The Gulf oil spill litigation continues to move at a very rapid pace heading toward a trial starting on February 27th of next year. Here is a brief summary of several events and reports on the oil spill disaster. Currently, we have had 19 lawyers and a large number of support staff working virtually full-time on this litigation. As previously reported, our firm is currently representing over 2,500 individual clients in the MDL. We also have a lawyer from the firm, Rhon Jones, serving on the Plaintiffs’ Steering Committee (PSC). Rhon is working on some extremely important matters for all of the Gulf Coast states relating to damages.
BP and Nalco are not immune from liability for personal injury toxic exposure cases and can be subject to punitive damages. Judge Barbier, the federal judge handling the MDL litigation, has issued another major ruling in the oil spill case. This ruling pertains to folks who were exposed to oil and chemical dispersant while residing on the coast or working in the oil spill cleanup. Certain Defendants had requested Judge Barbier to declare that they were immune from suit. Under a theory of derivative immunity, certain Defendants (including Nalco, the manufacturer of the chemical Dispersant COREXIT 9500 and COREXIT EC 9527 used during the cleanup) contended that they were immune from suit because they were working at the direction of the federal government. The Plaintiffs’ Steering Committee correctly argued that, based on the known facts, BP took control of the cleanup operations and exceeded the permitted use of dispersant in the Gulf of Mexico. Judge Barbier sided with the PSC, and denied the Defendants’ immunity requirements.
In addition, Judge Barbier sided with the PSC and determined that medical monitoring costs may be available where a Plaintiff’s injury consists of a disease or symptom, or some sort of emotional distress that would qualify as an injury from exposure to chemical dispersant or oil constituents. Plaintiffs who did not allege a physical injury would not be able to seek medical monitoring costs, but could be entitled to relief if they started showing symptoms later.
The Court also stated that personal injury exposure Plaintiffs would be entitled to general maritime claims for negligence, gross negligence and maritime products liability claims against the chemical dispersant manufacturers. Finally, non-seaman Plaintiffs will be entitled to seek punitive damages for chemical exposure injuries based on previous Supreme Court precedent.
GCCF Audit Investigation Update. Recently, two U.S. Senators, Roger Wicker from Mississippi, and Marco Rubio from Florida, authored an amendment to a Senate bill that would lay the groundwork for an audit of the Gulf Coast Claims Facility (GCCF). I am pleased to report that the Senate approved the amendment and has ordered an independent audit of the GCCF. U.S. Rep. Steven Palazzo, (R-Biloxi) made this observation:
A Department of Justice audit of the GCCF is overdue. Gulf Coast residents need certainty about the fairness and transparency of the claims process.
Since its inception, the GCCF has paid claims at an alarmingly slow rate – and many Gulf Coast residents have not been paid at all. During the Christmas season last year, the GCCF began its “quick pay” final claims process, which pays individuals $5,000 and businesses, $25,000 to settle their cases. While Claimants can file full review final and interim claims, the reality is, their interim claims are often denied with a “quick pay” final offer.
Hopefully, the GCCF audit, which is already in progress, will provide the needed transparency and fairness to people throughout the Gulf Coast. Regardless, I still believe very strongly that the MDL Court in New Orleans provides the most transparent, fair resolution to all oil spill claims. That court is the only place where complete justice for Claimants can be guaranteed.
Source: The Sun Herald
Oil Spill Fines By The Federal Government Against BP are but a “Slap on the Wrist.” BP, and its contactors Transocean and Halliburton, were cited in October by the Interior Department for numerous safety violations in operations that caused the Deepwater Horizon oil spill last year. The Department and the Coast Guard found in the report that BP, Transocean and Halliburton had failed to operate the drilling rig in a safe and responsible manner, had heedlessly endangered their workers, had not followed proper well control procedures and had not properly maintained safety equipment, including the blowout preventer.
The claims represent the first time the government has cited contractors rather than just a well’s principal owner, in this case BP, for safety violations. The companies have 60 days to appeal the government’s citations. Michael R. Bromwich, head of the Department’s offshore safety office, had this to say:
The joint investigation clearly revealed the violation of numerous federal regulations designed to protect the integrity of offshore operations. To ensure the safe and environmentally responsible conduct of offshore operations, companies that violate federal regulations must be held accountable.
Even given the government’s findings, some believe the citations amount to nothing more than a slap on the wrist. Under the law, fines are capped at $35,000 per day, per incident for violations. Rep. Edward Markey (D-Mass) calls for stronger penalties, saying:
The fine obviously does not even begin to approach the amount needed to be a deterrent against a repeat of this tragedy. That fine is a slap on the wrist.
Rep. Markey estimates that the total fine against BP would be $21 million for its seven violations, which by his estimates is only seven hours of profit for the company on a given day. Halliburton and Transocean would face at most $12 million in fines.
Source: Truth-out; Reuters; The New York Times
BP Wants US Probes Barred From Oil Spill Suits. The companies involved in the worst offshore oil spill in U.S. history are now trying hard to prevent government investigations blaming them for the disaster from being used against them by the people and businesses who are suing them. The trial scheduled for February will determine whether rig owner Transocean can limit what it pays Claimants under maritime law and assign percentages of fault to Transocean and other companies involved. BP, Transocean and Halliburton filed motions on November 7th seeking to keep certain government oil spill reports from being used in the trial. BP also wants the court to bar Plaintiffs’ lawyers from using past criminal, civil and regulatory proceedings against the company in the civil case.
BP And Coast Guard Want To Stop Oil Spill Cleanup. The U.S. Coast Guard and BP PLC have agreed on a plan to determine when oil spill cleanup work can stop along sections of the Gulf Coast. Environmentalists are not at all happy with this development and charge that, with the plan, the Coast Guard “let BP off the hook.” Hopefully, this announcement doesn’t mean that the cleanup is over. It does indicate that officials are starting to turn their attention to repairing the long-term environmental damage done by last year’s disaster. But environmental advocates said that too much oil is still hitting the coastline for officials to contemplate moving past the cleanup phase.
Mobile Baykeeper Casi Callaway pointed out that Alabama’s pristine sugar sand beaches have never had tarballs like are being seen now. She said that it’s clear this is BP’s oil and that BP must continue to clean it up every single time it washes ashore. The Louisiana-based Gulf Restoration Network echoed that view, saying that “BP’s oil is still in the Gulf, and it is the Coast Guard’s legal responsibility to hold BP accountable for cleaning it up.”
Under the plan, a host of government officials will determine whether a particular area is clean enough for continuous cleanup operations to stop. The required level of cleanliness varies by area. Beaches must have either no oil from BP’s blown Macondo well or as little oil “as reasonably practicable, considering the allowed treatment methods and net environmental benefit,” the plan said. In marshes and environmentally sensitive areas, there must be no “flushable” oil and no “thick oil.” The cleanup of such areas is limited by concerns that removing the oil could cause more environmental damage than leaving it in place.
When an area meets these tests, BP can stop continuously patrolling for oil. If oil is discovered after that point, it would be tested, and BP would only have to clean it up if the tests showed that it came from the company’s blown well. I am not comfortable with BP making that type call. There are a number of obvious questions, such as who will pay for the oil to be tested.
The Gulf Restoration Network believes that the plan does too little to monitor whether additional oil is washing ashore. Citing similar concerns, officials from the state of Louisiana refused to approve the plan. But it appears Alabama and Mississippi are on board. Fortunately, Alabama Gov. Robert Bentley has reservations, saying it is “not yet time for cleanup work in Alabama to stop.” He stated that while Alabama has approved the plan his response can’t be taken as accepting that the cleanup is complete. BP officials told reporters that they and federal officials “believe that more than 90% of the impacted shoreline across the Gulf of Mexico from this event has achieved that standard of cleaning” laid out by the plan. I don’t believe for a minute that 90% of the oil is gone and neither do I believe that BP does either.
Dead Dolphins Continue to Wash Ashore. As we have reported previously, hundreds of dead dolphins have washed ashore since the Deepwater Horizon oil spill occurred, the last ones as late as November 27th. Unfortunately, those disturbing trends appear to be continuing. Since the oil spill occurred, about 600 dolphins have washed ashore. To put that number in perspective, only a handful of dolphins on average wash ashore each year. The obvious difference is – in those previous years – there was no oil spill. Suzanne Smith, stranding and rescue coordinator for the Audubon Nature Institute, has observed:
Everybody knows that there’s something going on. What that something is, is what we’re working really hard to try and find. We are doing necropsies.
The federal government, through NOAA, declared the Northern Gulf Coast area an “Unusual Mortality Event.” “We do know that BP put a historic amount of oil in the Gulf of Mexico, in the marine habitat that the dolphins live in, in the coastal habitat that the dolphins use and then they topped it off with a historic amount of dispersant,” said Aaron Viles with the Gulf Restoration Network. Dr. Moby Solangi, director of the Institute for Marine Mammal Studies in Gulfport, Miss., believes dolphins are facing an emergency in the northern Gulf right now. “If these animals are not healthy, then, ultimately, we may not be healthy,” Dr. Solangi said.
Previously, oil found on many of the dead dolphins was confirmed to be Macondo oil from the Deepwater Horizon oil spill. Now, scientists have confirmed the presence of the bacteria Brucella in five of 21 bottlenose dolphins that died in the northern Gulf of Mexico. Dr. Teri Rowles, coordinator of NOAA’s National Marine Mammal Health and Stranding Response Program, believes that “Severe environmental stress, including from exposure to oil, could have reduced the animals’ ability to fight infection.”
Source: St. Petersburg Times; Summit Voice; and WWLTV.com News
A Look Back at the Great Exxon Valdez Fish Kill. Since the Deepwater Horizon oil spill occurred, many have compared the disaster to the Exxon Valdez oil spill that occurred in Alaska on March 24, 1989. When the Exxon Valdez ran aground in Prince Williams Sound, the ship spilled at a minimum 11 million gallons of oil. After the spill, the herring population started showing signs of sickness – including skin lesions. In 1993, the herring fishery population completely crashed and has never returned to normal in the Sound. Before the spill, the herring population played an important role in the diet of many species in the Sound, including seabirds, salmon and large predatory fish. In addition, the herring population was a major source of economic revenue for commercial fishermen that harvested the species.
Fast forward to the Deepwater Horizon oil spill. The disaster was so significant that by some estimates, the Macondo well was spilling an Exxon Valdez disaster every couple of days. When you look at what happened to the Prince William Sound herring population after the Exxon Valdez disaster, there should be no surprise that hundreds of dead dolphins are washing ashore, and fish are being caught in the Gulf with lesions, fin rot, discolorations, and missing appendages. University of West Florida biologist William Patterson, III, who has been studying fish, including red snapper, for 15 years, has never seen anything like this before. He says:
I’ve had tens of thousands of fish in my hands and not seen these symptoms in so many fish before. All those symptoms have been seen naturally before, but it’s a matter of them all coming at once that we’re concerned about.
Some fishermen who have fished certain parts of the Gulf for decades are now reporting that those areas seem dead. Scientists are continuing to wrangle over whether the current fish abnormalities are being caused by the oil spill. But, if you look at what happened to Prince William Sound after Exxon Valdez, I would ask our readers whether it is really any surprise we are seeing the same type of problems in the Gulf of Mexico after the Deepwater Horizon spill?
Source: Pensacola News Journal
Update on the Vessels of Opportunity Litigation. After the oil spill, folks along the Gulf Coast were hired in the Vessels of Opportunity (“VOO”) program by BP to work in cleaning up the oil spill. After signing their contracts, many of those workers were not actually placed in cleanup. Rather, they were placed on standby with strict orders to remain available at all hours of the day to be placed on call. While on standby, the workers were beholden to BP, and could not perform other work because once they were placed on call, the workers had a very limited amount of time to be ready to work. The alternative for many people if they performed other work was to lose what appeared to be the only stable job in the midst of the oil spill crisis. Some people waited months to actually be placed on call, only to be given a very limited amount of work – or in some cases, no work at all.
While BP has refused to pay these folks for their wait time, Judge Barbier has ordered that these claims be placed on a separate track where they hopefully can be resolved. Recently, the Plaintiffs’ Steering Committee filed a motion for summary judgment on the key contractual issues surrounding the VOO program, and I can now report that motion is fully briefed before the Court. After the Court rules on whether VOO participants are entitled to “off hire” pay, the parties will work to resolve these cases.
Our firm is currently reviewing and assisting folks that were not paid for their wait time in BP’s VOO program. If you have any questions about these claims, please feel free to contact Rhon Jones or Parker Miller, lawyers in our firm, at Rhon.Jones@beasleyallen.com and Parker.Miller@beasleyallen.com.
BP Told It Can’t Use Transocean Insurance For Gulf Spill. Judge Barbier, in another important ruling, has rejected BP Plc’s bid to use insurance coverage from Transocean Ltd to cover costs stemming from last year’s record oil spill in the Gulf of Mexico. This decision rejected BP’s bid to gain access to $750 million of insurance coverage under nine separate policies. This was another legal setback recently for BP. As noted above, Judge Barbier ruled that Alabama and Louisiana may recover punitive damages from BP and other companies for spill damages. Judge Barbier wrote concerning the pollution liabilities:
BP, under the drilling contract, assumed responsibility for Macondo well oil release pollution liabilities. The Deepwater Horizon incident entailed a subsurface release; thus, Transocean did not assume pollution liabilities arising from the incident.
Source: Insurance Journal
Personal Injury Claims. To say these recent rulings by Judge Barbier are significant for our clients would be an understatement. We currently represent a number of individuals who have injury claims. Many of our clients who worked in the cleanup program or resided close to the beach are suffering from severe headaches, nausea, diminishing respiratory function, continuing skin and eye irritations, and gastrointestinal problems. If you have any questions about personal injury claims related to exposure to oil and toxic chemical dispersant, please contact Parker Miller at Parker.Miller@beasleyallen.com or Kyle Shirley at Kyle.Shirley@beasleyallen.com.
The Trial in February, 2012. We fully expect the February trial to start as expected. Judge Barbier is a no-nonsense, all-business judge and he has kept both sides to this litigation focused and on track. We will be ready for trial and expect things to do well for the Claimants’ side.
Hopefully, the above summary will give our readers more insight into what is going on with the BP litigation. If you need more information on the subject, contact Sandra Walters at 800-898-2034 or by email at Sandra.Walters@beasleyallen.com and she will put you in touch with the appropriate lawyer in the firm.
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