Simoneaux et al v. E.I. du Pont de Nemours & Company

Filing 297

RULING granting 274 Motion to Strike. The Clerk of Court is hereby instructed to strike record document 269-16 from the record of these proceedings. Signed by Judge Shelly D. Dick on 11/2/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA,
ET AL. JEFFREY M. SIMONEAUX,
Relator

CIVIL ACTION 12-219
JUDGE: SHELLY D. DICK

VERSUS

MAGISTRATE JUDGE:
STEPHEN RIEDLINGER

E.I. du PONT de NEMOURS AND
COMPANY
RULING
Before the Court is the Plaintiff/Relator, Jeffrey M. Simoneaux’s, Motion to Strike
Document No. 269-16.1 Defendant, E.I. du Pont de Nemours and Co. (“DuPont”), filed
an Opposition2 to which Simoneaux filed a Reply.3
Record Document 269-164 was filed by DuPont in support of its Motion to
Reconsider5 the Court’s Ruling6 which granted relief from Judgment and a new trial
pursuant to FRCP Rule 60(b)(3). DuPont submits that the relevance of the document is
to “show[] when the EPA had knowledge of the issues in [the] suit” thereby relieving
DuPont of any reporting obligation under the Toxic Substances Control Act (TSCA).7
DuPont’s argument is disingenuous at best.
Relator filed this qui tam False Claims Act (FCA) suit in April of 2012.8 After
reviewing the Complaint and investigating the allegations, in September of 2012 the

1

Rec. Doc. 274.
Rec. Doc. 277.
3
Rec. Doc. 283.
4
A “Statement of Interest” by the United States and a supporting Affidavit of the Director for the Office of
Pollution Prevention and Toxics for the EPA.
5
Rec. Doc. 269.
6
Rec. Doc. 263.
7
Rec. Doc. 277, p. 3.
8
Rec. Doc. 1.
2

1

United States notified the Court that it declined to intervene.9 More than two years later
and less than two months before the scheduled trial of this matter, the United States
sought leave to file a “Statement of Interest,” supported by an Affidavit from an official of
the EPA which can best be described as an EPA-proclaimed epistle on the legal rights
and obligations under the TSCA and the FCA.10 This Court denied the Motion and
rejected the proposed filing finding that:
[i]nasmuch as good cause is required to permit an intervention by the
United States at this late stage in the proceedings, a fortiori, good cause
must also be shown to file a “Statement of Interest”. The United States
sets forth no reasons of good cause for the proposed filing. The Court
views the USA's proposed "Statement of Interest" in the nature of an
amicus brief. The US cites no authority for the filing of same.11

At trial, DuPont sought to admit the same “Statement of Interest” and Affidavit.
The Court sustained Relator’s objection on the grounds that the legal opinions and
factual findings espoused therein usurped the provinces of both the Court and the jury.
In what appears to the Court to be an attempt to embellish the record for appeal
purposes, DuPont now attaches the same documents, twice before excluded by the
Court, advancing an argument that the documents are relevant to the “notice issue.”
This explanation is nothing more than a thinly veiled attempt to “stack the deck” of the
record. Nowhere in the Statement of Interest or the accompanying Affidavit is the date
or timeframe of the EPA’s knowledge addressed. Furthermore, as DuPont well knows,
once a qui tam action is filed by a Relator on behalf of the United States to recover
damages, the matter must remain under seal for a 60 day time period to allow the
United States to conduct an investigation and decide whether to intervene as a party
9

Rec. Doc. 6.
Rec. Doc. 90. (under seal).
11
Ruling, Rec. Doc. 100, p.2.
10

2

plaintiff. The record in this matter reveals that, after suit was filed, the government
moved for and was granted an extension of time to investigate and make its intervention
determination.12 Furthermore, in other pleadings13 filed in this matter, DuPont concedes
the obvious fact that the Government received no notice when the qui tam suit was filed.
In the face of these facts, it is ludicrous for DuPont to advance the proposition that a
pleading and Affidavit sought to be filed more than two years later is in anyway
probative of the timing of the government’s knowledge.
Finally, if DuPont honestly believed that the documents, twice excluded by this
Court, were somehow now relevant, DuPont could have sought leave to file the
documents, or filed the documents under seal, or redacted information superfluous to
the alleged purpose for which the documents were offered.
The Motion to Strike14 is GRANTED and the Clerk of Court is hereby instructed to
strike record document number 269-16 from the record of these proceedings.
Signed in Baton Rouge, Louisiana on November 2, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

12

Rec. Doc. 4.
Rec. Doc. 269.
14
Rec. Doc. 274.
13

3