We object: Why BP’s $8.7 billion deal is “a failed settlement”

The last couple of weeks have brought a lot of news – both good and bad – down here to the Gulf Coast. Hurricane Isaac was a double whammy; the storm itself destroyed homes and upended people’s lives, but it also stirred up a ton of BP’s oil. There’s believed to be as much as 1 million barrels of oil still polluting our waters, some 29 months after the Deepwater Horizon catastrophe. That is simply not acceptable.

The good news is that the people of the Gulf Coast – including our government officials – are showing a backbone and standing up to BP. The oil giant is trying to ram through a $8.7 billion settlement with thousands of residents and business owners harmed by its recklessness in the drilling rig disaster.  As I noted last week, that sounds like a big number but it won’t come close for making right on the Gulf Coast – especially as recent events show the environmental carnage from Deepwater Horizon is an ongoing affair.

My law firm – SmithStag LLC, which represents numerous clients with claims against BP, has joined with a second firm — Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A. — to also file papers (here and here) (here and here) objecting to BP’s proposed settlement on behalf of our clients. We believe that a decision by Judge Barbier to approve this proposed deal will cause harm and delay the ability of tens of thousands of Gulf Coast residents to ultimately receive justice.

As part of our objection, we engaged some of the region’s top experts to show that the damage caused by BP is both more serious and more persistent than many people realize. Here are some highlights and some links:

– William Sawyer, chief toxicologist at Toxicology Consultants and Assessment Specialists, LLC, Sanibel, Florida, filed an affidavit noting that his testing of the Gulf Coast in Louisiana uncovered airborne carcinogens such as benzene and toluene and petroleum in beach sediments with the potential to induce kidney and liver disease. He said the tests that BP carried out – as well as those conducted by the U.S. Labor Department and the Coast Guard — excluded too many key chemicals.

He argues that the studies and discussions of health impacts in the proposed deal are grossly inadequate — failing to take into account the culmulative effect of exposure to so many compounds and evidence of severe medical problems in the wake of past, far less extensive oil spills.

Sawyer strongly rebuts BP’s claim that the Gulf has been largely oil free since 2010:

Nevertheless, after more than two years of observation and laboratory work, the heavy and widespread nature of this 2012 oiling event and essentially, a striking repeat of conditions found in August of 2010 in the same heavily impacted areas, there is no other conclusion to be made but that the Deepwater Horizon oil spill continues.  It continues because oil has been buried in the sands or lies underwater needing only an event such as Hurricane Isaac to create more resource losses and beach closures.

– Dr. Ed Cake, marine biologist and expert on the oyster industry, said in his affidavit that it’s far too soon after the 2010 catastrophe to determine the full impact on the Gulf food chain – noting that severe impacts still persist from a similar accident off Mexico some 33 years ago. He adds:

Evidence continues to accrue that the blue crab, oyster, and shrimp fisheries in the central Gulf are severely depressed and that those species are not recovering to anywhere near the pre-April 2010 population levels and catches, contrary to BP claims in the news media.  These shellfish species are bottom dwellers for the most part and their life histories and spawning grounds are still impacted by BP’s dispersed and sunken oil.  The fishers that depend on these depressed and severely impacted resources will continue to suffer over the long-term, regardless of the fairness or lack of fairness of the proposed BP settlement offer.

He also notes: 

BP and its public-relations “apparatus” have continued to claim, fallaciously, that the Gulf has “recovered” from the 2010 Deepwater Horizon oil spill.  Nothing can be further from the truth, and anyone with the ability for read and observe can see through the PR façade of BP’s claims.  BP’s attempts to disperse and sink its crude oil “out of sight and out of mind” and its subsequent PR blitz was nothing more than a blatant attempt to avoid full compensations for the harm that its “gross negligence” caused the marine and estuarine resources as well as the citizens of the Gulf Coast.

–  Coastal geologist James Kirby also swore in an affidavit that his research has showed the continued presence of oil from the Deepwater Horizon spill in the Gulf, including all six samples he collected on Florida and Mississippi beaches after Tropical Storm Debby earlier this year.
 
As for the recent environmental carnage from Hurricane Isaac, he notes:

 In all cases of post-Hurricane Issac investigations of tar product found on the beaches affected by Hurricane Issac’s wave action, I found tar product that matched the physical characteristics of the tar product collected post-Tropical Storm Debbie and that tar product was positively fingerprinted as being sourced from MC252 crude oil.

Dr. Michael Robichaux, a physician and independent investigator of the medical impacts from the BP spill on the Louisiana Gulf Coast, wrote in a declaration (here and here) that the language in the $8.7 billion plan is clearly inadequate to deal with the wide array of illnesses he’s seem among people who were exposed to BP’s oil. Robichaux says the proposed deal does not contain the funding that’s needed for proper medical treatment, and that the Plaintiff’s Steering Committee never contacted him. The physician notes that he has treated more than 150 people for serious symptoms after exposed to BP’s oil. He writes of one such case:

 My exit examination on a patient yesterday resulted in her description of the chronic symptoms that characterize  many of the victims of this tragedy.  Headaches, memory loss, irritibility, extreme  fatigue,  insomnia   and  an  inability  to  concentrate   characterized   this  patients symptoms.  I’m pleased to state that she she improved in each of these areas following her treatment.  Because she  lives much  of the time  on  Grand  Isle, it will  be interesting  todetermine if she will continue to have problems on the Island in the future.

In addition, our filing spells out some significant problems with the deal:

– The proposed settlement assumes that the oil from the 2010 spill has been substantially cleaned up, but the massive new oil pollution from Hurricane Isaac, which has closed beaches along the Gulf Coast and spread tar balls and fresh oil across a wide geographical area, has proved that this is not the case. In fact, experts believe a large quality of 1 million barrels of BP oil remain in the Gulf. As the filing states: “This problem will likely recur every time there is a major storm.” That means the proposed damages need to be recalculated upward and the geographic areas covered by the plan need to be re-examined as well.

– There are major flaws in the way the settlement is constructed. Many plaintiffs are likely to opt out because there will not be enough time to learn the amount of their individual settlement, and many are not included because of arbitrary geographic boundaries. Likewise, a formula for wetlands compensation that values Louisiana wetlands over those in other states is arbitrary and unfair. (It was reported this week that only 5 percent of some 60,000 people and businesses who’ve submitted claims have received a settlement offer so far.)

– The settlement seriously underestimates the damage to Gulf seafood that was caused after the Deepwater Horizon catastrophe. The filing notes: “The millions of gallons of dispersants in seafloor and surface application on the spilling oil is already showing evidence of substantial harm to the basic levels of the marine seafood chain. Genetic damage and changes are being reported. This evidence, although preliminary and early, suggests the long-term likelihood of long-term effects to the Gulf eco-system. Accordingly, the multipliers are too small.”

– In addition, we filed papers objecting to BP’s proposed settlement of medical claims as “unfair, inadequate and unreasonable” in dealing with the serious illnesses of Gulf Coast rescue workers and residents who were exposed to BP’s spilled oil and the toxic dispersants that were deployed.

“A settlement that includes ten thousand opt-outs is a failed settlement,” our objection states. “The prospect of being one of tens of thousands of unsettled cases is in itself coercive because many of the victims simply do not have the financial capability to hold out the years or decades they will have to wait to have their case resolved through the Court.”

Because of its inherent unfairness, we are asking Judge Barbier to reject the settlement. At the minimum, we argue, he should delay approval until the full impact of Hurricane Isaac is known; if he is not inclined to immediately reject the deal, we urge that he hold off any approval until at least 50 percent of the claims are settled, or allow claimants to opt-in or opt-out up until a settlement offer is made.

In addition, because of the severity of the oil pollution stirred up by Hurricane Isaac, I have also asked the federal magistrate judge hearing the government’s claims against BP for the ability to perform discovery pertaining to these serious new issues. You can read the letter — which summarizes the flaws in the $8.7 billion package — here.

The events of the last two weeks have been sad but powerful proof that the damage caused to the Gulf and to the coastline by BP’s recklessness is almost incalculable. The federal government, in court papers filed last week, clearly agrees — citing long-term damage to the marine food chain and to dolphins and other aquatic life. This proposed settlement — like those slick BP commercials that air constantly on TV — is part of an attempt by a big highly profitable oil company to move on while shirking its responsibility to make things right along the Gulf Coast. Fairness, and justice, demands a better solution.

To read our objections to the economic portion of the BP settlement, please read: http://www.stuarthsmith.com/wp-content/uploads/2012/09/SSobjMain-Doc-Economic.pdf

To read our objections to the medical portion of the BP settlement, please check out: http://www.stuarthsmith.com/wp-content/uploads/2012/09/SSobjstatementObjs-Medical.pdf

To read the affadavit of William Sawyer, please go to: http://www.stuarthsmith.com/wp-content/uploads/2012/09/Affidavit_-_BP_Oil_Response_to_CIH_Health_and_Safety_9-07-12.docx

To read the affadavit of Dr. Edwin Cake, please check out: http://www.stuarthsmith.com/wp-content/uploads/2012/09/Ed-Cake-declaration.docx

To see the affadavit of James Kirby, please go to: http://www.stuarthsmith.com/wp-content/uploads/2012/09/KirbyStatement.doc

To read the declaration by Dr. Michael Robichaux, please read http://www.stuarthsmith.com/wp-content/uploads/2012/09/120906Robichaux1.pdf and also  http://www.stuarthsmith.com/wp-content/uploads/2012/09/120906Robichaux2.pdf

To read my Sept. 10 letter to the federal Magistrate Judge Sally Shushan seeking additional discovery in the wake of Hurricane Isaac, go to: http://www.stuarthsmith.com/wp-content/uploads/2012/09/120910_JudgeShushanLtr_BP.pdf

To read my Sept. 5 blog post about the U.S. government’s objections to the settlement, please go to: http://www.stuarthsmith.com/bombshell-feds-slam-bp-in-key-court-filing-admit-pollution-from-2010-spill-continues-to-ravage-gulf/

To see my recent post on the Louisiana objections to the deal, please go to: http://www.stuarthsmith.com/louisiana-unloads-and-blows-giant-hole-in-bp-settlement/

© Smith Stag, LLC 2012 – All Rights Reserved

5 Responses to We object: Why BP’s $8.7 billion deal is “a failed settlement”

  1. le says:

    BEING ABLE TO GET AND OFFER AND STILL OPT-OUT AND HAVE AN APPEAL AND STILL KEEP YOUR RIGHTS IS A MUST

    BECAUSE IT PUTS YOU AT THE MERCY OF BP & THEIR COHORTS … HOW REASSURING IS THAT !

    AND WHAT ABOUT PUNITIVE DAMAGES WHY ARE THEN NEVER MENTIONED … THAT’S WHERE THE MONEY IS AT AND WITH THE DOJ TALKING THE WAY THEIR TALKING .

    ALL THOSE WITH ” EAP ” HAVE AN ADMISSION OF GUILTY AND THOSE GO FAR IN A CIVIL COURT WHERE PREPONDERANCE OF EVIDENCE APPLIES .

    KEEP YOU THE FIGHT . I HOPE YOU CAN GET THROUGH .

    PUT A COALITION OF ” EAP ” TOGETHER AND USE THEM A A SPEAR HEAD FOR TRUE REST … DO SOMETHING !

  2. le says:

    THE NOT BEING ABLE TO OPT-OUT ONCE YOU OPT-IN … BY DEFINITION MAKES THIS DEAL A TRAP !

    DOES IT NOT

    IN ORDER FOR THIS NOT TO BE A TRAP .

    A WAY OUT NEEDS TO BE PUT IN PLACE SO THAT YOU CAN OPT-OUT AFTER AN OFFER HAS BEEN MADE AND A APPEAL PROCESS GO THROUGH .

    IF NOT BP COULD SAY TWO HUNDRED DOLLARS TAKE IT OR LEAVE IT , WE GOT YOUR RIGHTS NOW SO WHAT ARE YOU GOING TO DO ? … NOTHING

    PLEASE BE THE ONE TO SOUND THE ALARM THAT THIS HAS ALL THE HALLMARKS OF A LEGAL TRAP.

    THE GULF STATES NEED A LEADER AND LEADERS AS WELL AS FOLLOWERS , FEET ON THE GROUND

    RIGHT IN FRONT OF DEMOCRAT AND REPUBLICAN CAMPAIGN HEADQUARTERS !

  3. le says:

    YOU KNOW THE BIG TRICK BP AND THEIR COHORTS PULLED OF WAS GETTING EVERYONE ” ESPECIALLY THOSE WHO RECEIVED AN EAP PAYMENT ” WAS TO GET EVERYONE TRYING TO PROVE EACH NICKEL AND DIME THEY DIDN’T MAKE OR COULD HAVE MADE . AND ALL THEY HAVE TO DO IS SAY REJECTED YOU SAID YOU LOST A DIME BUT BUY OR WAY OF THANKING YOU MAY HAVE ONLY LOST A NICKEL .

    WHEN PUNITIVE DAMAGES COMBINED WITH PREPONDERANCE OF EVIDENCE AND A PRE SETTLEMENT SOUNDS BETTER AND MORE FAIR .

    BP SHOULD BE LUCKEY IF THEY PAY MOST PEOPLE 50 GRAND … AFTER TAXES AND LAWYERS

    BUT THE LAWYERS ARE GOING TO HAVE TO LAWYER UP !

  4. le says:

    ISAAC WAS EVEN A BIG STORM . WHAT HAPPENS WHEN A STRONG 3 TO 4 STORM HITS THE GULF , WHAT THEN ?

    WHERE ARE THE CRABS AND MULLET HIDING ?

    WHERE IS REPUBLICAN RADIO AT THIS IS OBAMA’S MONSTER ACCORDING TO POLITICO.COM AND OTHER SOURCES . THIS SHOULD MAKE FOR GREAT ANTI OBAMA SUPPORTERS .

  5. le says:

    But someone needs to explain what our options are if we do opt-out , what do we do then ?

    How do we go about this if we don’t do it their way ?

    What are our options ?

    What is the best way to go and how , what other options are open to us ?

    And how do we go about putting those options in to action ?

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