With more than 100,000 claims filed by last week's deadline for the February 2012 trial over the Gulf of Mexico oil disaster, attorneys in the case are now confronting their most difficult question yet: what, exactly, should that trial encompass?
The trial proposals, which will be discussed at Friday morning's monthly status conference before U.S. District Court Judge Carl Barbier, are all over the map.
The plaintiffs, the state of Alabama, and in a strange twist -- Transocean -- want a quick and far-reaching trial of liability issues for all parties encompassing everything from the blowout to efforts to stop the oil, to how much oil was spilled and economic losses. Their vision would include consideration of punitive damages.
BP wants to focus narrowly on the events leading up the blowout and sinking of the rig and leave out what happened after the gusher began. It envisions an extended trial in multiple phases with several-month breaks in between. It would not address questions of punitive or compensatory damages, efforts to control the well after the blowout, or how much oil was actually spilled.
Other parties are somewhere in between. The U.S. government's ideas are similar to the plaintiffs' and Transocean's, but it wants to take a rest between the events leading to the blowout and what happened afterward to keep up with document demands. Louisiana wants to keep its options open. Halliburton likes some of what BP has to say, but rejects the idea of focusing on the "initiation" of the flow of oil, and says that no economic loss claims should be part of the initial proceeding. Anadarko and Moex, the minor partners in the well, generally agree with BP. Cameron put forth a philosophical treatise on what legal issues are to be tried and how, and said that it wants to be tried under Louisiana law pursuant to the Outer Continental Shelf Lands Act before a jury.
While the clock ticks toward the trial ten months from now in the case that could be one of the largest and most complex corporate cases ever, the parties to the case have been meeting with Magistrate Judge Sally Shushan and Special Master Francis McGovern to try to work through their differences.
All of this is very, very far from what was originally contemplated for the opening event of the litigation on Feb. 27, 2012 -- the Monday after Mardi Gras.
In theory, the trial date is for an obscure maritime law proceeding brought by Transocean called the Limitation of Shipowner's Liability Act. Transocean, which owned the Deepwater Horizon rig, initially invoked the 1851 statute to try to limit its financial exposure to the $27 million value of the sunken rig. According to a Transocean statement when the case was filed last May in Houston, the case is supposed to deal only with matters of injury, death and property damage from the explosion.
But as a practical matter, it appears that Transocean has decided that it's in its interests to get the full picture of who's at fault out in the open as quickly as possible rather than be the only one in the spotlight.
Edward Sherman, a law professor at Tulane who studies complex litigation such as the oil disaster, said it also works well for Judge Barbier to take advantage of the limitation of liability proceeding to try to get as many issues on the table as possible. Barbier's role as a judge is to try to resolve disputes as efficiently as possible, so it would be a missed opportunity not to take advantage of the trial and anything that could push the parties toward settlement. But at the same time, whatever is ultimately put into the event must relate back to the original questions of limiting Transocean's liability.
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BP and other defendants note that the court is already going at full-tilt taking as many as three depositions every day to get to the bottom of the events leading to the blowout and shoehorning more issues into the trial would require even more depositions by more people.
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Ultimately, the issue may be less about the "trial plan" and more about the practical consideration of how quickly discovery can be scheduled for each phase of a long trial that would proceed chronologically through the disaster.
Whatever the ultimate form, it appears long and grueling. The plaintiffs propose a trial on comprehensive liability issues that would run Feb. 27 to May 15, 2012, a month break, and then a trial of experts that would run from June 15 to July 15, 2012.
BP proposes one big trial in multiple phases. The first would deal with liability and fault for the events leading up to the blowout on April 20 and the sinking of the rig April 22 that would last for about three months. A second phase dealing with efforts to control the flow of oil into the Gulf, cap the well, and questions of the volume of oil spilled and its geographic reach would begin in November and continue for about four months.
Other phases of the trial dealing with claims against oil spill responders, economic damages and penalties, relief and natural resource damages would occur later after appropriate amounts of discovery, BP said.