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

Filing 299

RULING denying 269 MOTION for Reconsideration of the Court's 263 RULING granting a relief from Judgment and ordering a new trial. 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 Defendant, E.I. DuPont de Nemours and Co.’s (DuPont)
Motion to Reconsider Ruling under Rule 59(e).1 DuPont moves the Court to reconsider
and vacate its Ruling granting Relief from Judgment Under Rule 60(b)(3).2 The Motion
is opposed3 by the Realtor, Jeffrey M. Simoneaux.
I.

BACKGROUND AND HISTORY
Relator, a former DuPont employee, sued DuPont under the qui tam provision of

the False Claims Act (“FCA”).4

Simoneaux claimed that DuPont violated the FCA

because it failed to comply with its obligation under 15 U.S.C. § 2607 of the Toxic
Substances and Control Act (“TSCA”) to report releases of SO2, SO3, and sulfuric acid
at its Burnside Louisiana Plant to the Environmental Protection Agency (EPA).
DuPont’s Burnside facility manufactures and/or processes sulfur trioxide (SO3),
sulfur dioxide (SO2), and sulfuric acid. There is no dispute that, during the relevant time
period, DuPont experienced leaks of SO2, SO3, and sulfuric acid from its process

1

Rec. Doc. 269.
Rec. Doc. 263.
3
Rec. Doc. 285.
4
31 U.S.C. §3729(a)(1)(G).
2

equipment at its Burnside facility. It was also undisputed that “an exposure to sulfur
dioxide, sulfur trioxide or sulfuric acid in sufficient dose and duration can cause human
health effects, and that those effects have been known for years generally in the
scientific community”.5 Furthermore, SO2 and SO3 are known to be carcinogenic and
are listed under the TSCA.
To address its leaking process equipment, pending a more permanent solution,
DuPont engineered a vacuum hose and piping system designed to capture the sulfuric
gases leaking from its equipment. Simoneaux disputed the efficacy of DuPont’s leak
mitigation/capture system contending that DuPont had an obligation to report the
sulfuric gas leaks at its Burnside facility to the EPA. According to Simoneaux, by failing
to report leaks to the EPA under TSCA, DuPont avoided or decreased monetary
penalties owed to the Government, thereby violating the FCA.
After a 2-week trial, the jury returned a verdict for DuPont and the Court entered
Judgment6 in accordance with the verdict. Several months later, Simoneaux discovered
evidence produced by DuPont in a related case.

Based on this newly discovered

evidence, and among other relief requested, Simoneaux moved for relief from the
Judgment under FRCP Rule 60(b)(3).7

The Court found that DuPont’s failure to

produce certain evidence pertaining to leak calculations and an OSHA Citation was
misconduct for purposes of Rule 60(b)(3) which prevented the Relator from fully and
fairly presenting his case. The Court granted the Relator’s motion, vacated the verdict,

5

Rec. Doc. 53-1, p. 7.
Rec. Doc. 212.
7
Rec. Doc. 241.
6

and ordered a new trial.8 DuPont seeks reconsideration9 of the Court’s Rule 60(b)(3)
Ruling vacating the verdict.
II.

LAW AND ANALYSIS
“A Rule 59(e) motion ‘calls into question the correctness of a judgment’”.10 Relief

from a judgment is warranted under Rule 59(e) when the moving party demonstrates a
mistake of law or fact.11 “Relief under Rule 59(e) is an extraordinary remedy that should
be used sparingly.”12 As previously stated, the Court was loathe to set aside the jury’s
verdict and remains mindful that interference with a jury verdict is an extraordinary
measure calling for the “highest level of restraint”.13 Accordingly, the Court has again
carefully and scrupulously examined the evidence and the exhibits offered by the
parties in support of and in opposition to the instant Rule 59(e) Motion. The Court has
also laboriously studied and considered the arguments advanced by the parties.
A. The Leak Calculations
It is undisputed that DuPont did not produce documents bearing bates numbers
DLF0001891 – DLF0000189914 in the above-captioned litigation. These documents
were produced by DuPont in other related litigation and discovered by the Relator after
trial in this case.15 The documents at issue (DLF0001891 – DLF00001899) contain data

8

Rec. Doc. 263.
Rec. Doc. 269.
10
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp.,
303 F.3d 571, 581 (5th Cir. 2002)).
11
Robicheaux v. Caldwell, 986 F. Supp. 2d 749, 754 (E.D. La. 2013), reconsideration denied (Jan. 13,
2014).
12
Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola Bottling Co. United, Inc.,
No. 04-30142, 2004 WL 2554847, at *4 (5th Cir. Nov. 11, 2004) citing Templet, 367 F.3d at 479.
13
Rec. Doc. 263, citing, Starns v. Avent, 96 B.R. 620, 633-34 (M.D. La. 1989); Thomas v. City of New
York, 293 F.R.D. 498,507 (S.D.N.Y. 2013).
14
Rec. Doc. 213-3.
15
DuPont produced the subject documents in the Leo Scott case (3:13cv00741), The Scott case is
related because it involves claims that DuPont took adverse employment actions against Scott in violation
of 31 U.S.C. § 3730(h) of the Federal False Claims Act because of his participation in Simoneaux’s qui
9

pertaining to two leak calculations.16 DuPont argues that the data and calculations
reflected on DLF0001891 – 0001899 are identical to data and calculations contained on
documents bearing different bates numbers that DuPont did produce to the Relator in
this litigation. DuPont maintains that “the information contained in the [subject]
documents is not new and was in Realtor’s possession during discovery and trial.”17
DuPont submits that “the record unmistakably shows that these ‘new’ calculations were
actually produced to Relator during discovery, were used by Relator’s counsel to
question witnesses during depositions, and were available to Relator during trial”.18
Essentially, DuPont posits that if the substantive information was produced by DuPont
and available to Relator during pretrial proceedings and trial, although bearing different
identifying numbers, there was no discovery misconduct which would warrant new trial
under Rule 60(b)(3). In short, if Relator had the substantive information, Relator was
not prevented from fully and fairly presenting his case.
The Court agrees that not every technical discovery violation warrants a new
trial.19 Hence, if the underlying data and information was produced in discovery, albeit
bearing different numerical identifiers, Realtor was not prevented from fully and fairly
presenting his case and the verdict was not unfairly obtained. However, such is not the
case here.

tam action. Scott allegedly participated in a deposition regarding Simoneaux’s claims in the instant
matter. The plaintiff in the Scott case is represented by the same counsel as the Plaintiff/Relator in the
above captioned matter.
16
DLF0001891-DLF0001894 reflect calculations pertaining to emissions from a .77 inch diameter hole;
DLF0001895-DLF0001899 reflect calculations pertaining to emissions from a 1.125 square inch hole.
17
Rec. Doc. 269-1, p. 3.
18
Id. at p. 1.
19
The Court denied Relator’s Rule 60(b)(3) Motion for New Trial on the grounds that DuPont failed to
produce Engineering Standards and Management of Change documents because they were immaterial
and irrelevant and, thus, did not affect Relators ability to fully and fairly present his claims. Rec. Doc. 263.

DuPont submits that the data, calculations and information on DLF0001891 –
DLF0001894 (pertaining to a .77 inch leak calculation)20 is the same as the data,
calculations and information contained on DSF000083,21 which was produced by
DuPont in this case and offered by Relator at trial as Pl. Ex. 130. DuPont submits that
DLF0001895 – DLF0001899 (pertaining to a 1.125 inch leak calculation),22 contains
identical data, calculations and information as contained on DSF0001036,23 produced
by DuPont in this case and identified as Pl. Ex. 283.24
A careful review and comparison of the documents not produced by DuPont
(DLF0001891-1899) to the documents produced by DuPont (DSF000083 and
DSF0001036) belie DuPont’s contention.
Foremost, the information contained on DLF0001894 and DLF0001899, not
produced by DuPont, is nowhere revealed on the documents that DuPont did produce.
DLF0001894 and DLF0001899 contain notes of assumptions, measurements and
values used by the DuPont employees who made the subject leak calculations. It is
axiomatic that the calculations are only as accurate as the assumptions and data values
used. Relator was denied the opportunity to challenge the assumptions and values
underlying the computations. For example, DuPont calculated a total SO2 and SO3
release volume from a 1.125 square inch leak area over a 10 hour period.25 However,
DLF0001899, which was never produced, even under a different numbered identifier,
reveals that the leak calculation assumed a 70% capture rate. Relator was prevented
20

Rec. Doc. 269-2, pp. 1-4.
Rec. Doc. 269-3.
22
Rec. Doc. 269-9, pp. 1-5.
23
Rec. Doc. 269-11, p. 6.
24
Pl. Ex. 283 was not offered at trial but is reflected on Relator’s Proposed Pretrial Order. Rec. Doc. 82.
25
DLF0001895 (Rec. Doc. 213-3; Rec. Doc. 269-9) not produced by DuPont but which is the same
calculation reflected on DSF0001036 (Rec. Doc. 269-10) which was produced by DuPont.
21

from challenging the efficacy of this assumption and, thus, precluded from challenging
the leak volumes.

According to DuPont, “dose makes the poison.”

Relator was

deprived of discoverable evidence which showed that DuPont was assuming a 70%
dose reduction. Justice and fair play dictate that the Relator be given an opportunity to
contest the calculations based on the assumptions applied by DuPont but never
revealed to Relator.
B. OSHA Citation
On November 14, 2014, approximately 2 months before trial, DuPont was cited
and fined by OSHA for five (5) violations of the Occupational Health and Safety Act of
1970.26 The OSHA Citation was responsive to discovery requests by Relator27 but was
never produced by DuPont, despite Relator’s specific request that DuPont supplement
discovery with any OSHA related documents.28 Significantly, OSHA charged DuPont
with a violation deemed by OSHA to be “Serious”. Specifically, OSHA cited DuPont for
failing to “ensure that the [system used] to mitigate S02 and S03 leaks from process
equipment … [was] suitable for application in a process characterized by high
temperatures and the formation of acid in the presence of moisture”.29
DuPont argues that, as an FCA claim, the only relevant time frame is before suit
was filed. Citing 15 U.S.C.A. § 2607(e),30 DuPont argues that it was under no legal

26

“Citation and Notification of Penalty”, issued to DuPont, Burnside facility on November 14, 2014. Rec.
Doc. 241-4, hereinafter “OSHA Citation”.
27
Relator’s Request No. 47 called for DuPont to “Produce all documents provided to or received from
OSHA by DuPont concerning gas leaks and/or employee exposure or potential exposure to S02 and/or
S03 at the DuPont Burnside facility between December 1, 2011 and the present.” (Rec. Doc. 213-9).
28
Relator’s request stated: “Also, I wanted to remind you of DuPont’s obligation to supplement its
production of documents. I imagine there are additional documents pertaining to the hose system, gas
leaks, the recent visit by OSHA, etc. that are responsive to our requests.” Rec. Doc. 213-8.
29
Rec. Doc. 241-4, OSHA Citation Item Number 3.
30
(“Any person who manufactures, processes, or distributes in commerce a chemical substance or
mixture and who obtains information which reasonably supports the conclusion that such substance or

obligation to report TSCA “substantial risk information” to the EPA, once the EPA had
actual knowledge. DuPont contends that “[a]ny obligation DuPont conceivably had to
notify the EPA of ‘substantial risk information’ under TSCA ceased with the actual notice
given to the United States and EPA”31 by the filing of Relator’s instant suit. Hence,
DuPont submits that “[t]he OSHA Citation in November 2014 adds nothing to the issue
of whether or not DuPont had substantial risk information before the EPA was put on
notice.”32 DuPont’s argument is unpersuasive and illogical.
There is no authority for the proposition that a chemical manufacturer, such as
DuPont, is entitled to be ignorant of “substantial risk information” unless and until a
regulating authority finds issue or concern with its manufacturing process or products.
The relevant inquiry is whether DuPont’s admittedly leaking process equipment,
notwithstanding its mitigation efforts, posed a substantial risk of harm to persons or the
environment triggering an obligation to report the risk to the EPA. If DuPont knew or
should have known that its leak mitigation efforts were unsuitable or ineffective, then
arguably DuPont had a duty to report leaks of chemicals known to be carcinogenic and
known to react with the ambient atmosphere to produce acid rain. The Court finds that
OSHA’s determination that DuPont failed to ensure the suitability of the materials it
utilized in its leak recovery process is probative of whether DuPont knew or should have
known of a substantial risk. DuPont cites no law which suggests that a chemical
manufacturer can plead ignorance of “substantial risk information” unless or until a
regulator takes issue.
mixture presents a substantial risk of injury to health or the environment shall immediately inform the
Administrator of such information unless such person has actual knowledge that the Administrator
has been adequately informed of such information.”) (Emphasis added).
31
Rec. Doc. 269-1 p. 11.
32
Rec. Doc. 269-1 p. 2.

DuPont presented an unmistakable theme at trial which inferred that OSHA
found no fault with DuPont’s leak recovery system.33 At the very least, Relator was
prevented from rebutting DuPont’s inferences that OSHA took no action with evidence
of the OSHA Citation at issue. Likewise, the OSHA Citation would have undoubtedly
provided fertile ground for the cross examination of DuPont’s plant manager, who
testified on direct examination:
Q: And you’ve talked about the fact that OSHA has been made aware of
the leaks by several anonymous calls. Have they taken any action against
the plant in terms of telling the plant these leaks are not safe for
employees to work around?
A: No.34
For the foregoing reasons, DuPont’s Motion for Reconsideration35 of the Court’s
Ruling36 granting a relief from Judgment and ordering a new trial is DENIED.
Signed in Baton Rouge, Louisiana on November 2, 2015.

S

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

33

Rec. Doc. 263, pp. 13-14.
Rec. Doc. 258-3.
35
Rec. Doc. 269.
36
Rec. Doc. 263.
34