly, none of his medical care providers are located in the

7

Eastern District of Louisiana. All of them are located within the Southern District of
Mississippi, as are plaintiff and his ex-wife.
As to the other factors, the state of Mississippi has localized interests in seeing that
its citizens are able to litigate their tort claims in courts located in Mississippi. While it is
true that this court has superior knowledge of the general circumstances of the spill and its
aftermath, it has no special knowledge of the material facts and limited “issues to be
litigated,” as defined in the BELO portion of the Medical Benefits Class Action Settlement
Agreement, MDL No. 2179, Record Doc. No. 6427-1 at pp. 69-70, relating to this
plaintiff’s particular claims, including his individual exposure, the facts of his diagnosis,
his work in the Louisiana and Mississippi spill cleanup, the causation of his alleged medical
conditions or the amount of his compensatory damages, if any. These are all matters with
which whatever judge in this district to whom this case might be reallotted if it were to
remain here would have to become familiar, a process that the court in Mississippi is
equally equipped to manage. Certainly, plaintiff is in no way prejudiced by having to
pursue his case in the courthouse in the Eastern Division of the Southern District of
Mississippi, which is much nearer to his home than the Eastern District of Louisiana, and
where any inconvenience to his doctors presented by the need for them to provide evidence
will be minimized.
For the foregoing reasons, I find that venue is both proper and most appropriate in
the Southern District of Mississippi, Eastern Division. The convenience of the parties and
witnesses and the interests of justice warrant transfer of this case. A magistrate judge is
8

authorized to transfer a case of this sort to another district. Balawajder v. Scott, 160 F.3d
1066, 1067 (5th Cir. 1999). Accordingly,
IT IS ORDERED that the instant matter be TRANSFERRED to the United States
District Court for the Southern District of Mississippi, Eastern Division.

6th
New Orleans, Louisiana, this _________ day of December, 2017.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
CLERK TO NOTIFY:
HON. CARL J. BARBIER

9