“A party's ‘unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration.’” (quoting ICEE Distribs., Inc. 8 v. J & J Snack Foods Corp., 445 F.3d 841, 847 (5th Cir. 2006))
How later courts described this case
- “A party's ‘unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration.’” (quoting ICEE Distribs., Inc. 8 v. J & J Snack Foods Corp., 445 F.3d 841, 847 (5th Cir. 2006))
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PATRICK COLLIER CIVIL ACTION
VERSUS NO. 17-3131
BP EXPLORATION & SECTION “R” (5)
PRODUCTION, INC., ET AL.
JUDITH TURNER CIVIL ACTION
VERSUS NO. 17-4614
BP EXPLORATION & SECTION “R” (2)
PRODUCTION, INC., ET AL.
VICKEY MICHELLE TURNER CIVIL ACTION
VERSUS NO. 17-4616
BP EXPLORATION & SECTION “R” (1)
PRODUCTION, INC., ET AL.
REGINALD EDWARD JOHNSON CIVIL ACTION
VERSUS NO. 17-4647
BP EXPLORATION & SECTION “R” (2)
PRODUCTION, INC., ET AL.
ORDER AND REASONS
Before the Court are motions for reconsideration filed by each of the above-
1
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
The plaintiffs in the above-captioned cases 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 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 maritime negligence against
1 Collier, No. 17-3131, R. Doc. 59; Turner, No. 17-4614, R. Doc. 52; Turner, No.
17-4616, R. Doc. 53; Johnson, No. 17-4647, R. Doc. 46.
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. Collier, No. 17-3131, R. Doc. 60 at 1 n.1; Turner, No.
17-4614, R. Doc. 53 at 1 n.1; Turner, No. 17-4616, R. Doc. 54 at 1 n.1; Johnson,
No. 17-4647, R. Doc. 47 at 1 n.1.
3 Collier, No. 17-3131, R. Doc. 1; Turner, No. 17-4614, R. Doc. 1; Turner, No.
17-4616, R. Doc. 1; Johnson, No. 17-4647, R. Doc. 1.
4 Collier, No. 17-3131, R. Doc. 1-1 at 7-8; Turner, No. 17-4614, R. Doc. 1-1 at
10-11; Turner, No. 17-4616, R. Doc. 1-1 at 7-8; Johnson, No. 17-4647, R.
Doc. 1-1 at 7-8.
2
defendants.5
In each case, the plaintiffs failed to timely disclose expert reports.6 After
weighing the four factors considered in this Circuit in determining whether to
exclude expert reports on the basis of timeliness, the Court concluded the plaintiffs’
reports should be excluded.7 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.8
Plaintiffs now move under Federal Rule of Civil Procedure 59(e) for
reconsideration of the Court’s orders granting defendants’ motions for summary
judgment and excluding Dr. Cook’s testimony.9 Each of plaintiffs’ motions is
substantively identical. Plaintiffs contend that the Court erred (1) in granting
summary judgment when the affidavit of Dr. Linda Birnbaum created a genuine
issue of material fact, and (2) in excluding plaintiffs’ expert reports on the basis of
5 Collier, No. 17-3131, R. Doc. 29 ¶¶ 19-49; Turner, No. 17-4614, R. Doc. 27 ¶¶
19-49; Turner, No. 17-4616, R. Doc. 28 ¶¶ 19-49; Johnson, No. 17-4647, R.
Doc. 17 ¶¶ 19-49.
6 Collier, No. 17-3131, R. Doc. 51; Turner, No. 17-4614, R. Doc. 45; Turner,
No. 17-4616, R. Doc. 46; Johnson, No. 17-4647, R. Doc. 39.
7 Collier, No. 17-3131, R. Doc. 57; Turner, No. 17-4614, R. Doc. 50; Turner,
No. 17-4616, R. Doc. 51; Johnson, No. 17-4647, R. Doc. 44.
8 Id.
9 Collier, No. 17-3131, R. Doc. 59; Turner, No. 17-4614, R. Doc. 52; Turner, No.
17-4616, R. Doc. 53; Johnson, No. 17-4647, R. Doc. 46.
3
timeliness because “the late submission . . . was the product of a clerical error, and
. . . d[id] not propound any prejudice upon” defendants.10
In response, the BP parties contend that plaintiffs present no new evidence
or argument; rather, they simply rehash the arguments the Court has already
considered and rejected in contravention of Rule 59(e).11
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 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
10 Id.
11 Collier, No. 17-3131, R. Doc. 60 at 1; Turner, No. 17-4614, R. Doc. 53 at 1;
Turner, No. 17-4616, R. Doc. 54 at 1; Johnson, No. 17-4647, R. Doc. 47 at 1.
4
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 do not address any rule 59(e) factors, and do not demonstrate any
manifest errors of law or fact or present any new evidence. In response to
defendants’ motions for summary judgment, plaintiffs plainly acknowledged that
“[t]he production of expert reports, timely or not, would not change the ultimate
outcome” because “the expert opinions contained in these reports have already
been excluded in other cases and those cases were dismissed.”12 Plaintiffs “merely
request[ed] that the Court’s ruling note for the record [that] the expert reports
12 Collier, No. 17-3131, R. Doc. 51; Turner, No. 17-4614, R. Doc. 45; Turner,
No. 17-4616, R. Doc. 46; Johnson, No. 17-4647, R. Doc. 39.
5
were provided.” 13 Indeed, courts in this district, including this one, have
repeatedly excluded the Cook report submitted by plaintiffs in hundreds of cases,
consistently finding that it is inadmissible because it is unreliable and unhelpful
under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). See, e.g., Carter v. BP Expl. & Prod., Inc., No. 17-3123, 2023
WL 7018420, at *7-9 (E.D. La. Oct. 25, 2023) (Vance, J.) (excluding Cook report
as unreliable and unhelpful and noting that “this Court and others in this district
have excluded this version of Dr. Cook's report for similar reasons”); Spencer v. BP
Expl. & Prod., Inc., No. 17-4253, 2023 WL 3737914, at *7-9 (E.D. La. May 31, 2023)
(Vance, J.) (same); Treme v. BP Expl. & Prod., Inc., No. 17-4269, 2023 WL
3737919, at *7-9 (E.D. La. May 31, 2023) (Vance, J.) (same); see also Pennington
v. BP Expl. & Prod., Inc., No. 17-4280, 2023 WL 6216572, at *2 (E.D. La. Sept. 25,
2023) (Zainey, J.) (noting that there is a “legion of cases in this district that have
rejected Dr. Cook's various reports” and that “no judge has accepted any version of
the reports in any B3 case”); Walker v. BP Expl. & Prod., Inc., No. 17-3622, 2023
WL 4586748, at *3 n.27 (E.D. La. July 18, 2023) (Milazzo, J.) (“In over 300 cases,
ten judges of this district have reviewed [a version of] Dr. Cook's report . . . and
excluded [it] as unreliable and unhelpful.”).
13 Id.
6
Now plaintiffs contend they are entitled to reconsideration of this Court’s
orders because the Court erred in granting summary judgment when the affidavit
of Dr. Linda Birnbaum created a genuine issue of material fact, and in excluding
plaintiffs’ expert reports because “the late submission of general and specific
causation reports was the product of a clerical error, and because such submission
d[id] not propound any prejudice upon BP.”14
Plaintiffs had the opportunity to advance the argument that Dr. Birnbaum’s
affidavit created a genuine issue of material fact in their oppositions to defendants’
summary-judgment motions, but declined to do so.15 See Fairley v. Wal-Mart
Stores, Inc., No. 15-0462, 2016 WL 2992534, at *2 (E.D. La. May 24, 2016) (“[I]t
is well-settled that motions for reconsideration should not be used to raise
arguments that could, and should, have been made before entry of an order.”).
Further, like the Cook report, Dr. Birnbaum’s affidavit has been considered and
rejected in hundreds of cases by multiple judges in this district, including this one.
See, e.g., Anderson v. BP Expl. & Prod., Inc., No. 17-3024, 2023 WL 7018387, at
*9 (E.D. La. Oct. 25, 2023) (Vance, J.) (“As other sections of this court have noted,
Dr. Birnbaum's affidavit ‘neither cures nor explains the deficiencies in [Dr. Cook's]
14 Collier, No. 17-3131, R. Doc. 59; Turner, No. 17-4614, R. Doc. 52; Turner,
No. 17-4616, R. Doc. 53; Johnson, No. 17-4647, R. Doc. 46.
15 Collier, No. 17-3131, R. Doc. 51; Turner, No. 17-4614, R. Doc. 45; Turner, No.
17-4616, R. Doc. 46; Johnson, No. 17-4647, R. Doc. 39.
7
report.’” quoting Griffin v. BP Expl. & Prod., Inc., No. 17-3244, 2023 WL 183894,
at *5 (E.D. La. Jan. 13, 2023) (Ashe, J.)); Robertson v. BP Expl. & Prod., Inc., No.
17-4573, 2023 WL 5293938, at *9 (E.D. La. Aug. 17, 2023) (Vance, J.) (same);
Brown v. BP Expl. & Prod., Inc., No. 17-3519, 2023 WL 4210026, at *9 (E.D. La.
June 27, 2023) (Vance, J.) (same); Ramey v. BP Expl. & Prod., Inc., 2023 WL
2430041, at *9 (E.D. La. Mar. 9, 2023) (Vance, J.) (same); see also Pennington,
2023 WL 6216572, at *2 (noting that Dr. Birnbaum “is not a medical doctor” and
that “[t]his Court has previously rejected the Birnbaum affidavit (as have the other
judges of this district) as being insufficient to overcome the obstacles with Dr.
Cook's causation report”); Williams v. BP Expl. & Prod., Inc., Nos. 17-3414 & 17-
3637, 2023 WL 3316357, at *2 n.1 (E.D. La. Feb. 14, 2023) (Zainey, J.) (“[L]ike B3
plaintiffs before other judges in this district, the plaintiffs . . . have . . . attach[ed]
to their oppositions an affidavit executed by Dr. Linda Birnbaum . . . For the same
reasons that other judges were unmoved by these additions, this Court is likewise
unpersuaded.”). Dr. Birnbaum’s affidavit does not constitute new evidence
justifying reconsideration under Rule 59(e). See Molina v. Equistar Chemicals
LP, 261 F. App’x 729, 733 (5th Cir. 2008) (“A party's ‘unexcused failure to present
evidence available at the time of summary judgment provides a valid basis for
denying a subsequent motion for reconsideration.’” (quoting ICEE Distribs., Inc.
8
v. J & J Snack Foods Corp., 445 F.3d 841, 847 (5th Cir. 2006))).
Plaintiffs likewise fail to establish that this Court’s orders work a manifest
injustice. While plaintiffs contend that their failure to timely submit expert
reports was “the product of clerical error,” they also acknowledge that the Court’s
decisions to grant summary judgment and exclude the Cook report on the basis of
timeliness worked little prejudice to them, since the reports “would not change the
ultimate outcome” and the “expert opinions contained in [plaintiffs’] reports have
already been excluded in other cases and those cases were dismissed.”16 But
granting reconsideration would result in prejudice to defendants, as it would delay
the resolution of this matter and result in increased costs associated with litigation,
including relitigating the motion for summary judgment that plaintiffs declined to
meaningfully oppose at the appropriate time. See Tucei v. BP Expl. & Prod., Inc.,
No. 22-78, 2023 WL 322497, at *2 (S.D. Miss. Jan. 19, 2023) (noting that while
defendants are involved in “numerous other oil spill cases,” delaying resolution
and increasing cost associated with litigation still constitutes prejudice). Further,
plaintiffs do not point to any intervening changes in controlling law. The Court
finds no justification for providing plaintiffs with the “extraordinary remedy” of
reconsideration under Rule 59(e). Templet, 367 F.3d at 479.
16 Id.
9
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motions for reconsideration are
DENIED.
New Orleans, Louisiana, this 10th day of January, 2024.
Vorer
SARAH 8S. VANCE
UNITED STATES DISTRICT JUDGE
10