Federal judge stays worker's suit claiming injuries from cleanup following Deepwater Horizon spill

By Karen Kidd | Feb 18, 2019

NEW ORLEANS – The U.S. District Court for the Eastern District of Louisiana recently granted a stay in lawsuit filed a Deepwater Horizon oil spill cleanup worker against two BP subsidiaries over illnesses he claims were brought on by exposure to crude oil and other hydrocarbons.

In a 14-page ruling filed Feb. 11, U.S. District Court Chief Judge Nanette Jolivette Brown granted plaintiff Ermid Avila's request for a stay in his litigation against BP Exploration & Production Inc. and BP America Production Company. Brown said she would use the court's discretion to enter the stay pending a claims administrator's decision whether Avila's second notice of intent to sue complies with Deepwater Horizon Medical Benefits Class Action Settlement Agreement (MSA).

The second lawsuit would also be pending mediation of claims raised in Avila's second lawsuit.

Avila filed his first lawsuit in June claiming exposure during his approximately 13-month-long cleanup job following the Deepwater Horizon oil spill in April 2010 caused his now chronic conjunctivitis and pharyngitis, according to background portions of Brown's order. Avila brought the action under the MSA's back end litigation option, which provides the sole remedy to oil spill clean-up workers to sue.

Avila asked for the stay saying additional later-manifested physical conditions (LMPCs) could be added and that the stay would "aid the court in efficiently adjudicating all claims," the order said.

In August, Avila submitted a new notice of intent to sue to the claims administrator about two additional LMPCs and if the administrator finds the notice complies with the MSA, BP could decide whether to mediate claims in the amended complaint.

BP opposed the stay, saying "the purported ground for the motion is factually inaccurate and legally without merit," the order said. The two additional LMPCs Avila wants to add in an amended complaint are not new conditions because Avila listed both on the medical form he submitted with his original notice of intent to sue, according to the order.

"Defendants further assert that plaintiff has not satisfied the legal burden to prove that a stay is warranted," the order said. "Defendants argue that legally, plaintiff's motion does not cite authority or give arguments regarding the legal standard or how it is satisfied in this case. Defendants also contend that one of the factors a court considers when determining whether to grant a stay is possible hardship or inequity on the moving party if a stay is not granted."

Brown countered that BP was incorrect in its interpretation of a ruling in the U.S. Court of Appeals for the 5th Circuit that established petitioners can not raise a legal argument for the first time in their reply briefs on appeal.

"The Fifth Circuit has not stated that parties may not present new arguments in replies to district court motions," Brown said in her order. "Further, though plaintiff did not include the legal standard for a stay in his initial motion, plaintiff's arguments for why he would face inequity or hardship were all included in the initial motion. Thus, defendants' assertion that plaintiff's legal arguments are too late is without merit."

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