United States District Court, E.D. Louisiana
WARREN LESTER, ET AL.
EXXON MOBIL CORP., ET AL.
ORDER & REASONS
HONORABLE ELDON E. FALLON UNITED STATES JUDGE
the Court is the Tuboscope Flight Plaintiffs' motion to
quash the Notice of Video Deposition of Ethan Natelson, M.D.
R. Doc. 689. The motion is opposed. R. Doc. 695. Having
considered the applicable law and the arguments of the
parties, the Court now rules as follows.
has a lengthy procedural history. In 2002, over 600
Plaintiffs filed a single petition (the
“Lester petition”) seeking damages in
Civil District Court for the Parish of Orleans, State of
Louisiana. Since 2002, the state court proceedings have
disposed of various Plaintiffs' claims through
“trial flights, ” settlements, or other
dismissals, such that just over 500 Plaintiffs now remain.
The state court has systemically grouped up to twelve
Plaintiffs' like-claims together for trial flights.
According to Plaintiffs, none of the completed trial flights
have had preclusive effect on subsequent trial flights.
the Plaintiffs included in the Lester petition was
Cornelius Bottley, who died from esophageal cancer in 2012.
On July 16, 2014, three members of his surviving family filed
a separate Bottley action, also in Civil District
Court in Orleans Parish. With an upcoming trial flight, these
Bottley Plaintiffs on July 31, 2014 moved the state
court to transfer and consolidate their case with the
Lester state action. Based on this motion for
consolidation, Bottley Defendant Exxon Mobil Oil
removed both Lester and Bottley to this
Court under the Class Action Fairness Act
(“CAFA”). Plaintiffs moved to remand the cases to
state court. This Court, however, denied remand on October
23, 2014, and consolidated Lester and
Bottley. R. Docs. 45, 46. The Court explained that
Plaintiffs' motion to consolidate in state court
constituted a “proposal for joint trial, ”
particularly where over 500 plaintiffs remained at the time
the motion to consolidate was filed. Thus, CAFA bestowed
federal “mass action” jurisdiction.
appealed this decision, and in June 2018, the Fifth Circuit
upheld this Court's denial of the motion to remand. R.
Doc. 383. Subsequently, on January 31, 2019, Shell moved for
summary judgment; however, after finding there were still
significant issues of material fact regarding Shell's
contribution to Plaintiffs' injuries, the Court denied
Shell's motion. R. Doc. 566.
instant motion relates to the Tuboscope Flight Plaintiffs.
These Plaintiffs are, or assert claims on behalf of, seven
former Tuboscope employees who worked at the Tuboscope pipe
yard in Harvey, Louisiana. These employees allege they were
occupationally exposed to Naturally Occurring Radioactive
Materials (“NORM”) while working at the Tuboscope
Harvey pipe yard, cleaning, inspecting, and/or coating used
oilfield pipes belonging to various Tuboscope customers. The
employees allegedly inhaled NORM-contaminated dust generated
during pipe yard operations and were thereby exposed to
radioactive materials, which have allegedly caused them
various illnesses, fear of cancer and increased risk of
Tuboscope Flight Plaintiffs filed a motion to quash the
Notice of Video Deposition of Ethan Natelson, M.D. R. Doc.
689. In the motion, Plaintiffs assert Defendants unilaterally
issued a notice of video deposition setting Ethan Natelson,
M.D.'s deposition “for all purposes” to take
place in Houston, Texas on August 30, 2019. R. Doc. 689-1 at
1-2. Plaintiffs contend this date is after the deadline set
in the Scheduling Order, which dictates that all discovery
and taking of trial perpetuation depositions must be done by
August 19, 2019. R. Doc. 6891-1 at 1. Moreover, Plaintiffs
argue there was no prior notice or “the courtesy of
checking Plaintiffs' counsel's availability, ”
and no leave of court sought to take the deposition after the
deadline set in the Scheduling Order. R. Doc. 689-1 at 2.
Plaintiffs say they will be “severely prejudiced”
if their counsel is forced to travel to Houston for the
deposition, as “[p]reparation for the deposition will
be extensive and time consuming, along with trial” and
the deposition date is just three weeks before trial. R. Doc.
689-1 at 2. Plaintiffs further contend Defendants made
settlement offers to over 600 of Plaintiffs'
counsels' clients with a response date of August 31,
2019, and on August 20, 2019, Defendants filed
“approximately seventeen motions in limine, motions to
exclude and motions for summary judgment.” R. Doc.
689-1 at 2. Plaintiffs argue it is unreasonable to expect
them to deal with all this work, while also substantively
preparing for Dr. Natelson's out-of-state deposition and
the upcoming trial. R. Doc. 689-1 at 2.
opposition, Defendants argue good cause exists to allow the
trial perpetuation deposition of Dr. Natelson to proceed as
planned for August 30, 2019 in Houston. R. Doc. 695 at 2.
Specifically, Defendants contend Dr. Natelson resides in
Houston, which is outside of the Court's subpoena power,
and he is unavailable for trial due to his professional
responsibilities as a doctor in hematology and internal
medicine. R. Doc. 695 at 1. Defendants state Dr. Natelson
indicated the earliest date he was available for a video
perpetuation deposition was on August 30, 2019 in Houston. R.
Doc. 695 at 2. Defendants argue Plaintiffs' need to
“prepare” for the deposition is not prejudicial,
as Plaintiffs would need to prepare to cross-examine Dr.
Natelson whether he was testifying at a video deposition in
advance of trial or live at trial. R. Doc. 695 at 2.
Moreover, Defendants contend travel to Houston is not an
inconvenience, as the travel time is not long, free wi-fi is
available at both the New Orleans and Houston airports, and
the Falcon Firm has multiple attorneys working on this
matter, so one of them should be available to handle this
deposition. R. Doc. 695 at 3. Defendants also contend they
made settlement offers to Plaintiffs represented by the
Falcon Law Firm on August 6, 2019 because that is when
Defendants learned the Falcon Law Firm allegedly did not make
their clients aware of ongoing settlement negotiations in
this case. R. Doc. 695 at 3. Finally, Defendants say that
responding to the motions they filed on August 20, 2019
should not be considered burdensome to Plaintiffs because
“responding to timely-filed motions is part and parcel
of litigating complicated claims” and “the vast
majority of [the] pretrial motions” Defendants filed
were based on similar motions they filed in the 2014 state
court case. R. Doc. 695 at 4.
final alternative, if the Court quashes this scheduled
deposition, Defendants say they can arrange for Dr. Natelson
to testify via live video link to the courtroom. R. Doc. 695
LAW AND ANALYSIS
16(b) governs the amendment of pleadings after a scheduling
order deadline has expired. S&W Enters., LLC v. S.
Trust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003). Under Federal Rule of Civil Procedure 16(b)(4), a
Court's scheduling order “may be modified only for
good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). To demonstrate good cause for
modifying a scheduling order, the movant must show that
“the deadlines cannot be reasonably met despite the
diligence of the party needing the extensions.”
S&W Enters., LLC, 315 F.3d at 535. When a party
moves to amend the scheduling order, a court must consider
“‘(1) the explanation for the failure to [timely
move for leave to amend]; (2) the importance of the
[amendment]; (3) potential prejudice in allowing the