The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSE ARIAS-HENRIQUEZ CIVIL ACTION
VERSUS NO. 19-9497
BP EXPLORATION AND PRODUCTION, INC. SECTION: “G”(5)
et al
ORDER AND REASONS
Before the Court is Plaintiff Jose Arias-Henriquez’s (“Plaintiff”) “Motion for a
Continuance.”1 In the motion, Plaintiff requests that the Court continue all pretrial and trial
deadlines because of COVID-19 delays.2 Defendants BP Exploration & Production Incorporated
and BP American Production Company (collectively, “BP”) oppose the motion.3 Considering the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
grants the motion.
I. Background
This case arises out of the Deepwater Horizon oil spill that occurred on April 20, 2010.4
On January 11, 2013, United States District Judge Carl J. Barbier, who presided over the
multidistrict litigation arising out of the Deepwater Horizon incident, approved the Deepwater
1 Rec. Doc. 18.
2 Id.
3 Rec. Doc. 20.
4 Rec. Doc. 1.
Horizon Medical Benefits Class Action Settlement Agreement (“MSA”).5 The MSA includes a
Back-End Litigation Option (“BELO”) that allows certain class members, including clean-up
workers who follow certain procedures set forth in the MSA, to sue BP for later-manifested
physical conditions.6
On April 17, 2019, Plaintiff filed a BELO Complaint in this Court.7 In the Complaint,
Plaintiff alleges that the Deepwater Horizon oil spill exposed him to “oil, dispersants, and other
harmful chemicals” while he performed duties as a “Clean-up Worker.”8 That exposure allegedly
caused Plaintiff to suffer permanent injuries, including Esophageal Reflux.9
On August 21, 2019, this case was transferred from Judge Barbier (Section “J” of this
Court) to Chief Judge Nannette Jolivette Brown (Section “G” of this Court).10 On September 25,
2019, the Court issued a scheduling order setting this case for trial on September 21, 2020.11 On
June 2, 2020, Plaintiff filed the instant motion requesting a new scheduling order continuing all
pretrial and trial deadlines.12 On June 10, 2020, BP filed an opposition to the instant motion.13
5 See Brown v. BP Expl. & Prod. Inc., 2019 WL 2995869, at *1 (E.D. La. July 9, 2019).
6 Id.
7 Rec. Doc. 1.
8 Id. at 5–6.
9 Id. at 6.
10 Rec. Doc. 6.
11 Rec. Doc. 10.
12 Rec. Doc. 18
13 Rec. Doc. 20.
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
Plaintiff requests that the Court issue a new scheduling order—continuing all pretrial and
trial deadlines—for the following reasons.14 First, Plaintiff states that his counsel’s law firm
required employees to follow countermeasures to prohibit the spread of COVID-19.15 These
countermeasures allegedly have caused an “unprecedented upheaval” in his counsel’s
workplace.16 Second, Plaintiff states that his expert toxicologist has a familial issue involving
COVID-19, which delayed her expert report for this case.17 Plaintiff offers to provide more
information regarding the familial issue in a confidential setting.18
Third, Plaintiff states that the delay in preparing this case is not his fault.19 Plaintiff contends
that he “demonstrated due diligence in prosecuting this case,” but the COVID-19 pandemic
caused unprecedented challenges.20 For instance, Plaintiff’s counsel has had difficulty scheduling
Plaintiff’s deposition due to the effects of the COVID-19 pandemic.21 Finally, Plaintiff states that
BP will not suffer undue prejudice if the Court issues a new scheduling order continuing pretrial
and trial deadlines.22
14 Rec. Doc. 18-1.
15 Id. at 3.
16 Id.
17 Id. at 2 n.1.
18 Id.
19 Id. at 3.
20 See id.
21 Id. at 4 n.2.
22 Id. at 4.
B. BP’s Arguments in Opposition to the Motion
BP contends that they are sympathetic to the challenges imposed by the COVID-19
pandemic.23 Yet BP states that requests for continuances should be evaluated on a case-by-case
basis.24 For the following reasons, BP argues that Plaintiff fails to show the required “good cause”
for a continuance.25
First, BP states that Plaintiff’s motion mainly “rests on the generic proposition that
deadlines should be extended because [COVID-19] is a public health concern.”26 BP states that
the “government’s easing of Covid-related restrictions foretells an improvement in conditions,
not a worsening.”27 Second, BP states that the Plaintiff’s expert need not conduct field work in
this case.28 BP contends that Plaintiff’s expert may complete her expert report through telephone
calls and emails.29
Third, BP suggests that Plaintiff’s honest reason for needing a continuance is that Plaintiff’s
counsel and his expert are overwhelmed by the number of BP cases they are litigating in federal
court.30 BP points out that Plaintiff’s expert toxicologist produced three lengthy expert reports in
May and June of 2020.31 Finally, BP contends that Plaintiff’s counsel has not been diligently
23 Rec. Doc. 20 at 1.
24 Id.
25 Id. at 2–3.
26 Id. at 3.
27 Id.
28 Id.
29 Id.
30 Id. at 4.
31 Id. at 4–5.
preparing this case because he has not yet propounded discovery requests.32 For these reasons,
BP concludes that Plaintiff’s request for a continuance should be denied.33
III. Legal Standard
Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order “may be modified
only for good cause and with the judge’s consent.”34 To demonstrate good cause, the party
seeking to modify the scheduling order has the burden of showing “that the deadlines cannot
reasonably be met despite the diligence of the party needing the extension.”35 The Fifth Circuit
has enumerated “four relevant factors to consider when determining whether there is good cause
under Rule 16(b)(4).”36 Those four factors include “(1) the explanation for the failure to timely
[comply with the scheduling order]; (2) the importance of the [modification]; (3) potential
prejudice in allowing the [modification]; and (4) the availability of a continuance to cure such
prejudice.”37
“When the question for the trial court is a scheduling decision, such as whether a
continuance should be granted, the judgment range is exceedingly wide, for, in handling its
calendar and determining when matters should be considered, the district court must consider not
only the facts of the particular case but also all of the demands on counsel’s time and the court’s
32 Id. at 5.
33 Id. at 6.
34 Fed. R. Civ. P. 16(b)(4).
35 Filgueira v. U.S. Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (per curiam) (internal quotation
marks and citation omitted).
36 Squyres v. Heico Companies, L.L.C., 782 F.3d 224, 237 (5th Cir. 2015).
37 Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010) (internal quotation marks
and citation omitted).
[time].”38 Simply put, whether to grant or deny a continuance is within the sound discretion of
the trial court.39
IV. Analysis
The Court will now consider each good-cause factor in turn. First, Plaintiff sufficiently
explains why he cannot meet the deadlines in the current scheduling order. Plaintiff states that
the COVID-19 pandemic—and the required countermeasures—caused an “unprecedented
upheaval” in his counsel’s workplace.40 Plaintiff also states that the COVID-19 pandemic
adversely affected his expert toxicologist, Dr. Patricia Williams.41 Plaintiff represents that Dr.
Williams has experienced a familial issue related to COVID-19, which has delayed her expert
report for this case.42
Second, the importance of the continuance is apparent. BP concedes that several district
courts have granted BP’s motions for summary judgment in similar BELO cases when the
plaintiff did not timely provide an expert toxicologist’s report.43 If the Court does not grant
Plaintiff’s request for a continuance, his case will be severely prejudiced.44
38 HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 549 (5th Cir. 2000) (quoting Fontenot v.
Upjohn Co., 780 F.2d 1190, 1193 (5th Cir. 1986)). The Fifth Circuit does not “substitute [its] judgment
concerning the necessity of a continuance for that of the district court” unless “the complaining party
demonstrates that it was prejudiced by the denial.” Id. (quoting Fontenot, 780 F.2d at 1194).
39 United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996).
40 Rec. Doc. 18-1 at 3.
41 Id. at 2.
42 Id. at 2 & n.1. BP incorrectly states that Plaintiff’s argument “rests on the generic proposition that
deadlines should be extended because [COVID-19] is a public health concern.” Rec. 20 at 3. Plaintiff
explains how the COVID-19 pandemic affected both his counsel and expert in preparing the instant case.
Rec. Doc. 18; Rec. Doc. 18-1.
43 Rec. Doc. 20 at 4 n.6.
44 Plaintiff states that the instant toxic-tort case requires “extensive scientific preparation.” Rec. Doc. 18-1
at 3. Plaintiff also states that the COVID-19 pandemic has delayed Dr. Williams’ necessary expert report.
Third, despite BP opposing Plaintiff's continuance request during the COVID-19
pandemic, BP fails to explain a single prejudicial effect that a continuance would affect upon
them.* Lastly, a continuance of all deadlines will be granted to cure any potential prejudice
caused by the delay in Plaintiffs ability to produce his expert report. Considering these factors
and each party’s arguments, Plaintiff has demonstrated the required good cause under Federal
Rule of Civil Procedure 16(b)(4).*
Y. Conclusion
Considering the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Jose Arias-Henriquez’s “Motion for a
Continuance”*’ is GRANTED.
IT IS FURTHER ORDERED that the parties must contact the Court’s case manager by
July 6, 2020 to conduct a scheduling conference to set a new trial date and new pretrial deadlines.
NEW ORLEANS, LOUISIANA, this 23rd day of June, 2020.
NANNETTE JOLEYVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
Id. at 2.
45 Rec. Doc. 20.
46 The Court considered BP’s argument that Plaintiff truly needs the continuance because his counsel and
his expert are overwhelmed by the number of BELO cases that they are litigating in federal court. In support,
BP points out that Dr. Williams produced three lengthy expert reports in May and June of 2020.
BP’s argument is unpersuasive. The mere fact that Dr. Williams completed three expert reports does not
suggest that she was not hindered by COVID-19. Dr. Williams may have been able to complete many more
expert reports—in addition to the three reports mentioned by BP—if not for the COVID-19 pandemic.
47 Rec. Doc. 18.