Former Texas justice to represent BP in state litigation

By Steve Korris | Jun 2, 2010


AUSTIN – Former Texas Supreme Court Justice Scott Brister will lead BP Exploration and Production's defense in state litigation over the oil spill in the Gulf of Mexico.

On May 21, Brister asked judges on the state multi district litigation panel to consolidate cases before three judges and transfer them to a single judge. The cases involve 10 plaintiffs and seven intervenors.

Brister resigned from the Texas Supreme Court last September, in the fifth year of a six-year term he won in 2004. He now practices at Andrews Kurth in Austin.

Brister also asked for an emergency order that would stay discovery and other pretrial proceedings until the panel decides whether to transfer.

"There will be a proper time and place for full discovery regarding the Deepwater Horizon incident, but that time is not now," he wrote.
Management and personnel must focus on closing the well and containing the spill, he wrote.

"Until those goals are accomplished, they should not be pulled off mitigation to focus on litigation," he wrote.

The multi district panel can gather related cases from around the state and assign them to a judge for pretrial proceedings.

Brister wrote in his motion for consolidation that, "There can be no question that just and efficient conduct of the related cases requires transfer to an MDL court."

He wrote, "They all involve piecing together what happened 5,000 feet underwater and as much as three miles below the seabed surface."

Brister noted that plaintiffs started filing suits within 48 hours, and more than 100 have been filed nationally.

In Texas, he wrote, two suits were filed in Harris County district court and one in Galveston County court at law.

He recommended consolidation in Harris County, where BPXP and other defendants maintain their principal places of business.

Some plaintiffs are Harris County residents, he wrote, and others are residents of Mississippi and Louisiana.

"As the nonresidents all filed suit in the Houston area, they can hardly deny that litigating there would be convenient," he wrote.

He urged the panel to "reorder priorities so that mitigation takes priority over litigation."

He warned that the presence of intervenors demonstrated the need for a consistent and steady judicial hand.

"The Texas Supreme Court made clear in 2008 that plaintiffs cannot avoid random assignment of new cases by intervening in an existing suit," he wrote.

"In an incident like the Deepwater Horizon, the potential for publicity and additional claimants may provide incentives for attorneys to cut corners," he wrote.

"This panel should transfer the related cases to a well respected judge who can be trusted to provide fairness and justice for all concerned," he wrote.

While BP seeks to consolidate cases from Texas state courts, it seeks the same treatment of cases in federal courts.

The federal panel on multi district litigation has set a July 29 hearing on consolidation.

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