The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN B. PETTAWAY CIVIL ACTION
VERSUS NO. 17-3599
BP EXPLORATION & SECTION R (5)
PRODUCTION, INC., ET AL.
TERESA LYNN RIDDELL-HARE CIVIL ACTION
VERSUS NO. 17-4177
BP EXPLORATION & SECTION R (2)
PRODUCTION, INC., ET AL.
STEPHEN NESTLE CIVIL ACTION
VERSUS NO. 17-4463
BP EXPLORATION & SECTION R (4)
PRODUCTION, INC., ET AL.
CARLOS PATTON CIVIL ACTION
VERSUS NO. 17-4473
BP EXPLORATION & SECTION R (5)
PRODUCTION, INC., ET AL.
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 John B. Pettaway, Teresa Lynn Riddell-Hare, Stephen Nestle,
and Carlos Patton each filed lawsuits against defendants based on their
alleged exposure to toxic chemicals following the Deepwater Horizon oil
spill in the Gulf of Mexico.3 Each plaintiff was allegedly involved in cleanup
1 Pettaway, No. 17-3599, R. Doc. 80; Riddell-Hare, No. 17-4177, R. Doc.
70; Nestle, No. 17-4463, R. Doc. 63; Patton, No. 17-4473, R. Doc. 62.
2 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. Pettaway, No.
17-3599, R. Doc. 81 at 1 n.1; Riddell-Hare, No. 17-4177, R. Doc. 71 at 1
n.1; Nestle, No. 17-4463, R. Doc. 64 at 1 n.1; Patton, No. 17-4473, R.
Doc. 63 at 1 n.1.
3 See Pettaway, No. 17-3599, R. Doc. 1; Riddell-Hare, No. 17-4177, R.
Doc. 1; Nestle, No. 17-4463, R. Doc. 1; Patton, No. 17-4473, R. Doc. 1.
or recovery work after the oil spill, and each contends that his or her 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. See Pettaway v. BP Expl. &
Prod., Inc., No. 17-3599, 2022 WL 3369997, at *4 (E.D. La. Aug. 16, 2022);
Riddell-Hare v. BP Expl. & Prod., Inc., No. 17-4177, 2022 WL 3445718, at *4
(E.D. La. Aug. 17, 2022); Nestle v. BP Expl. & Prod., Inc., No. 17-4463, 2022
WL 4132499, at *4 (E.D. La. Sept. 12, 2022); Patton v. BP Expl. & Prod., Inc.,
No. 17-4473, 2022 WL 4104505, at *4 (E.D. La. Sept. 8, 2022). Dr. Cook
was plaintiffs’ only expert on the issue of general causation. Id. 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
4 Id.
5 Id.
complained of. Pettaway, 2022 WL 3369997, at *12 (E.D. La. Aug. 16,
2022); Riddell-Hare, 2022 WL 3445718, at *11 (E.D. La. Aug. 17, 2022);
Nestle, 2022 WL 4132499, at *10 (E.D. La. Sept. 12, 2022); Patton, 2022 WL
4104505, at *10 (E.D. La. Sept. 8, 2022). The Court 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.”
Pettaway, 2022 WL 3369997, at *9 (E.D. La. Aug. 16, 2022); Riddell-Hare,
2022 WL 3445718, at *8 (E.D. La. Aug. 17, 2022); Nestle, 2022 WL 4132499,
at *8 (E.D. La. Sept. 12, 2022); Patton, 2022 WL 4104505, at *8 (E.D. La.
Sept. 8, 2022). 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.6 Id.
Plaintiffs now move under Rule 59(e) for reconsideration of the Court’s
orders excluding Dr. Cook’s testimony and granting defendants’ motions for
6 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 Pettaway, 2022 WL 3369997 (E.D. La. Aug. 16, 2022); Riddell-
Hare, 2022 WL 3445718 (E.D. La. Aug. 17, 2022); Nestle, 2022 WL
4132499 (E.D. La. Sept. 12, 2022); Patton, 2022 WL 4104505 (E.D. La.
Sept. 8, 2022).
summary judgment.7 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 due to
Defendant BP’s alleged mismanagement of biological monitoring.”8 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.”9 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.”10
In response, the BP parties contend that plaintiffs present no new
evidence or argument; rather, they simply rehash the arguments they
7 Pettaway, No. 17-3599, R. Doc. 80; Riddell-Hare, No. 17-4177, R. Doc.
70; Nestle, No. 17-4463, R. Doc. 63; Patton, No. 17-4473, R. Doc. 62.
8 Pettaway, No. 17-3599, R. Doc. 80 at 1; Riddell-Hare, No. 17-4177, R.
Doc. 70 at 1; Nestle, No. 17-4463, R. Doc. 63 at 1; Patton, No. 17-4473,
R. Doc. 62 at 1.
9 Pettaway, No. 17-3599, R. Doc. 80-1 at 3; Riddell-Hare, No. 17-4177,
R. Doc. 70-1 at 3; Nestle, No. 17-4463, R. Doc. 63-1 at 3; Patton, No.
17-4473, R. Doc. 62-1 at 3.
10 Id.
presented in response to defendants’ motions in limine in contravention of
Rule 59(e).11 They further argue that the issue of discovery sanctions is
irrelevant to general causation.12
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
11 Pettaway, No. 17-3599, R. Doc. 81 at 1; Riddell-Hare, No. 17-4177, R.
Doc. 71 at 1; Nestle, No. 17-4463, R. Doc. 64 at 1; Patton, No. 17-4473,
R. Doc. 63 at 1.
12 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. Pettaway,
No. 17-3599, R. Doc. 81 at 2; Riddell-Hare, No. 17-4177, R. Doc. 71 at
2. Because plaintiffs do not argue that they are entitled to an adverse
inference based on “anticipatory spoliation” in their motions, nor do
they explain that theory in any detail or assert its applicability other
than a brief, conclusory conjecture, that theory will not be addressed
here.
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)
(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.13 Plaintiffs advanced this very same
13 Pettaway, No. 17-3599, R. Doc. 80 at 1-3; Riddell-Hare, No. 17-4177,
argument, and highlighted the possibility that defendants would be
sanctioned for their alleged discovery abuses in the Torres-Lugo case, in
response to defendants’ motions in limine. 14 This Court granted
defendants’ motions in the face of plaintiffs’ arguments, and the fact that
sanctions were 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’ motions in limine on the issue of admissibility of Dr. Cook’s
report, or on the merits of defendants’ summary judgment motion. See
Nestle v. BP Expl. & Prod., Inc., No. CV 17-4463, 2022 WL 6550095, at *1
R. Doc. 70 at 1-3; Nestle, No. 17-4463, R. Doc. 63 at 1-3; Patton, No.
17-4473, R. Doc. 62 at 1-3.
14 Pettaway, No. 17-3599, R. Doc. 61 at 6-10; Riddell-Hare, No. 17-4177,
R. Doc. 48 at 6-10; Nestle, No. 17-4463, R. Doc. 51 at 6-11; Patton, No.
17-4473, R. Doc. 48 at 6-11.
(E.D. La. Sept. 12, 2022) (noting that “[t]he additional discovery plaintiff
seeks would not produce information germane to the motions at issue”).
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 decisions.
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,” and that “is not dependent on data from the
particular incident at issue.” Carpenter v. BP Expl. & Prod. Inc., No. 17-
3645, 2022 WL 2757416, at *1 n.1, 6 (E.D. La. July 14, 2022) (Ashe, J.) (“BP’s
alleged failure to monitor the oil-spill workers is irrelevant to the resolution
of these motions.”); see also Beverly v. BP Expl. & Prod. Inc., No. 17-3045,
2022 WL 2986279, at *4 (E.D. La. July 28, 2022) (Barbier, J.),
reconsideration denied, No. 17-3045, 2022 WL 4242515 (E.D. La. Sept. 14,
2022) (“[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
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.
New Orleans, Louisiana, this 10thday of November, 2022.
he Vee
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE