author: JAMES L. DENNIS, Circuit Judge:

text:
    Mark MCMANAWAY; David Rancourt; Brent Lasher; Jody Aistrop; William Bickell, et al., Plaintiffs-Appellants v. KBR, INCORPORATED; Kellogg Brown & Root Services, Incorporated; KBR Technical Services, Incorporated; Overseas Administration Services, Incorporated; Service Employees International, Incorporated; Halliburton Company; Halliburton Energy Services, Incorporated, Defendants-Appellees Rocky Bixby; Lawrence Roberta; Scott Ashby; Charles Ellis; Matthew Hadley, et al., Plaintiffs-Appellants v. KBR, Incorporated; Kellogg Brown & Root Services, Incorporated; KBR Technical Services, Incorporated; Overseas Administration Services, Incorporated; Service Employees International, Incorporated, Defendants-Appellees
    No. 15-20641
    United States Court of Appeals, Fifth Circuit.
    FILED March 27, 2017
    See also 603 Fed. App’x 605.

      David M. Gunn, Chad Flores, Esq., Beck Redden, L.L.P., Michael Patrick Doyle, Doyle, L.L.P., Houston, TX, Gabriel Adam Hawkins, Cohen & Malad, L.L.P., Indianapolis, IN, for Plaintiffs-Appellants.
    Warren W. Harris, Yvonne Y. Ho, Esq., Bracewell, L.L.P., Houston, TX, for Defendants-Appellees.
    Kurt J. Hamrock, Covington & Burling, L.L.P., Washington, DC, Geoffrey L. Harrison, Esq., Chanler Ashton Langham, Susman Godfrey, L.L.P., Houston, TX, for Defendants-Appellees KBR, Incorporated, Kellogg Brown & Root Services, Incorporated, KBR Technical Services, Incorporated, Overseas Administration Services, Incorporated, Service Employees International, Incorporated.
    M. Randall Jones, Serpe, Jones, Andrews, Callender & Bell, P.L.L.C., Houston, TX, for Defendants-Appellees Halliburton Company, Halliburton Energy Services, Incorporated.
    Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

This toxic tort case presents the question of whether Plaintiffs’ injuries were caused by the alleged hexavalent chromium contamination at an industrial water injection facility in Iraq. Plaintiffs are former American and British soldiers who were assigned to protect employees at the facility. Defendants, KBR, Incorporated and affiliated entities (KBR), were tasked with restoring the facility. Plaintiffs claim that KBR did not responsibly handle the contamination at the facility, leading Plaintiffs to suffer injuries stemming from hexavalent chromium exposure. The district court granted KBR’s motion for summary judgment dismissing Plaintiffs’ claims because of their inability to prove that hexavalent chromium caused their injuries. On appeal, Plaintiffs argue that they adduced sufficient evidence of causation to survive summary judgment. KBR argues that resolution of this case necessarily calls into question non-justiciable military decisions and that Plaintiffs’ claims are therefore barred by the political question doctrine. For the reasons discussed below, we conclude that Plaintiffs’ claims are justiciable, but we AFFIRM the district court’s summary judgment.

I

In March 2003, the United States Army Corps of Engineers (USACE) hired KBR to help restore Iraq’s oil infrastructure following the United States’ invasion as part of Project Restore Iraqi Oil (Project RIO). Pursuant to Task Order 3 (part of KBR’s contract with USACE) KBR was to begin work on a facility after USACE determined conditions were “benign.” Benign conditions meant, among other things, that the site was “cleared of all enemy forces” and “environmental hazards” including nuclear, biological, chemical, and industrial hazards. USACE did not perform an environmental assessment of Qar-mat Ali, a water injection facility that KBR was tasked with restoring, and it is unclear whether USACE declared conditions there benign. Nonetheless, USACE (specifically, Task Force RIO) authorized KBR to start work at Qarmat Ali on May 13, 2003, and KBR began work later that month. Plaintiffs are current or former members of the Army National Guard or the British Royal Airforce who provided military protection for KBR at Qarmat Ali.

The company that operated Qarmat Ali prior to KBR’s arrival onsite used sodium dichromate, an anti-corrosive agent and hexavalent chromium compound, when injecting water into oil reservoirs for the purpose of forcing oil to the surface. The use of sodium dichromate at Qarmat Ali, particularly the improper storage of the substance, led to air and soil contamination. Plaintiffs contend that they suffered injuries as a result of their exposure to sodium dichromate, a known carcinogen and irritant, while working at Qarmat Ali.

In the district court, Plaintiffs adduced evidence that they were exposed to sodium dichromate. For example, they submitted a Royal Airforce report concluding that “operational activity would suggest” that soldiers working at Qarmat Ali were exposed to sodium dichromate, although the extent of the exposure could not “be satisfactorily quantified.” Plaintiffs also submitted a 2008 National Guard memorandum concluding that soldiers at Qarmat Ali “had a high potential for direct exposure,” and an October 2003 report from the Army Center for Health Promotion and Preventive Medicine, concluding that before containment of the chemical, “chromium concentrations exceeded (military) health risk screening values,” and exposure “[pjroba-bly occurred to some degree prior to containment.” Moreover, August 2003 urine and blood sampling of twenty-seven KBR employees who worked at Qarmat Ali showed that four of the tested employees had higher-than-normal levels of chromium in their urine and twenty-three of the tested employees had higher-than-normal levels of chromium in their blood.

Plaintiffs contend that exposure to sodium dichromate was deleterious to their health, both during and after their service at Qarmat Ali. Plaintiff Jody Aistrop observed that “[ejverybody” in his company complained of nosebleeds and rashes and that he experienced such symptoms, as well as gastrointestinal distress. Plaintiff Russell Powell, a medic, observed that he and other soldiers experienced “intense” gastrointestinal problems. Plaintiff Russell Kimberling developed headaches, respiratory problems, diarrhea, skin rashes, and a septal hole. In 2009, Lieutenant Colonel James Gentry died of lung cancer. The Army deemed his death to be “In Line of Duty for Exposure to Sodium Dichromate between June-September 2003.”

In 2010, a group of plaintiffs filed suit in the Southern District of Texas, alleging negligence, gross negligence, fraud, and intentional infliction of emotional distress. Plaintiffs claimed that KBR was aware of the sodium dichromate contamination at Qarmat Ali and failed to take appropriate steps to reduce the risk of harm to the soldiers, to inform the U.S. or British military, or to warn the soldiers who were exposed to the contamination. Plaintiffs claimed that KBR’s tortious actions caused them to suffer, among other ailments, nose bleeds, skin lesions, physical pain, emotional distress, and death.

In the district court, KBR filed a motion to dismiss on the grounds that the case presented a non-justiciable political question and that Plaintiffs’ claims were preempted by federal common law. The court denied this motion. KBR also moved for summary judgment claiming, inter alia, that Plaintiffs could not establish that sodium dichromate caused their injuries. The court granted KBR’s motion for summary judgment, dismissing Plaintiffs’ claims on causation grounds and, separately, granted KBR’s motion for summary judgment, dismissing individual plaintiff Lieutenant Colonel James Gentry’s claims on similar grounds. The court entered judgment in favor of KBR. Plaintiffs timely appealed.

II

We review a district court’s summary judgment decision de novo. Davis v. Fernandez, 798 F.3d 290, 292 (5th Cir. 2015). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reviewing a summary judgment decision, we view all facts in the light most favorable to the non-moving party. See Tolan v. Cotton, — U.S. -, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014). It is not the role of the court to make credibility determinations, or to weigh evidence when ruling on a motion for summary judgment. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, in reviewing expert opinion evidence, “we look to the basis of the expert’s opinion, and not the bare opinion alone.” Wackman v. Rubsamen, 602 F.3d 391, 400 (5th Cir. 2010) (quoting Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005)). “A claim cannot stand or fall on the mere ipse dixit of a credentialed witness.” Guile, 422 F.3d at 227 (quoting Archer v. Warren, 118 S.W.3d 779, 782 (Tex. App. 2003)).

Ill

Before we discuss the merits of the Plaintiffs’ arguments on appeal, we must address a possible jurisdictional bar to our review of this case: the political question doctrine. See Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 943 (5th Cir. 2011); see also Schlesinger v. Reserv ists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

“[T]he purpose of the political question doctrine is to bar claims that have the potential to undermine the separation-of-powers design of our federal government.” Lane v. Halliburton, 529 F.3d 548, 559 (5th Cir. 2008); see Nixon v. United States, 506 U.S. 224, 253, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (Souter, J., concurring in judgment) (observing that the doctrine “deriv[es] in large part from prudential concerns about the respect we owe the political departments”). When a political question “is inextricable from the case at bar,” Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), “a court lacks the authority to decide the dispute before it,” Zivotofsky v. Clinton, 566 U.S. 189, 195, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012). The Supreme Court has explained that a case involves a political question where, inter alia, “there is a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’ ” Id. (quoting Nixon, 506 U.S. at 228, 113 S.Ct. 732).

“[W]ar and foreign policy decisions,” including “decisions whether and under what circumstances to employ military force are constitutionally reserved for [the political] branches.” Lane, 529 F.3d at 559 (citation omitted). However, the political question doctrine does not prevent courts from entertaining every claim involving alleged military wrongdoing. See Gilligan v. Morgan, 413 U.S. 1, 11-12, 93 5.Ct. 2440, 37 L.Ed.2d 407 (1973) (noting that the military’s conduct is not always beyond judicial review); cf. Baker, 369 U.S. at 217, 82 S.Ct. 691 (“The doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ ”). Thus, before declaring a case involving military decision-making to be non-justiciable under the political question doctrine, “a court must undertake ‘a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action.’ ” Lane, 529 F.3d at 559 (quoting Baker, 369 U.S. at 211-12, 82 S.Ct. 691).

In Lane v. Halliburton, this court addressed allegations of fraudulent misrepresentation and negligence by military contractors KBR and Halliburton. Id. at 554. Plaintiffs, former KBR employees, claimed that KBR misrepresented the risks that they would face as truck drivers in Iraq. Id. at 554-55. The panel found that, for the political question doctrine to bar the plaintiffs’ claims, (1) the claims against KBR must “require reexamination of a decision by the military” and (2) “the military decision at issue [must be] insulated from judicial review.” Id. at 560 (quoting McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1359 (11th Cir. 2007)). The Lane court found that, viewing the facts in the light most favorable to the plaintiffs, the plaintiffs’ claims only required the court to analyze KBR’s actions, “which [could] be examined by a federal court without violating the Constitution’s separation of powers.” Id. The court ultimately concluded that the case needed further factual development before it could be determined whether the political question doctrine barred the plaintiffs’ claims. Id. at 554.

Here, Plaintiffs’ claims are directed at private parties, and do not on their face address decisions constitutionally committed to a coordinate branch. Thus, under Lane, KBR must show that the claims will require reexamination of a military decision that is insulated from judicial review. See id. at 560. KBR argues that it would defend against Plaintiffs’ claims by arguing that the military knew of potential sodium dichromate contamination at Qar-mat Ali yet still chose to deploy soldiers there. According to KBR, evaluating this defense would require review of “military wartime decisions” that are demonstrably committed to the Executive Branch. KBR also argues that there are no judicially discoverable and manageable standards for resolving the question of who caused Plaintiffs’ injuries, as “[a]ny trial of this case would necessarily require a jury to scrutinize these military decisions that are inextricably intertwined with KBR’s causation defense.” Further, KBR contends that we should find that the district court erred in denying its motion to designate the United States “military” as a responsible third party under section 33.004 of the Texas Civil Practice and Remedies Code, and claims that designating the United States a responsible third party means that “KBR was entitled to have the jury allocate fault to the military” and that “this suit is not justiciable.” However, as discussed in the following section, Plaintiffs have failed to carry their burden at the summary judgment stage. We will not undertake a searching review of a hypothetical case when, as evidenced by the parties’ briefing of the merits issues before us, this appeal “primarily raise[s] legal questions that may be resolved by the application of traditional tort standards,” Lane, 529 F.3d at 563, which are plainly discoverable and manageable by the judiciary.

IV

To prove their tort claims against KBR — fraud, negligence, gross negligence, and intentional infliction of emotional distress — Plaintiffs must establish that KBR’s conduct caused their injuries. See, e.g., Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 728 (Tex. App. 1996). The district court found that Plaintiffs’ evidence was insufficient to prove causation because their expert’s methodology did not adequately explain the connection between their exposure levels and their injuries and Plaintiffs failed to provide sufficient epidemiological support to show that sodium dichromate exposure caused their alleged injuries. On appeal, Plaintiffs argue that the admission of expert testimony supporting causation bars summary judgment, that their expert’s “differential diagnosis” is sufficient to establish causation, and that lay testimony is sufficient to establish causation for their acute injuries.

To survive summary judgment, Plaintiffs must establish a genuine issue of material fact as to whether exposure to sodium dichromate caused their injuries “based on a reasonable medical probability and scientifically reliable evidence.” Black v. Food Lion, Inc., 171 F.3d 308, 310 (5th Cir. 1999). Plaintiffs must show both that sodium dichromate is capable of causing their alleged injuries (“general causation”) and that it did, in fact, cause their injuries (“specific causation”). See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). It is not enough that Plaintiffs have produced some expert testimony supporting their position, as “the reliability of expert testimony is ... a prerequisite to its legal sufficiency.” Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App. 2007) (citing id.).

Plaintiffs offered expert testimony from Dr. Arch Carson, a medical doctor who specializes in treating individuals “who have been exposed to industrial chemical substances,” and Dr. Herman Gibb, an epidemiologist who has published several influential journal articles concerning the health effects of chromium. Gibb opined to “a reasonable degree of scientific certainty” that the Plaintiffs “have increased risks for a variety of health effects as a result of their exposure to sodium dichro-mate[, including] lung cancer; dermal and respiratory allergic response to chromium; other respiratory effects; and renal, gastrointestinal, and reproductive effects.” In forming his opinion, Gibb examined litigation documents, including Plaintiffs’ medical records. Gibb said that he did not have air quality measurements or other “quantitative information” that would enable him to make a dose-response assessment — an assessment describing the effects caused by differing levels of exposure. He opined that, given the lack of data, it was “impossible” to estimate each plaintiffs exposure. However, he testified that “the reporting of symptoms and the description of the exposure” indicated that Plaintiffs incurred similar exposure to a cohort of industrial workers he had studied, and that Plaintiffs “had enough exposure to ... develop symptoms like irritation and so-forth.”

Carson opined that, within reasonable medical probability, many of the Plaintiffs’ injuries were caused by exposure to sodium dichromate at Qarmat Ali. Carson detailed three categories of Plaintiffs’ injuries: genetic transformation injuries, characterized by cell damage and an attendant heightened risk of cancer; acute irritation injuries, such as skin irritation, breathing difficulties, eye irritation, nosebleeds, sinus problems, headaches, persistent coughing, and gastro-intestinal irritation; and remote exposure injuries, such as ongoing skin, respiratory and gastrointestinal problems. In arriving at his conclusions, Carson examined litigation documents, physically examined the Plaintiffs, and studied Plaintiffs’ medical records.

As part of his methodology, Carson assigned each plaintiff he examined a control number reflecting that plaintiffs self-reported time spent at Qarmat Ali. Carson did not consider the specific dates a plaintiff was stationed at Qarmat Ali, considering only the total time each plaintiff reported being at the site. Carson used these control numbers to put each plaintiff into an “exposure category.” Carson gauged whether Plaintiffs’ injuries were caused by sodium dichromate based on the assigned exposure categories. He testified, “The exposure category followed directly from the control number, and was only utilized in terms of my determination whether or not the relationship between chromium exposure and symptoms or illnesses was plausible.” He agreed his methodology was to “look at people and compare the symptoms that they claimed as compared to the exposure category [he] had put them [in] and reach conclusions based on that.” Carson did not create any tables or summaries of these exposure categories or their application.

This exposure category analysis was Carson’s only quantitative analysis of Plaintiffs’ dosage. He stated that, to his knowledge, there were “no credible” exposure measurements. Carson testified that he did not know the dose of sodium dichro-mate any particular individual plaintiff was exposed to. Nevertheless, he opined that the level of exposure was “many orders of magnitude or much greater than historical industrial exposures” based on:

the amount of contamination; the type of area it was; the fact that it was extremely dry most of the time, although it did rain occasionally; that it was very windy, that there were recurrence [sic] of windstorms periodically; and the preponder-anee of acute irritative symptoms that the Guardsmen out there and the KBR personnel experienced.

Carson opined that Plaintiffs’ dosage was higher than that received by the subjects of Gibb’s study and quoted Gibb’s report stating that the contamination at Qarmat Ali was similar to that of a “Superfund site[ ].” However, he testified that he was not aware of any studies that have conclusively shown that there are health effects in humans from exposure to a hexavalent chromium compound, such as sodium dichromate, in an outdoor setting like a Superfund site.

The Texas Supreme Court held in Merrell Dow Pharmaceuticals, Inc. v. Havner that, in the absence of direct evidence of causation, plaintiffs may rely on epidemiological studies to prove causation where such studies demonstrate a statistically significant doubling of the risk of the injuries alleged. 953 S.W.2d at 718; see Merck & Co. v. Garza, 347 S.W.3d 256, 265 (Tex. 2011). Moreover, “[t]o raise a fact issue on causation” a plaintiff “must show that he or she is similar to those in the studies.” Havner, 953 S.W.2d at 720. Proof that one is similarly situated to sub jects in epidemiological studies must “include proof that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies, that the exposure occurred before the onset of injury, and that the timing of the onset of injury was consistent with that experienced by those in the study.” Id. To prove causation through epidemiological studies, a plaintiff must provide more than one study that meets this criteria. See Garza, 347 S.W.3d at 266; Havner, 953 S.W.2d at 727. Moreover, “other plausible causes of the injury or condition that could be negated [must be excluded] with reasonable certainty.” Garza, 347 S.W.3d at 265-66 (quoting Havner, 953 S.W.2d at 720); see also Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 193 (5th Cir. 2011).

Plaintiffs do not argue that their evidence complies with the Hamer standard, arguing instead that epidemiological studies are not the exclusive means of establishing causation. However, Plaintiffs do seek to rely on epidemiological studies, citing to, inter alia, Gibb’s studies of chro-mate-production workers who were exposed to hexavalent chromium at a factory. And, where a plaintiff seeks to rely on epidemiological evidence, Texas law requires that the studies show a statistically significant doubling of the risk of developing their alleged injuries. See Garza, 347 S.W.3d at 265 {“Hamer holds, and we reiterate, that when parties attempt to prove general causation using epidemiological evidence, a threshold requirement of reliability is that the evidence demonstrate a statistically significant doubling of the risk.”); see also Young v. Mem’l Hermann Hosp. Sys., 573 F.3d 233, 236 (5th Cir. 2009).

The studies relied on by the Plaintiffs and their experts do not reflect a statistically significant doubling of the risk of their injuries. One of these studies did not quantify the risk of developing Plaintiffs’ chromium-related-acute-irritation injuries at all and the other study did not find a doubling of the risk. In addition to Gibb’s studies, Plaintiffs reference National Institute for Occupational Safety and Health and Agency for Toxic Substances and Disease Registry reports concluding that sodium dichromate causes headaches and nose, throat, skin, respiratory tract and gastro-intestinal irritation. Plaintiffs also claim that Carson relied on “numerous scientific articles supporting his contention that sodium dichromate causes various ailments.” Plaintiffs did not submit these studies into the record and do not claim that any demonstrates a statistically significant doubling of the risk of any of their injuries. While the reliability of expert testimony 'is to be viewed in light of the totality of the evidence, “[t]he totality of the evidence cannot prove general causation if it does not meet the standards for scientific reliability established by Hamer. A plaintiff cannot prove causation by presenting different types of unreliable evidence.” Garza, 347 S.W.3d at 268.

Because none of this epidemiological evidence meets the reliability threshold of Hamer and its progeny, it cannot be considered competent summary judgment evidence establishing general causation. See id.; Daniels v. Lyondell-Citgo Refining Co., 99 S.W.3d 722, 730 (Tex. App. 2003). Because the evidence underlying Gibb’s and Carson’s opinions is unreliable as a matter of Texas law, their testimony is also insufficient to prevent summary judgment. See Havner, 953 S.W.2d at 714.

Plaintiffs argue that, notwithstanding this deficiency, their claims should still survive summary judgment. First, Plaintiffs claim that “a differential diagnosis [excluding other potential causes of injury] constitutes an accepted means of proving causation when it is scientifically accepted that a particular toxin is capable of giving rise to the underlying injury.” However, a differential diagnosis is only relevant after general causation has been reliably established “because a differential diagnosis presumes that chemical X can cause condition Y generally, but does not itself so prove.” Coastal Tankships, U.S.A., Inc. v. Anderson (In re Estate of Anderson), 87 S.W.3d 591, 609 (Tex. App. 2002). Carson’s differential diagnosis does not relieve Plaintiffs of their burden of adducing reliable evidence of general causation. See Johnson v. Arkema, Inc., 685 F.3d 452, 469 (5th Cir. 2012) (upholding exclusion of expert’s differential diagnosis where there was no “reliable or relevant scientific evidence” to support the expert’s presumption of general causation); Matt Dietz Co. v. Torres, 198 S.W.3d 798, 805 (Tex. App. 2006) (finding differential diagnosis insufficient to establish causation where there was no reliable evidence that “exposure to a specific substance at specific levels [could] cause the injury in question”).

Second, Plaintiffs argue that, regardless of the sufficiency of their expert testimony, they have adduced sufficient evidence of causation for their acute injuries on the basis of lay testimony. While Plaintiffs correctly argue that they need not cite a particular case in the district court to rely on it on appeal, Plaintiffs failed to argue in their opposition to summary judgment in the district court that lay testimony was sufficient to support causation. They similarly failed to rely on lay testimony in their motion for reconsideration of the district court’s decision on causation. We will generally not countenance arguments not raised before the district court. See, e.g., Keenan v. Tejeda, 290 F.3d 252, 262 (5th Cir. 2002) (“If a party fails to assert a legal reason why summary judgment should not be granted, that ground is waived and cannot be considered or raised on appeal.” (quoting Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995))). We therefore deem this argument forfeited.

For these reasons, we find that Plaintiffs have not adduced sufficient evidence to avoid summary judgment.

⅜ ⅜ ⅜

In light of the foregoing, we AFFIRM the district court’s grant of summary judgment and dismissal of Plaintiffs’ claims.

      . Plaintiffs brought claims against KBR and its affiliates, and against Halliburton and its affiliates. However, Plaintiffs' claims against the Halliburton defendants were dismissed, and Plaintiffs have not appealed those dismissals.

      . KBR also argues that this court should extend the Federal Tort Claims Act’s combatant-activities exception to shield government contractors from liability when they are involved in activities connected to the military’s strategic objectives. Unlike complete preemption, which is a jurisdictional issue, the preemption raised by KBR is only an affirmative defense. See Spears Mktg., Inc. v. BancorpSouth Bank, 844 F.3d 464, 467 n.3 (5th Cir. 2016); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 463 (3d Cir. 2013) ("Absent complete preemption, whether a plaintiff's claims are preempted relates to the merits.”). Because we affirm the district court’s grant of summary judgment, we do not reach KBR’s preemption argument.

      . A related case brought by Oregon National Guardsmen who worked at Qarmat Ali went to trial in the District of Oregon, resulting in a jury verdict against KBR. The verdict was vacated on jurisdictional grounds. See Bixby v. KBR, Inc., 603 Fed.Appx. 605 (9th Cir. 2015). The Oregon case was then transferred to the Southern District of Texas and consolidated with the Texas case on September 25, 2015.

      . The district court certified its ruling for interlocutory appeal, and this court granted KBR leave to appeal. After hearing oral argument, however, a panel of this court dismissed the appeal as improvidently granted. McManaway v. KBR, Inc., No. 12-20763, 2013 WL 8359992 (5th Cir. Nov. 7, 2013). KBR sought rehearing en banc, which was denied. See McManaway v. KBR, Inc., 554 Fed.Appx. 347 (5th Cir. 2014).

      . Plaintiffs appealed other rulings, the merits of which we do not reach because lack of causation is dispositive of all of Plaintiffs' tort claims.

      . Other circuits have similarly found that whether suits against military contractors are barred by the political question doctrine is a fact-intensive question. See Metzgar v. KBR, Inc. (In re KBR, Inc.), 744 F.3d 326, 334 (4th Cir. 2014) (“[Although cases involving military decision making often fall in the political question box, we cannot categorize such a case as nonjusticiable without delving into the circumstances at issue.”); Harris, 724 F.3d at 466 ("[T]o avoid infringing on other branches’ prerogatives in war-time defense-contractor cases, courts must apply a particularly discriminating inquiry into the facts and legal theories making up the plaintiffs claims as well as the defendant's defenses.”).

      .The district court found, and the parties do not dispute, that Texas law applies to Plaintiffs' tort claims.

      . The district court issued a separate order dismissing Plaintiffs' “genetic transformation” injuries on the ground that Plaintiffs were asymptomatic. Plaintiffs have presented no arguments in this court regarding this order and therefore we find any such argument forfeited. See Carl E. Woodward, L.L.C. v. Acceptance Indent. Ins. Co., 743 F.3d 91, 96 (5th Cir. 2014).

      . Plaintiffs claim that the district court erred by dismissing their tort claims on grounds that KBR did not raise: (1) the flaws of their expert’s use of "exposure categories” — estimated based on self-reported time at Qarmat Ali — to determine whether an injury was caused by sodium dichromate; and (2) the expert's failure to consider the date Plaintiffs arrived on site as part of this analysis. However, KBR essentially raised the causation issues addressed by the district court by challenging Plaintiffs’ experts’ use of exposure categories as a proxy for dose, and by urging that it was logically flawed to assume that arrival at Qar-mat Ali at any time would result in exposure to substantially the same dose of sodium dich-romate due to varying weather conditions. Causation is an essential element of Plaintiffs’ claims, and KBR’s arguments put them "on notice that [they] had to come forward with [their] evidence.” Lemoine v. Wolfe, 575 Fed. Appx. 449, 456 (5th Cir. 2014) (quoting Celo-tex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alterations in original)). Thus, the district court did not raise dispositive issues sua sponte.

      . A Superfund site is an area that has been contaminated by toxic waste and designated for remediation by the Environmental Protection Agency. See United States v. Gen. Elec. Co., 670 F.3d 377, 381 n.3 (1st Cir. 2012).

      . "Epidemiological studies examine existing populations to attempt to determine if there is an association between a disease or condition and a factor suspected of causing that disease or condition.” Havner, 953 S.W.2d at 715.

      . The district court separately addressed the claims of Lieutenant Colonel James Gentry, a former member of the Indiana National Guard who died of lung cancer in 2009. Like the other plaintiffs, Gentry brought claims of negligence, gross negligence, intentional infliction of emotional distress, and fraud against KBR arising out of his exposure to sodium dichromate at Qarmat Ali. As with the other plaintiffs, Gentry’s claims are not supported by two Havner-compliant epidemiological studies which show a doubling of the risk of developing lung cancer. Plaintiffs cite one study which showed a relative risk factor of 2.24. Plaintiffs allude to "numerous other studies that demonstrate an elevated lung cancer mortality associated with hexavalent chromium,” but they have not argued that any of these shows a statistically significant doubling of the risk of developing lung cancer. As discussed above, Carson’s differential diagnosis does not cure these problems, even if we assume his methodology is reliable. See Johnson, 685 F.3d at 469. Thus, the district court correctly granted summary judgment in favor of KBR with respect to Gentry’s individual claims.


source: Caselaw Access Project

author: JENNIFER WALKER ELROD, Circuit Judge:

license: Public Domain

text:
    IN RE: LOUISIANA CRAWFISH PRODUCERS

      No. 16-30353 consolidated with: 16-30355, 16-30357, 16-30358, 16-30359, 16-30360, 16-30361, 16-30362, 16-30363, 16-30364, 16-30365, 16-30366, 16-30367, 16-30368, 16-30369, 16-30370, 16-30371, 16-30372, 16-30373, 16-30374, 16-30375, 16-30376, 16-30377, 16-30379, 16-30380, 16-30381, 16-30382, 16-30383, 16-30384, 16-30385, 16-30386, 16-30387, 16-30388, 16-30389, 16-30390, 16-30391, 16-30392, 16-30393, 16-30394, 16-30395, 16-30396, 16-30397, 16-30398, 16-30399, 16-30400, 16-30401, 16-30402, 16-30403, 16-30405, 16-30406, 16-30407, 16-30408, 16-30409, 16-30410, 16-30411, 16-30413, 16-30414, 16-30415, 16-30416, 16-30417, 16-30418, 16-30419, 16-30420, 16-30421, 16-30422, 16-30423, 16-30424, 16-30425, 16-30426, 16-30427, 16-30428, 16-30429, 16-30430, 16-30431, 16-30432, 16-30433, 16-30434, 16-30435, 16-30436, 16-30437, 16-30738, 16-30439, 16-30440, 16-30441, 16-30442, 16-30443, 16-30444, 16-30445, 16-30446, 16-30447, 16-30448, 16-30449
    United States Court of Appeals, Fifth Circuit.
    Filed March 28, 2017

      Joseph R. Joy, III, Esq., Joseph Joy & Associates, Gordon James Schoeffler, Lafayette, LA, for Plaintiffs-Appellants.
    John L. Rivkin, George D. Kappus, Riv-kin Radler, L.L.P., Uniondale, NY, Douglas Russell Holwadel, Trial Attorney, Adams Hoefer Holwadel, L.L.C., Celeste Darmstadter Elliott, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, David P. Salley, Stephen Porter Hall, Phelps Dunbar, L.L.P., Steven W. Usdin, Jamie Lauren Berger, Esq., Laurence D. LeSueur, Jr., Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA, Richard Dean McConnell, Samuel O’Neill Lumpkin, Kean Miller, L.L.P., Baton Rouge, LA, Erik Neal Fain, William Thomas McCall, I, Esq., Guillory & McCall, L.L.C., Lake Charles, LA, for Defendants-Appellees.
    Before REAYLEY, ELROD, and GRAVES, Circuit Judges.
   JENNIFER WALKER ELROD, Circuit Judge:

The Louisiana Crawfish Producers Association-West and some of its commercial crawfishermen members sued a number of oil and gas companies and their insurers, claiming the companies’ dredging activities caused damage to the fisheries the fishermen used. The district court granted summary judgment in favor of two of the companies, Florida Gas Transmission Co. and Southern Natural Gas Co., finding that Plaintiffs did not create a genuine issue of material fact as to whether the two companies’ activities constituted “dredging” so as to support maritime tort claims. Plaintiffs moved the district court to reconsider its grant of summary judgment and submitted new evidence for its review. The district court denied Plaintiffs’ motion for reconsideration as to both companies. Plaintiffs appeal both the district court’s order granting summary judgment as well as the denial of their motion for reconsideration. We AFFIRM the district court’s grant of summary judgment and denial of the motion for reconsideration with respect to Florida Gas Transmission Co. With respect to Southern Natural Gas Co., we REVERSE the district court’s denial of Plaintiffs’ Rule 59(e) motion and VACATE its grant of summary judgment.

I.

Plaintiffs-Appellants are the Louisiana Crawfish Producers Association-West and over eighty individual crawfishermen who operate in the Atchafalaya Basin in Louisiana (collectively, Plaintiffs). They sued several companies, two of which are relevant to this appeal — Florida Gas Transmission Co. (Florida Gas) and Southern Natural Gas Co. (Southern Natural). Plaintiffs alleged that the companies’ past canal dredging activities created spoil banks that damaged the Atchafalaya Basin fisheries Plaintiffs utilized.

After this case was removed from state court to the United States District Court for the Western District of Louisiana, various defendant companies filed a motion to dismiss, arguing that Plaintiffs failed to state a cause of action for maritime tort. The district court held that Plaintiffs had stated a maritime tort claim against Florida Gas, Southern Natural, and Dow Chemical Co. (Dow) by alleging that these defendants engaged in dredging activities. The district court dismissed Plaintiffs’ claims against all other defendant companies because Plaintiffs failed to allege these companies had engaged in dredging activities. Plaintiffs appealed the dismissal of these defendants, but we affirmed. In re Louisiana Crawfish Producers, 772 F.3d 1026 (5th Cir. 2014). Our decision left Florida Gas, Southern Natural, and Dow, along with their insurers, as the remaining defendants.

Following our decision in Louisiana Crawfish, the remaining defendants and Plaintiffs conferred and prepared a case management order to establish litigation deadlines. At the time the parties created the case management order, Southern Natural’s Rule 30(b)(6) deposition had not yet occurred. The parties agreed upon a proposed case management order, which stated, in pertinent part:

3. Dispositive Motions:

a. Any party having dispositive motions) concerning legal issues and not requiring additional fact discovery shall file their motion(s) by July 31, 2015.
b. Oppositions to dispositive motions filed on or before July 31, 2015 shall be filed by August 31, 2015.
c. Any reply briefs shall be filed by September 15, 2015.
d. Within thirty (30) days from receipt of the transcript of the Southern Natural Gas Company deposition in this matter, Plaintiffs shall file any disposi-tive motions or supplemental oppositions necessitated by factual information learned during the deposition.

Southern Natural advised Plaintiffs that its earliest available deposition date was September 22, 2015. This date fell after the case management order’s August 31 deadline for Plaintiffs to oppose dispositive motions. Plaintiffs nevertheless agreed to hold Southern Natural’s deposition on September 22, 2015, anticipating they would be allowed to supplement their opposition to any dispositive motions with information learned at the deposition.

On July 31, 2015, in accordance with the case management order, Florida Gas, Southern Natural, and Dow filed a joint motion seeking reconsideration of the district court’s earlier denial of their motion to dismiss or, alternatively, seeking summary judgment and dismissal of Plaintiffs’ claims. Plaintiffs timely submitted their opposition to the motion in accordance with the deadlines set forth in the case management order. Plaintiffs attached to their opposition evidence pertaining to Florida Gas and Dow, but they did not attach any evidence pertaining to Southern Natural.

While the motion was pending before the district court, Southern Natural’s corporate representative was deposed on September 22, 2015. During the deposition, Southern Natural’s corporate representative testified that Southern Natural engaged in dredging in connection with the subject spoil banks. At the end of the deposition, Southern Natural’s corporate representative reserved his right to read and sign the deposition transcript. At Plaintiffs’ request, the court reporter provided an uncertified copy of the transcript to Plaintiffs on October 26, 2016. However, because Southern Natural’s corporate representative had not yet signed the transcript, an official transcript was not yet available. After the deposition took place, Plaintiffs also forwarded requests for admissions to all defendants, ahead of the agreed-upon discovery cutoff date. In its response, Southern Natural admitted to using dredge vessels in the construction of the canal at issue.

On November 12, 2015, while Plaintiffs were still awaiting the official deposition transcript, the district court granted summary judgment in favor of Florida Gas and Southern Natural, finding that Plaintiffs did not provide evidence that created a genuine issue of material fact as to whether either of these defendants had engaged in dredging activities. The certified transcript of the Southern Natural deposition was finally provided to Plaintiffs on November 17, 2015 — five days after the district court’s ruling.

Plaintiffs moved the district court to reconsider its grant of summary judgment under Federal Rule of Civil Procedure 59(e). In their brief in support of this motion, Plaintiffs argued that the district court’s ruling as it pertained to Southern Natural was procedurally erroneous because Plaintiffs did not have an opportunity to supplement their opposition to the defendants’ motion under the terms of the case management order. Plaintiffs also attached additional evidence to their brief which they argued supported their claims against both Florida Gas and Southern Natural. This new evidence included Southern Natural’s deposition testimony, exhibits offered at Southern Natural’s deposition, and Southern Natural’s responses to requests for admissions.

The district court denied Plaintiffs’ motion for reconsideration as to both Florida Gas and Southern Natural. Plaintiffs now appeal the district court’s original order granting summary judgment as well as the district court’s order denying reconsideration.

II.

We review grants of summary judgment de novo, applying the same standard as the district court. Templet v. Hydrochem Inc., 367 F.3d 473, 477 (5th Cir. 2004). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[WJhere the nonmovant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial. Only when ‘there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party’ is a full trial on the merits warranted.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (citations omitted). All reasonable inferences must be viewed in the light most favorable to the party opposing summary judgment, and any doubt must be resolved in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hill-man v. Loga, 697 F.3d 299, 302 (5th Cir. 2012).

Typically, we review a district court’s decision on a Rule 59 motion to reconsider for abuse of discretion. Templet, 367 F.3d at 477. However, this de pends on whether the district court considered materials attached to the motion for reconsideration which were not previously provided to the court when it granted summary judgment. Id. (citing Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994)). “If the materials were considered by the district court, and the district court still grants summary judgment, the appropriate appellate standard of review is' de novo.” Id. “However, if the district court refuses to consider the materials, the reviewing court applies the abuse of discretion-standard.” Id. Under an abuse of discretion standard of review, “the district court’s decision and decision-making process need only be reasonable.” Id.

III.

We first address the district court’s grant of summary judgment and subsequent denial of Plaintiffs’ motion for reconsideration with respect to Florida Gas. Florida Gas contends that it did not perform any dredging, but rather that its activities were limited to placing a pipeline into an already existing canal. Under our precedent, merely placing pipeline — “pipeline construction and repair” — is insufficient to support a maritime tort claim. See Louisiana Crawfish, 772 F.3d at 1029-30. The issue before us on appeal is whether Plaintiffs met their summary judgment burden of demonstrating that a genuine issue of material fact exists as to whether Florida Gas engaged in dredging.

In opposition to Florida Gas’s summary judgment motion, Plaintiffs submitted Florida Gas’s United States Army Corps of Engineers permit and permit application. Plaintiffs attached additional evidence to their motion for reconsideration, which included Southern Natural’s corporate deposition testimony, a photograph purporting to show the canal in which Florida Gas’s pipeline is placed, and a document entitled “Memorandum and Files.” Because the district court considered this additional evidence in denying the motion for reconsideration as to Florida Gas, this evidence became part of the summary judgment record. Templet, 367 F.3d at 477-79. Therefore, we review de novo whether summary judgment was appropriate. Id. at 477. We hold that the district court did not err in granting summary judgment in favor of Florida Gas and in subsequently denying Plaintiffs’ motion for reconsideration as to Florida Gas.

As a threshold matter, Plaintiffs argue that the district court erred by shifting the summary judgment burden to them because Florida Gas did not submit any evidence in support of its motion for summary judgment. However, Plaintiffs— not Florida Gas — bear the burden to present evidence creating a genuine issue of material fact to defeat summary judgment. Lindsey, 16 F.3d at 618 (“[Wjhere the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.”); Little v. Liquid Air Corp., 37 F.3d 1069, 1075, 1076 n.16 (5th Cir. 1994) (en banc) (noting that the party moving for summary judgment may simply assert the “absence of facts supporting the elements of the plaintiffs’ theory of recovery” and need not “negate the existence of facts”); see also 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727.1 (4th ed. 2016). Plaintiffs bear the burden of proving their maritime tort claims at trial and therefore bear the burden of demonstrating that Florida Gas dredged the canals in question.

In its summary judgment motion, Florida Gas “point[ed] to” the lack of record evidence that it participated in dredging activities; therefore, Plaintiffs bore the burden of “demonstrating by competent summary judgment proof’ that there is a genuine issue of material fact as to whether Florida Gas dredged. See Lindsey, 16 F.3d at 618. The evidence submitted by Plaintiffs — either initially in opposition to summary judgment or later attached to their motion for reconsideration — was not sufficient to satisfy this burden.

Plaintiffs argue that Florida Gas’s Army Corps of Engineers permit application creates a genuine issue of fact because “[ejvery company that dredged canals in the Atchafalaya during this time period was required to obtain a permit like these.” But Florida Gas’s application makes no reference to dredging; rather, it only provides for the pipeline to be dropped into an open, forty-foot-wide canal. Indeed, this application supports Florida Gas’s theory that it was seeking permission to drop a pipeline into an existing canal — not seeking to dredge a canal.

Likewise, Florida Gas’s permit itself does not create a fact issue as to whether Florida Gas dredged the canal in question. The only mention of dredging in Florida Gas’s permit is in a list of boilerplate conditions that are not tied to any specific location. These conditions do not show that Florida Gas requested permission to dredge, that it received permission to dredge, or, most critically, that it actually dredged. There is nothing in Florida Gas’s permit that defeats summary judgment.

Plaintiffs contend that Southern Natural’s corporate deposition testimony also creates a genuine issue of material fact as to Florida Gas’s dredging. Specifically, Plaintiffs argue that Southern Natural’s corporate representative testified that if a forty-foot wide canal remained in existence today, that could be an indication that the canal had been dredged. Plaintiffs’ reliance on this testimony is misplaced because the testimony does not specifically address Florida Gas’s pipelines nor does it address whether Florida Gas had conducted any dredging. Further, Plaintiffs have not cited to anything in the record that indicates that Southern Natural’s representative had any knowledge of Florida Gas’s pipeline construction history.

Plaintiffs also submitted a photograph that they contend shows “an approximately forty-foot wide canal with adjacent spoil banks still in existence today in the fishery, in which FLORIDA’S pipeline rests, today.” Plaintiffs contend that because this canal exists, Florida Gas, “or someone on its behalf ... dredged a canal.” However, as the district court noted, the photograph is of such poor quality that it is extremely difficult to determine what it depicts. Further, even if the photograph proves the existence of a canal, this does not serve as evidence that Florida Gas dredged the canal. Indeed, Florida Gas has agreed all along that a canal exists; it only contends it did not dredge it.

The final piece of evidence offered by Plaintiffs to defeat summary judgment with respect to Florida Gas is a document entitled “Memorandum for the Files.” In this document, a Southern Natural employee purportedly writes that he consulted with an employee from Florida Gas to inquire about the credentials of a dredging contractor Florida Gas had used. Plaintiffs argue that given the proximity in time between when the memo was produced and when Florida Gas constructed its pipeline at issue in this case, “there is certainly a logical inference to be made that the memo refers to FLORIDA’S pipelines at issue in this case.” However, as the district court correctly recognized, this document cannot defeat summary judgment as to Florida Gas because the document does not reference a specific Florida Gas project and there is nothing on the face of the document that connects it to any of the pipelines at issue.

In sum, none of Plaintiffs’ evidence creates a genuine issue of material fact as to whether Florida Gas participated in dredging activities. Little, 37 F.3d at 1075. Accordingly, we affirm the district court’s grant of summary judgment in favor of Florida Gas. Having done so, we also affirm the denial of Plaintiffs’ motion for reconsideration as to Florida Gas.

IV.

We turn next to the district court’s grant of summary judgment in favor of Southern Natural and its subsequent denial of Plaintiffs’ motion for reconsideration as it pertained to Southern Natural. The district court granted summary judgment in favor of Southern Natural because Plaintiffs did not submit any evidence relating to Southern Natural’s dredging activity in opposition to the summary judgment motion. The district court’s initial grant of summary judgment in favor of Southern Natural was proper — Southern Natural pointed “to an absence of evidence” supporting Plaintiffs’ claims, thus shifting to Plaintiffs “the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial,” a burden Plaintiffs did not satisfy. Lindsey, 16 F.3d at 618.

However, we must also determine whether the district court’s denial of reconsideration as to Southern Natural was proper in light of the evidence Plaintiffs submitted along with their motion for the district court to reconsider Southern Natural’s dismissal. Unlike the district court’s review of Plaintiffs’ new evidence pertaining to Florida Gas, the district court likely did not consider Plaintiffs’ new evidence pertaining to Southern Natural; therefore, we review the district court’s denial of Plaintiffs’ Rule 59(e) motion as to Southern Natural for abuse of discretion. See Luig v. N. Bay Enters., Inc., 817 F.3d 901, 905-06 (5th Cir. 2016) (applying the abuse of discretion standard where “[t]he district court likely did not consider [mov-ant’s] newly presented evidence when denying the [Rule] 59(e) motion”). We hold that the district court abused its discretion in denying Plaintiffs’ motion for reconsideration as to Southern Natural.

The district court declined to reconsider its grant of summary judgment in favor of Southern Natural despite Plaintiffs providing three types of new evidence upon reconsideration: (1) Southern Natural’s deposition transcript; (2) documentary evidence offered during Southern Natural’s deposition; and (3) Southern Natural’s responses to requests for admission. There are several factors the district court should have considered when determining whether to grant Plaintiffs’ motion for reconsideration in light of Plaintiffs’ new evidence: (1) the probative value of the evidence; (2) the reason for Plaintiffs’ default; (3) whether the evidence was available to Plaintiffs at the time of the summary judgment motion; and (4) potential prejudice to Southern Natural. See Luig, 817 F.3d at 906 (citing Templet, 367 F.3d at 478). These factors “are simply illustrative and not exhaustive.” Templet, 367 F.3d at 482. The district court concluded that all of the additional evidence that Plaintiffs asked the court to consider was “plainly available or easily discovered before summary judgment.” We disagree with the district court’s analysis, particularly as it pertains to Southern Natural’s deposition transcript and responses to requests for admissions.

Southern Natural’s deposition transcript and responses to requests for admissions are clearly probative. The district court granted summary judgment as to Southern Natural because Plaintiffs failed to present evidence that Southern Natural engaged in any dredging activities. In both its deposition and its responses to requests for admissions, Southern Natural candidly admitted that it dredged the canal in question. If the district court would have considered the contents of Southern Natural’s deposition or its admissions, Plaintiffs would have defeated summary judgment as to Southern Natural.

Plaintiffs’ reasons for their default also support granting their motion for reconsideration. First, as to Southern Natural’s deposition transcript, Plaintiffs had not yet received an official copy of the transcript at the time the district court granted the motion for summary judgment. In evaluating Plaintiffs’ motion for reconsideration, the district court faulted Plaintiffs for failing to seek an extension of time to file supplemental briefing after Southern Natural’s deposition took place and while Plaintiffs were waiting for an official copy of the transcript. However, no extension of time should have been necessary — Plaintiffs were justified in relying on the deadlines set forth in the case management order. The case management order allowed Plaintiffs thirty days from the time they received Southern Natural’s deposition transcript to file any dispositive motions or any supplemental oppositions with the court. However, the district court entered its order granting summary judgment on November 12, 2015 — five days before Plaintiffs received the official deposition transcript. Plaintiffs submitted their motion for reconsideration along with the new evidence on November 25, 2015 — a mere eight days after Plaintiffs received the official transcript and well within the thirty-day timeframe established by the case management order. Contrary to the district court’s conclusion, Plaintiffs were not required to request an extension of time in order to submit the deposition transcript to the district court.

Second, as to Southern Natural’s responses to requests for admissions, the district court faulted Plaintiffs for “failing to immediately move to supplement their opposition when they received [Southern Natural’s] responses” three days before the district court’s ruling. But the district court failed to recognize that Plaintiffs, relying on the terms of the case management order, had no reason to believe the district court would grant the defendants’ motion while Plaintiffs were still awaiting Southern Natural’s official deposition transcript. Plaintiffs therefore had no reason to “immediately” bring Southern Natural’s responses to the district court’s attention, but rather were justified in waiting for the transcript so that they could file a single supplemental opposition brief that would include both Southern Natural’s deposition transcript and Southern Natural’s responses. See Luig, 817 F.3d at 907 (“Although the [the movant] likely had access to the evidence presented in the [Rule] 59(e) motion at the time it filed its summary judgment motion, [the movant’s] failure to present the evidence was excusable because the district court did not give [the movant] the opportunity to present this evidence before effectively granting summary judgment. ...”).

The third factor — whether the evidence was available to Plaintiffs at the time of the summary judgment motion — also favors Plaintiffs. Southern Natural contends that the case management order limits Plaintiffs’ rights to file supplemental materials to those materials that include “factual information learned during the deposition.” Southern Natural argues that none of the information Plaintiffs learned at the deposition or from Southern Natural’s admissions was new — Plaintiffs had all of the deposition exhibits in their possession for several years before the summary judgment motion and these documents contained evidence that Southern Natural dredged.

We disagree. While it may be true that Plaintiffs had much of the relevant documentary evidence in their possession before Southern Natural moved for summary judgment, the admission made by Southern Natural that the company dredged the pipeline in question was indeed “information learned” by Plaintiffs. An admission by a party carries considerably more weight than inferences drawn from documentary evidence purporting to support a certain fact. Indeed, an admission by a party “is conclusively established” as fact in the case. Fed. R. Civ. P. 36(b); see also In re Carney, 258 F.3d 415, 420 (5th Cir. 2001) (“Rule 36 admissions ... are conclusive as to the matters admitted, they cannot be overcome at the summary judgement stage.... ”); 8B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2264 (3d ed. 2017) (noting that a Rule 36 admission, “deliberately drafted by counsel for the express purpose of limiting and defining the facts in issue, is traditionally regarded as conclusive”). Plaintiffs did not have Southern Natural’s admission before Southern Natural responded to Plaintiffs’ requests for admissions and the Southern Natural deposition took place. We therefore conclude that Southern Natural’s candid admission that it dredged the pipeline in question is new evidence that was not available to Plaintiffs at the time of the summary judgment motion.

Finally, Southern Natural will not be unfairly prejudiced by the district court’s consideration of Southern Natural’s own admissions and deposition testimony. This is not situation in which Southern Natural was unaware that the evidence at issue existed — the contents of both the deposition testimony and admissions were always known to Southern Natural and within its control. Further, had the district court utilized the case management order, this evidence would have been properly in front of the district court before it granted summary judgment in Southern Natural’s favor. See Luig, 817 F.3d at 907 (holding that there was no prejudice where, had the district court allowed the moving party the proper opportunity to respond, “the evidence would have been properly in front of the district court”).

There are “two important judicial imperatives” relating to a motion for reconsideration: “(1) the need to bring litigation to an end; and (2) the need to render just decisions on the basis of all the facts.” Templet, 367 F.3d at 479 (emphasis added). Plaintiffs presented new, conclusive evidence in their motion for reconsideration pertaining to Southern Natural that they were justified in not presenting earlier. The district court’s failure to reconsider its grant of summary judgment as to Southern Natural in light of this new evidence amounted to an abuse of discretion. See Luig, 817 F.3d at 907.

V.

Accordingly, we AFFIRM the district court’s grant of summary judgment and denial of the motion for reconsideration with respect to Florida Gas. With respect to Southern Natural, we REVERSE the district court’s denial of Plaintiffs’ Rule 59(e) motion and VACATE its grant of summary judgment. We REMAND for further proceedings consistent with this opinion.

      . Crawfish, also known as crayfish, crawdads, freshwater lobsters, mountain lobsters, mud-bugs, or yabbies, are freshwater crustaceans resembling small lobsters. While there are over 500 species of crawfish in the world, the Southeastern United States is home to around 330 of them. Wikipedia, Crayfish, https://en. wikipedia.org/wiki/Crayfish (last visited March 21, 2017). In 1983, the state of Louisiana designated the Louisiana crawfish, Pro-cambarus clarkii, as its Official Crustacean, becoming the first state to bestow such an honor on a species of crustaceans. Wikipedia, List of U.S. State Crustaceans, https://en. wikipedia. org/wiki/List_of_U. S —state-crustaceans (last visited March 21, 2017).

      . Dow remains a defendant in the district court but is not a party to this appeal.

      . Specifically, the district court found that with respect to Southern Natural, Florida Gas, and Dow, Plaintiffs’ allegation of dredging on navigable waters bears a sufficient relationship to traditional maritime activity to state a claim for a maritime tort under Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995).

      . Plaintiffs did note in their opposition brief that they would be deposing Southern Natural in the coming months, and stated that they "reserved the right to supplement this opposition after the deposition of Southern Natural Gas which is set to take place in late September, 2015.”

      . Specifically, Southern Natural's corporate representative testified:
      Q: Let’s talk about the Section 28 line. Do you know how that line was actually constructed?
      A: I know that the line was permitted to be constructed by virtue of Southern Natural digging a flotation canal for waterborne equipment to lay the pipeline, and we know that was done in accordance with the permit.

        . Plaintiffs’ first request for admission asked Southern Natural to “Admit or deny that the canals in which Southern Natural Gas’ ‘South Section 28 Pipeline’ ... [is/was] situated were dredged by dredging vessels.” In response, Southern Natural admitted that Southern Natural "constructed the South Section 28 Pipeline ... in accordance with the permits issued by United States Army Corps of Engineers. ...”

      .The district court denied the defendants’ motion to reconsider the order denying their motion to dismiss, holding that dredging of a navigation canal, conducted from a vessel on navigable waters, shows a substantial connection to traditional maritime activity sufficient to support a maritime tort claim, (citing Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990) (in addition to "navigation,” traditional maritime activities include "at least ... any other activities traditionally undertaken by vessels, commercial or noncommercial”); Grubart, 513 U.S. at 539-40, 115 S.Ct. 1043 (dredge and dock company’s bridge repair and maintenance work from a vessel on a navigable waterway was substantially related to traditional maritime activity); In re The V-14813, 65 F.2d 789, 790 (5th Cir. 1933) ("There are many cases holding that a dredge ... employed on navigable waters, is subject to maritime jurisdiction....”)). The parties do not contest this holding.

      . Both Plaintiffs and Florida Gas agree that the district court considered Plaintiffs’ new evidence as to Florida Gas and that the de novo standard of review applies.

      . Plaintiffs also argue that there are "vicinity maps” in Florida Gas's permit that demonstrate there were no pre-existing canals at the time Florida Gas's permit was issued. Plaintiffs argue that if Florida Gas laid its pipeline into an existing canal, the canal would have been depicted on these maps. However, the maps themselves are unclear and it is difficult to discern what they are depicting. Plaintiffs do not offer testimony or other record evidence to support their assertion that "there are no pre-existing canals depicted” on the maps, much less that Florida Gas dredged canals. Such conjecture, unsupported by competent summary judgment evidence, cannot create a fact issue to defeat summary judgment.

      .In its opinion granting summary judgment, the district court also addressed the deposition testimony of Florida Gas's corporate representative, Dennis Alters. Alters testified that after reviewing Florida Gas's "construction notes ... foot by foot,” there was no mention of any dredging activity. The district court accepted Alters’s testimony as "uncontradict-ed and unimpeached.” Plaintiffs argue that because Alters "could only speculate on how the canals came into existence” and did not testify as to what actually happened, Florida Gas "never established that there was no genuine issue of fact as to whether it engaged in dredging.” Again, it is Plaintiffs’ burden to produce evidence that Florida Gas dredged, not Florida Gas's burden to prove they did not. Despite Alters's testimony, however, Plaintiffs could have defeated summary judgment as to Florida Gas had they produced evidence that created a genuine issue of material fact as to whether Florida Gas dredged. See Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; Hillman, 697 F.3d at 302 ("Doubts are to be resolved in favor of the nonmoving party, and any reasonable inferences are to be drawn in favor of that party.” (quoting Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003))). Plaintiffs have failed to do so, and thus summary judgment as to Florida Gas is appropriate.

      . Plaintiffs argue that the district court erred in "converting” Southern Natural’s motion from a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to a motion for summary judgment under Rule 56. However, Southern Natural moved the district court to reconsider its prior dismissal of Southern Natural’s motion to dismiss or, alternatively, to grant summary judgment in Southern Natural’s favor. To the extent that Plaintiffs argue they did not have adequate notice that the district court could grant summary judgment, the title of the defendants’ motion made it clear that Southern Natural and the other defendants were seeking summary judgment.

      . Plaintiffs contend that the district court considered Southern Natural’s responses to Plaintiffs’ requests for admissions wherein Southern Natural admitted to dredging. Plaintiffs argue that the district court’s opinion “acknowledges the substance and contents” of Southern Natural's responses and therefore the district court "considered” them so as to trigger our de novo review. See Templet, 367 F.3d at 477. While the district court may have acknowledged the new evidence, it did not consider that evidence under the summary judgment standard, and therefore de novo review is inappropriate here.

      . In addition to Southern Natural’s deposition transcript and responses to requests for admission, Plaintiffs also offered the documentary evidence from Southern Natural’s deposition as “new” evidence. Plaintiffs candidly acknowledge in their brief that "all of the deposition exhibits were in [their] possession at the time they originally opposed the summary judgment.” Because this evidence was available to Plaintiffs at the time of the summary judgment motion and because Plaintiffs have not presented a satisfactory reason for not coming forward with this evidence at the time their opposition was filed, we conclude the district court did not abuse its discretion in not reconsidering its grant of summaty judgment in light of this particular evidence. See Luig, 817 F.3d at 906. Further, it is unnecessary to address the deposition exhibits in more detail because we conclude that the district court abused its discretion when it did not reconsider its grant of summary judgment as to Southern Natural in light of Southern Natural’s deposition transcript and responses to request for admissions, which were sufficient to defeat summary judgment.

      . Notably, Southern Natural does not dispute that it admitted to dredging the canal at issue in its deposition and its responses to requests for admissions. Rather, Southern Natural only contends that the district court did not abuse its discretion in denying Plaintiffs Rule 59(e) motion because Plaintiffs did not present this key evidence to the court in a timely manner.

      . As we have noted above, the parties do not dispute the district court’s holding that dredging of a navigation canal, conducted from a vessel on navigable waters, has a substantial connection to maritime activity sufficient to support a maritime tort claim. See Grubart, 513 U.S. at 539, 115 S.Ct. 1043. Therefore, Plaintiffs’ evidence that Southern Natural dredged would have been sufficient to support their maritime tort claim and defeat summary judgment.

      . To the extent Southern Natural argues that the thirty-day time period should run from the time that Plaintiffs received the unofficial deposition transcript, this does not change our analysis. Plaintiffs received the unofficial, unsigned draft of the deposition transcript on October 26, 2015. Therefore, Plaintiffs still satisfied the thirty-day requirement when they filed their motion for reconsideration, along with the new evidence, on November 25, 2015.

      .Plaintiffs were justified in believing that the district court was aware of the case management order and that the district court would abide by the deadlines agreed to by the parties. The case management order was signed by Magistrate Judge Hanna and entered into the case docket. However, in its opinion denying Plaintiffs’ motion for reconsideration, the district court noted that “it was unaware” of the case management order. While we do not fault the district court for overlooking the case management order docket entry in this complicated, drawn-out case, the district court should have corrected this oversight upon Plaintiffs' motion for reconsid- • eration. Plaintiffs should not be punished as a result of the district court’s oversight.


author: KING, Circuit Judge:

text:
    OCWEN LOAN SERVICING, L.L.C., Plaintiff-Appellee v. Robert M. BERRY, Defendant-Appellant
    No. 16-10604
    United States Court of Appeals, Fifth Circuit.
    Filed March 29, 2017

      Mark Douglas Cronenwett, Mackie Wolf Zientz & Mann, P.C., Dallas, TX, for Plaintiff-Appellee.
    Joyce Williams Lindauer, Law Office of Joyce W. Lindauer, P.L.L.C., Dallas, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
   KING, Circuit Judge:

This case concerns a dispute between a borrower and lender over a home equity loan. The lender filed this lawsuit seeking a judgment allowing it to foreclose, and the borrower asserted affirmative defenses and a counterclaim alleging numerous violations of the Texas Constitution’s home equity loan provisions. The district court granted summary judgment for the lender, finding, inter alia, that the borrower’s affirmative defenses and counterclaim alleging violations of the Texas Constitution’s home equity loan provisions were barred by a four-year statute of limitations. Finding that the application of a four-year statute of limitations was in error, we VACATE and REMAND.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Defendant-Appellant Robert Berry took out a loan from Overland Mortgage, L.P. that was secured by a lien on his home. Plaintiff-Appellee Ocwen Loan Servicing, L.L.C. eventually acquired Overland’s interest in the loan. In 2010, a Notice of Default and Intent to Accelerate was sent to Berry following missed payments. In June 2013, a Notice of Acceleration was sent to Berry after he failed to cure the default.

In September 2014, Ocwen filed its original complaint in this action, seeking a judgment allowing it to foreclose on the property. In November 2014, Berry filed his answer, which included as an affirmative defense the allegation that Oewen’s security interest is unenforceable because there were multiple violations of Article 16, section 50(a)(6) of the Texas Constitution. In May 2015, Ocwen filed its first amended complaint (FAC), adding, inter alia, a cause of action for equitable subrogation and asserting that Berry’s affirmative defense alleging violations of the Texas Constitution was barred by the statute of limitations.

Berry filed an answer and counterclaim to the FAC the next month, asserting once again the affirmative defense that Oewen’s security interest is unenforceable due to violations of section 50(a)(6) of the Texas Constitution and adding a counterclaim that “[t]he extension of credit was made in violation of the Texas Constitution for the reasons reflected in Affirmative Defenses and the alleged lien is invalid on its face.” In its answer to the counterclaim, Oewen asserted, inter alia, that Berry’s allegations were “barred, in whole or in part, by the applicable statute of limitations. In particular, his Counterclaim was filed more than four years after the closing of the subject loan and his Counterclaim is subject to a four-year limitations period.” Berry then filed a first amended answer and counterclaim, adding more detail and allegations to the affirmative defense and slightly changing the wording of the counterclaim. In its amended answer to the counterclaim, Oewen once again asserted that Berry’s claims were barred by the statute of limitations.

In August 2015, Oewen and Berry each moved for summary judgment. The district court granted Ocwen’s motion for summary judgment and denied Berry’s motion for summary judgment. In relevant part, the district court found that Oewen had cited to evidence in support of its assertions that it was -the owner of the loan and had followed the proper procedures to foreclose on the property. The district court then recognized that — rather than respond to or dispute this evidence — Berry instead argued that the loan was invalid because of numerous alleged violations of the Texas Constitution committed by Ocwen’s predecessor in interest during the closing of the loan. Berry had argued that, although Fifth Circuit precedent would normally apply a four-year statute of limitations to his constitutional arguments had he filed the lawsuit, his arguments were raised as affirmative defenses and as a counterclaim. Therefore, according to Berry, they were timely under Tex. Civ. Prac. & Rem. Code § 16.069, and alternatively, under the theory of recoupment. The district court held, however, that the alleged violations of the Texas Constitution were barred by a four-year statute of limitations, rejecting Berry’s argument that he could rely on section 16.069 to avoid the statute of limitations. The district court explained that, although it was unclear whether Berry, a counterclaimant, was required to specifically reference section 16.069 in his counterclaim, Berry not only had failed to cite section 16.069 in his amended counterclaim, but he also had failed to mention avoidance of the statute of limitations in theory. Accordingly, the district court held that Berry’s argument in reliance on section 16.069 was waived because he was required to, at the very least, affirmatively plead his theory of avoidance regarding the statute of limitations.

Berry then filed a motion for reconsideration. Treating Berry’s motion as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), the district court denied the motion.

Berry timely filed a notice of appeal.

II. STANDARD OF REVIEW

We review “[a] grant of summary judgment ... de novo, applying the same standard on appeal that is applied by the district court.” Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Coliseum Square Ass’n v. Jackson, 465 F.3d 215, 244 (5th Cir. 2006)). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We also review “a district court’s determinations of state law de novo.” Lozovyy v. Kurtz, 813 F.3d 576, 580 (5th Cir. 2015).

III. THE STATUTE OF LIMITATIONS

After the parties filed their appellate briefs, we requested and received supplemental letter briefs from the parties addressing what impact, if any, the Texas Supreme Court’s recent decision in Wood v. HSBC Bank USA N.A., 505 S.W.3d 542 (2016), has on this appeal. In Wood, which was decided after the district court’s grant of summary judgment but prior to the filing of appellate briefs, the Texas Supreme Court held that no statute of limitations applied to a borrower’s quiet title action alleging that a lien securing a home equity loan was invalid because of violations of section 50(a)(6) of the Texas Constitution. Id. at 547-51. Neither party had previously addressed Wood. In his letter brief, Berry argues that Wood makes clear that no statute of limitations applies to his affirmative defenses and counterclaim alleging violations of section 50(a)(6) of the Texas Constitution. Ocwen concedes that Wood abrogated in part prior Fifth Circuit precedent applying a four-year statute of limitations to such claims, namely Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013), but argues, inter alia, that Berry waived any argument relying on Wood by failing to include such an argument in his opening brief.

We first turn to Ocwen’s contention that Berry waived any argument that relies on Wood because he failed to discuss it in his opening brief. According to Ocwen, Wood was decided several months before Berry filed his opening brief, and therefore, Berry had the opportunity to include an argument regarding Wood but failed to do so. Although Ocwen correctly identifies the general rule that issues not briefed are waived, “the issues-not-briefed-are-waived rule is a prudential construct that requires the exercise of discretion.” See United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001). In this case, although Berry did not include an argument specifically about how Wood affects this case, the issue of what, if any, statute of limitations applies to Berry’s constitutional arguments was the focus of his entire opening brief. Specifically, Berry contended in his opening brief that the district court erred in applying a four-year statute of limitations because (1) his counterclaim was timely, regardless of the four-year statute of limitations, under Tex. Civ. Prac. & Rem. Code § 16.069, or alternatively, (2) no statute of limitations applied given that his constitutional arguments are in the nature of recoupment. Moreover, if we were to consider only the arguments in Berry’s opening brief regarding section 16.069 and recoupment, we would necessarily have to presume that the four-year statute of limitations would otherwise apply to Berry’s arguments. In other words, if no statute of limitations applied to Berry’s arguments in light of Wood, there would be no need to consider whether his constitutional allegations avoided the now nonexistent four-year statute of limitations based on section 16.069 or the theory of recoupment. Finally, the issue of Wood’s application is a pure question of law. See New Orleans Depot Servs., Inc. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 387-88 (5th Cir. 2013) (en banc) (stating that a pure question of law is “a well-settled discretionary exception to the waiver rule”). For these reasons, we exercise our discretion to decide this purely legal issue notwithstanding the fact that Berry did not discuss it in his opening brief.

We next turn to whether, in light of Wood, the district court erred in applying a four-year statute of limitations to Berry’s affirmative defenses and counterclaim alleging violations of section 50(a)(6) of the Texas Constitution. Because this is a diversity case, we apply Texas law regarding the statute of limitations. Citigroup Inc. v. Fed. Ins. Co., 649 F.3d 367, 373 (5th Cir. 2011). At the time that the district court granted summary judgment, Fifth Circuit precedent applied Texas’s residual four-year statute of limitations to allegations such as Berry’s. See Priester, 708 F.3d at 674. In Priester, we considered whether a limitations period applied to alleged violations of section 50(a)(6) of the Texas Constitution. Id. at 673. Section 50(a)(6) does not state whether a limitations period applies, and thus, we were required to decide whether Texas’s residual four-year statute of limitations applied. Id.; Tex. Civ. Prac. & Rem. Code § 16.051 (“Every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.”). Recognizing that the Texas Supreme Court had not yet directly addressed the issue, we analyzed, inter alia, Texas court of appeals decisions and concluded that the four-year statute of limitations applied. Priester, 708 F.3d at 673-74. In subsequent decisions, we have declined to overturn Priester, noting that there had been no change in law that would allow us to do so. See, e.g., Smith v. JP Morgan Chase Bank, N.A., 594 Fed. Appx. 221, 222 (5th Cir. 2014) (per curiam) (“As three other panels have previously noted, there has been no change in law that would allow us to overturn the Pries-ter decision.”).

However, in May 2016, such a change of law occurred when the Texas Supreme Court decided Wood. Although “[a] panel of this court cannot ‘overturn’ the decision of another panel,” “[i]n diversity cases, ... we are to follow subsequent state court decisions that are clearly contrary to a previous decision of this court.” Farnham v. Bristow Helicopters, Inc., 776 F.2d 535, 537 (5th Cir. 1985); see also Kansa Reinsurance Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1373 (5th Cir. 1994) (“[T]his court also employs a rule in diversity cases that overrules our prior precedent when there is a significant change in the applicable state’s substantive law.”). In Wood, the Texas Supreme Court directly addressed whether a statute of limitations applies to a quiet title action alleging violations of section 50(a)(6). 505 S.W.3d at 547-51. As part of its analysis of the issue, the Texas Supreme Court explicitly cited and rejected the reasoning in Priester. Id. at 548. Ultimately, the Texas Supreme Court held that constitutionally noncompliant home equity liens are invalid (before the defect is cured) and that no statute of limitations applied to a quiet title action alleging such violations. Id. at 547-51. Accordingly, we now must follow the Texas Supreme Court’s holding in Wood that no statute of limitations applies to a borrower’s allegations of violations of section 50(a)(6) of the Texas Constitution in a quiet title action, rather than our prior holding in Priester.

Thus, the district court erred in finding that Berry’s affirmative defenses and counterclaim alleging violations of section 50(a)(6) of the Texas Constitution were barred by a four-year statute of limitations. Indeed, in light of Wood, the parties seem to agree that no statute of limitations applies to Berry’s arguments. Although Wood concerned a borrower’s quiet title action, Ocwen has not argued that Wood’s statute of limitations holding should not be applied to Berry’s arguments simply because they were asserted as affirmative defenses and as a counterclaim. Cf. Carrington Mortg. Servs., LLC v. Hutto, No. 14-15-00442, 2017 WL 592120, at *8-4 (Tex. App.—Houston [14th Dist.] Feb. 14, 2017, no pet. h.) (applying Wood’s holding where borrowers alleged violations of section 50(a)(6) as defenses to lender’s foreclosure action). We express no opinion on the merits of Berry’s constitutional, arguments.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is VACATED, and the case is REMANDED to the district court. Each party shall bear its own costs.

      . The counterclaim now stated, in relevant part, that "[t]he extension of credit was made in violation of the Texas Constitution for the reasons reflected in Affirmative Defenses and the alleged lien and note are invalid.''

      . Section 16.069 states, in relevant part, that "[i]f a counterclaim ... arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim .... even though as a separate action it would be barred by limitation.”

      . In its letter brief, Ocwen conceded that Wood partially abrogated Priester. Ocwen did not argue that Wood is distinguishable from the instant case.

      . Ocwen also argued in its letter brief that the grant of summary judgment should be affirmed because Berry did not challenge on appeal Ocwen’s alternative argument regarding equitable subrogation. However, the district court explicitly did not reach this alternative argument because it had already found that Berry’s arguments were time-barred. On remand, the district court may wish to consider the arguments that it did not previously reach.