NEW ORLEANS — The U.S. District Court for the Eastern District of Louisiana on March 16 agreed with a magistrate's recommendation to reject BP’s motion to dismiss lawsuits filed by two plaintiffs who allege they became ill after cleaning up the Deepwater Horizon oil rig spill.
BP filed a motion to dismiss the plaintiffs’ suits, stating that the plaintiffs failed to file in a timely manner. The recommendation, written by U.S. Magistrate Joseph Wilkinson Jr., acknowledges this, but states that the plaintiffs were not aware they had to file their Back-End Litigation Option (BELO) lawsuits individually.
“BP has not identified any particular prejudice to it by the delay in the filing of plaintiffs’ individual lawsuits," court documents state.
Fabio Concepcion and Mickey Joseph Thibodaux were cleanup workers for BP Exploration & Production, Inc. Under the BELO lawsuit option, people who develop a "later-manifested medical condition" and do not pursue workman’s compensation can file a lawsuit for those conditions against BP, but must follow certain procedures set forth by BP Deepwater Horizon’s Medical Settlement Agreement. If BP chooses not to mediate, as it did not in Concepcion and Thibodaux’s cases, the complainant has the right to file a BELO against BP in the Louisiana Eastern District Court within 6 months of being notified that BP chose not to mediate the case.
Wilkinson said in the recommendation that the plaintiffs did not know that they were required to file separate lawsuits, and that “their good faith attempt to comply with the Medical Settlement Agreement’s deadline is evident from their incorrect filings three days before the deadline.”
Concepcion and Thibodaux conceded that they received the notice that BP chose not to mediate in November 2017 and did not file their BELO until January 2018, but claim that the court clerk did not tell them when they filed their complaints in the multi-district litigation that they needed to file the lawsuits individually.
Wilkinson wrote in the recommendation that during his research he noted that the records for the multi-litigation show that the clerk’s record entries for the docket were electronically transmitted to BP, but not the plaintiffs’ attorneys.
“Plaintiffs’ attorneys obviously attempted to comply with the deadline and received the court’s acknowledgment that they had paid the filing fees but did not receive notice from the Clerk of their initial erroneous filings of the two instant lawsuits," Wilkinson wrote.
The magistrate recommended that BP’s motion to dismiss be rejected because the two plaintiffs should not be punished for mistakes that their attorneys should have or could have been aware of.
“Concepcion and Thibodaux should not suffer a dismissal with prejudice because of their attorneys’ mistakes," Wilkinson wrote.