http://savethegulf.gulflive.com/savethegulf/db_101513/contentdetail.htm?contentguid=DChYoxEI
Let the legal games begin. This litigation will be an interesting series of legal maneuvers by many plaintiff and defense attorneys.
I think I noticed a few new defendants also such as dispersant manufacturer Nalco,
Response Management Inc. and National Response Corp., companies that laid boom, burned oil and applied dispersant.
Defendants in oil spill litigation seek to have groups of claims dismissed
Rebecca Mowbray, The Times-Picayune
Published: May 26, 2011 5:56 PM
In the first substantive hearing of the consolidated litigation over last year’s Gulf of Mexico oil disaster, corporate defendants told U.S. District Court Judge Carl Barbier Thursday that claims for economic damage, claims by first responders who got sick from cleaning up the oil, and suits by environmental advocacy groups should be dismissed.
The hearing marked the first attempt to sort through how laws such as the Oil Pollution Act of 1990, the Clean Water Act, the Outer Continental Shelf Lands Act, maritime law and state law interact.
If BP and the other companies that played a role in last year’s explosion of the Deepwater Horizon drilling rig and 86-day undersea oil gusher are successful in their motions to dismiss, it would gut the litigation, since most of the claims filed in court deal with economic losses.
At the conclusion of the four-hour status conference and hearing, Barbier did not indicate how quickly he would rule.
Andrew Langan, attorney for BP, which has been designated as the “responsible party” in the case because it held the lease on the Macondo well, told the court that people who believe they suffered economic losses in the oil disaster must go through the Gulf Coast Claims Facility before filing suit. The Oil Pollution Act of 1990 is very clear: anyone harmed by the spill must present a claim to the responsible party, and that claim must be denied before an aggrieved party can sue in court, Langan said. “They’re not supposed to be in court right now,” he said.
Langan said that claims should be dismissed without prejudice so that disgruntled parties are free to come back into court if the Gulf Coast Claims Facility, the Kenneth Feinberg-administered fund that is handing out $20 billion from BP to those who suffered losses because of the oil spill, can’t solve their problems.
Langan further said that since the Oil Pollution Act was developed so that there would be a specific law for dealing with oil spills, OPA trumps general maritime law in the case. Unlike maritime law, which offers punitive damages, OPA doesn’t offer punitive damages, so they’re not available in this case.
Because the blowout occurred on the Outer Continental Shelf, Langan also said that state law doesn’t apply.
But while Langan argued law, Barbier indicated that he’s concerned with the practical implications of booting claims from court, forcing people to work through the Gulf Coast Claims Facility and opening the possibility that claims could trickle back into court one at time. “I could rule as a matter of law, but I don’t want to down the road have to deal with individual rulings on 100,000 claims,” Barbier said.
Some 494 lawsuits have been consolidated by a national panel in Barbier’s court, and more than 100,000 individuals filed special “short forms” to sign up for the litigation. Once the clerk’s office finishes entering all of them into the record, individual filings are expected to number 120,000 to 130,000.
Langan also argued that claims brought by people who lost jobs because of the federal government’s moratorium on deepwater oil exploration do not belong in the litigation, because their problems weren’t directly caused by the well blowout. “It is our position that moratorium plaintiffs do no satisfy direct causation requirements,” he said.
John Elsley, an attorney for Transocean Ltd., the owner of the Deepwater Horizon rig, said that economic damage claims against his client should be dismissed because OPA requires that people present claims to BP as the responsible party, and it’s up to BP to seek contributions from other companies involved in the blowout. Transocean has been deemed a “responsible party” for the diesel fuel that spilled from the rig at the surface of the water when it sank, but not the undersea oil, and people are suing because of the oil, not the diesel fuel.
Other companies, such as Anadarko, which owned a 25 percent stake in the well; Halliburton, which performed the cement job on the well; and Cameron International, which manufactured the blowout preventer, offered their own twists on why economic claims against them did not have standing.
But plaintiff attorneys in the case argued that the economic damage claims need to stay right where they are.
Plaintiff Steering Committee member Jeffrey Breit argued that Congress created OPA after the Exxon-Valdez accident in 1989 because remedies available at the time under maritime law were insufficient. But the corporate defendants are trying to take that legislation and use it as a “shield” to get people out of court, Breit said.
If for some reason parties weren’t able to win court judgements against BP, and maritime law was off the table, as the defendants argue, Breit said that there would be no way for plaintiffs to pursue the other companies that contributed to the disaster.
Also arguing on behalf of the plaintiffs, Baton Rouge attorney John W. deGravelles said that punitive damages do exist because OPA does not express clear intent to displace maritime law, which offers punitive damages. Other statutes that prevent punitive damages specifically prohibit them.
Co-lead plaintiff attorney Steve Herman said that moratorium claims do belong in the litigation because it was foreseeable that the government would take such a step after watching the oil damage natural resources and having limited resources with which to fight the oil.
Elizabeth Cabraser, another attorney on the plaintiff committee, challenged the notion that Anadarko should be shielded from negligence claims, saying that depositions have so far indicated that Anadarko was much more in the loop on what was happening on the rig than the company wants tolet on.
Barbier challenged the plaintiff attorneys several times, asking Breit if he had case law to support his assertions and quoting defendants’ briefs that while OPA expanded rights, Congress sought a balancing act by increasing the number of people who could collect in oil disaster, but placing limits on what damages are available and how much.
Barbier again alluded to the conflict between law and practicality in the face of tens of thousands of economic damage claims. “If they’re right on the law, how should I proceed?” Barbier asked Herman. “I’m trying to figure a practical way to address this.”
Herman responded that he thought it would be a waste of time and judicial resources to comb through each individual claim to determine if it was properly presented to the court.
Attention soon turned to claims brought by people who believethey were harmed by chemical dispersants used to break up the oil, smoke from burning the oil or efforts to clean up the oil itself.
Mary Rose Alexander, an attorney for dispersant manufacturer Nalco, said that her client should be immune from suits because the federal government was in total control of the response, and her client’s product was a named part of the plan. “This was a spill of national significance, which put all of the decision-making in the hands of the federal government,” she said.
Michael Lyle, an attorney for O’Brien Response Management Inc. and National Response Corp., companies that laid boom, burned oil and applied dispersant, said that the federal government is immune from claims in trying to clean up the oil, and by extension, his clients should be, too. Lyle said that the situation is similar to the clean-up of the World Trade Center in 2001: the federal government was in charge, and if the government wants to be able rely on clean-up contractors in the future, immunity must be extended.
But plaintiff steering committee attorney Robin Greenwald countered that these companies weren’t just idly sitting by, awaiting orders from the government. The World Trade Center analogy doesn’t hold because the U.S. government and the City of New York were cleaning up because terrorists were the responsible party, and this case, the clean-up companies were working for BP, which had choices of things like what type of dispersant to use. “None of these companies work for the government. They work for BP. They work for the polluter. From where do they derive the immunity?” she said.
With only moments to go in the allotted three hours of testimony, Langan told Barbier that litigation brought by citizen advocacy groups such as environmental groups should be dismissed because the government is already handling the subjects that they’re litigating. “The citizen suits are no more than a distraction. The government is already engaged,” he said.
Representatives of environmental groups tried to counter that while the federal government has reserved the right to take actions such as pressing claims under the Endangered Species Act, it hasn’t actually done so yet, and there wasn’t much reason for confidence since the government failed its duties to prevent the oil blowout through careful regulation and law enforcement.
