Barbier to allow evidence of government liability at upcoming BP trial

By Steve Korris | Dec 6, 2011


NEW ORLEANS � U. S. District Judge Carl Barbier will allow evidence of possible government liability for the Deepwater Horizon explosion at a fault allocation trial he plans to start in February.

Minutes of a Nov. 18 hearing show he denied the motion of a plaintiff steering committee to exclude evidence regarding non parties and immune parties. As of Dec. 5, he hadn't signed an order.

The committee filed the motion on Sept. 30, arguing that any alleged fault of the United States was irrelevant and admissible.

Committee leaders Stephen Herman of New Orleans and Jim Roy of Lafayette wrote that the United States is immune from suit by plaintiffs and third party claimants.

They wrote that "an action may be brought against the U. S. only to the extent that the government waives its sovereign immunity by consenting to be sued."

"Moreover, with respect to post spill acts and omissions, the Clean Water Act expressly exempts the United States from any liability."

Rig operator BP opposed the motion on Oct. 24, arguing it would hamstring its defense against gross negligence claims.

Don Haycraft of New Orleans wrote that U. S. agencies approved or directed the conduct that forms the foundation of plaintiffs' claims.

He wrote that BP wouldn't seek to prove the U. S. is financially liable.

The evidence relates to punitive damage claims, he wrote, and punitive damages based on the design of the Macondo well would be inappropriate because the federal government approved the design.

He wrote that the evidence relates to Clean Water Act penalties.

"Government approvals of BP's activities at the well site and BP's adherence to government decision making after the spill are clearly relevant to BP's degree of fault and to the proper dispensation of justice in this case," he wrote.

The evidence relates to the effect of government decisions on the size or duration of the spill and bears on relative fault among private parties. He wrote that while BP received approval, rig owner Transocean failed to execute plans, maintain a safe environment, or respond properly.

He wrote that Transocean licensed the rig in the Marshall Islands to avoid flagging it in the United States.

Kerry Miller of New Orleans opposed the motion for Transocean on the same day, arguing sovereign immunity doesn't bar a claim of offset or recoupment.

"The court needs to consider all evidence relevant to what happened and why," he wrote.

He wrote that the U. S. rubber stamped risky last minute changes in BP's temporary abandonment plans without a safety analysis.

The U. S. seeks civil penalties under the Clean Water Act and declaratory relief for natural resource damage and response costs under the Oil Pollution Act. He wrote that the U. S. allowed BP to deviate from regulations on the height of the surface plug, resulting in severe under balancing of the well during displacement.

"The United States delayed the use of methods which could have controlled the well sooner," he wrote.

Ky Kirby of Washington opposed the motion for BP minority partner Anadarko Petroleum on the same day, arguing it failed to identify specific evidence to be excluded.

"Even if the United States is statutorily immune from liability, evidence of the United States' conduct at all stages of the incident is critical to a full understanding of the casualty and oil spill and cannot be excluded from the trial," she wrote.

On Oct. 31, the government replied that Transocean's offset and recoupment claims failed because the Oil Pollution Act doesn't permit equitable defenses.

Assistant attorney general Ignacia Moreno wrote that a motion to dismiss Transocean's third party claim against the government for lack of jurisdiction is ripe for decision.

On the same day, the plaintiff committee replied that the scheme of BP, Transocean, and Anadarko could limit recovery by apportioning fault to immune parties.

At the hearing, BP lawyer Andy Langan of Chicago argued for defendants and Roy argued for plaintiffs.

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