Harry Susman
With all the questions arising from the Deepwater Horizon explosion, defense attorney organization DRI recently hosted an oil spill litigation conference in Houston.
Multiple guest speakers at the Houstonian Hotel on Aug. 12-13 addressed pressing topics such as theories of liability, health effects, the Jones Act and the Oil Pollution Act of 1990 – the statute which will have the greatest impact on how BP oil spill litigation proceeds.
OPA was introduced by Congress following the 1989 Exxon Valdez oil spill. Ken Feinberg, BP's selection to govern the $20 billion settlement fund, has publicly stated that OPA will be his guide in distributing money from the account.
"It (OPA) is going to make it very easy for us to sue," said keynote speaker Harry Susman, a managing partner at the Houston law firm Susman Godfrey, adding that a "big question mark" still exists on whether BP lawsuits will be a part of or paid out of the settlement fund.
"Either way, I still think there's going to be a lot of litigation," Susman said. "We're going to need an OPA class action to resolve all of this, but there's a huge question mark if you can even have an OPA class action."
Adding to the list of question marks, Susman said there is no case law under OPA governing the scope of claims stemming from the spill, which includes restaurant owners, BP gas station owners and tourists.
He added that oil companies adversely affected by the Gulf of Mexico drilling moratorium will also most likely sue BP for loss of business.
A month following the rig explosion, President Barack Obama issued a six-month drilling moratorium in the Gulf to explore and discover the causes behind the tragedy.
However, one guest speaker believes toxic tort claims will not play a huge role in the variety of litigation gushing from the April 20 disaster.
Even though he believes there's "going to be an unprecedented level of litigation taking place," Dr. David Galbraith, a scientist for the San Francisco-based ChemRisk company, says "neither the dispersants" used to clean the oil or the oil itself are "too toxic."
Galbraith said laborers working to clean up the oil are at greater risk for heat exposure than harmful chemical exposure.
He did admit, however, the dispersants and oil may combine with an unknown element to produce a carcinogenic chemical. He said such an act would "be unlikely but not impossible."
Galbraith concluded by saying that in his opinion, a class-action certification will be difficult to achieve because of the variety of claims.
As far as what went wrong on Deepwater Horizon, Marion Woolie, a retired offshore drilling executive, says "a lot of things" and that "we may never know what really happened," since "all the evidence is strewn across the ocean floor."
Woolie pointed to employee training, organization structure and "company culture" as possible reasons behind the disaster, saying it's hard to overlook BP's incident track record over the past several years. "Is it bad luck, or is something different here?"
A moratorium isn't necessarily helpful in figuring out what's wrong either, Woolie said, adding that addressing the Jones Act before hand would be more helpful.
The Jones Act is legislation enacted to protect marine workers and injured seaman. At first, President Obama declined to temporarily repeal the Jones Act to allow foreign oil skimmers into the Gulf to assist in the clean up.
Woolie said the Jones Act should have been addressed sooner to allow the skimmers to have access.
DRI is the international organization of attorneys defending the interests of business and individuals in civil litigation.