Taming the BP beast

Judge cracks whip to keep litigation moving.

, The National Law Journal


Less than two years after the Deepwater Horizon rig exploded, killing 11 workers and pouring millions of gallons of oil into the Gulf of Mexico, more than 500 lawsuits have been filed against BP PLC and other defendants. Consolidated into one of the largest multidistrict litigation proceedings on record, the claims are moving toward trial at astonishing speed, considering their complexity.

During an Aug. 12 status hearing, U.S. District Judge Carl Barbier, who is overseeing the litigation against BP and other defendants, approved a rapid timetable for resolving the unwieldy assortment of claims for personal injuries, environmental violations and economic ­losses. "Again, lest anyone have any doubt about it, I fully intend that this trial will start as scheduled," he said. The bench trial is set for Feb. 27, 2012.

Barbier has made some moves to manage the litigation. He ordered that certain claims and their related legal theories should be organized into pleading "bundles." Since June, he has issued three orders on motions to dismiss all or a portion of some of those bundles.

So far, the swift pace has contrasted noticeably with the lengthy litigation that followed the 1989 Exxon Valdez spill, which finally concluded in June 2009. It represents an impressive speed for a multidistrict litigation, some of which don't go to trial for several years.

"It's fairly unprecedented in an MDL of this size — if there has ever been an MDL of this size — to have a trial date within less than two years of the event," said Steve Herman of New Orleans-based Herman Herman Katz & Cotlar, co-lead counsel on the plaintiffs' steering committee. "It's the determination of the judge and the willingness of the parties to work together to try to resolve the case and not have it dither around like the Exxon Valdez case did."

Barbier acknowledged as much during the August hearing. "I'm still pleasantly amazed at what you all have been able to do and accomplish," he told the lawyers. "One year exactly since I was assigned to this case, I think we've all made good progress here."


The BP MDL would certainly appear a beast. "This is 20 times bigger than the Exxon Valdez spill and it has impacted 10 times the number of plaintiffs or more," said Gerry Nolting, a partner at Faegre & Benson in Minneapolis who was a lead member of the plaintiffs' trial team in the Exxon Val­dez case. "It is a much, much bigger case."

In the Exxon Valdez case, which ultimately targeted a single defendant, the trial took place five years after the spill, he said. The BP case involves more than half a dozen defendants, all accused of bearing some responsibility for the catastrophe.

According to a survey of the docket by The National Law Journal, there were 511 cases in the MDL. The cases were brought originally in state courts and federal courts across the nation, mostly in Louisiana, Alabama, Texas and Florida. A few have settled or been dismissed. But the number has grown substantially since an original 77 were consolidated last year.

Outside the MDL, another 34 cases in various state courts across the county are pending against many of the same defendants. The first trial in the nation related to the Deepwater Horizon spill is scheduled for Oct. 17 in Galveston County, Texas, on allegations that a worker involved in cleaning up the spill became sick after inhaling natural gas following a docking accident.

Barbier said he would reach out to the judge in that case to "make sure that, hopefully, there's nothing that will interfere with what we're trying to accomplish in this case."

Lawyers in the Texas case declined to comment.

There is a separate MDL in front of U.S. District Judge Keith Ellison in Houston involving lawsuits filed by BP shareholders who allege that company executives made false and misleading statements about safety procedures. BP has filed motions to dismiss those cases.

But most of the litigation, despite a wide scope of claims, is contained in the MDL before Barbier. In addition to the lawsuits, Barbier is overseeing more than 108,000 short-form joinders, BP lawyer Andrew Langan, a partner at Kirkland & Ellis. These are additional claims, one to two pages long, filed in an action in federal court in Houston that Transocean Ltd. brought under the U.S. Limitation of Liability Act of 1851. The limitation action is technically designed to limit the damages that Transocean ends up paying for the Deepwater Horizon explosion. But the move had the intended effect of bringing the other defendants, such as BP, into the case.

And Barbier's decision to take over the limitation action, rather than allow it to be tried in Houston, expanded the number of claimants in the MDL from hundreds to thousands.

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