Fight Begins Over Venue for Deepwater Horizon Litigation


NEW ORLEANS (CN) – With more oil gushing into the Gulf of Mexico every week than spilled from the ExxonValdez, according to new estimates, lawyers across the Gulf Coast are gearing up for what may be the biggest environmental and maritime litigation the nation has ever seen. BP wants all the cases consolidated and heard in Houston – a suggestion that local attorneys call unconscionable.

And news came Monday that the oil may already be in the Loop Current, which would take it around Florida into the Atlantic Ocean, and, possibly, up the Eastern Seaboard.

The fight over venue begins four weeks after the April 20 explosion of the Deepwater Horizon oil rig killed 11 worked and injured 17.  The Deepwater Horizon catastrophe is the worst oil spill in U.S. history.
At the rate the oil is flowing – and with the possibility that it could continue for years, until the well bleeds dry – the effects will likely resemble the environmental impacts of the world’s worst spill, a technologist told National Geographic.

Miles Hayes, co-founder of the science and technology consulting firm Research Planning, told the magazine that the worst oil spill in history came in Saudi Arabia in 1991, during the Gulf War, when the Iraqi military intentionally spilled some 336 million gallons of oil (about 1.3 billion liters) into the Persian Gulf.

In the first few hours of the Deepwater Horizon fire, attorneys formed a litigation group and rushed by chartered airplanes to photograph the sinking ship. Since then, they’ve called for oil and water sampling and have gathered plaintiffs for class actions.

Defense firms have brushed up on oil and gas contacts and made themselves available as local counsel for the many corporations involved in the sinking of the oil rig.

The Times-Picayune reported that the Deepwater Horizon fiasco has the potential of being a more complex legal situation than either the 2005 Hurricane Katrina litigation or the Exxon Valdez oil spill of 1989.
Several corporations have legal exposure, thousands of potential plaintiffs face varying levels of harm, and the incident occurred in an area far more populated and economically active than Alaska.

Although multidistrict litigation has not been established for BP in Houston, BP has sought the transfer of 70 cases to a multidistrict litigation proceeding in Texas. Once a multidistrict litigation has been established, federal courts will routinely transfer new cases to it.

BP said Houston is a good choice for the litigation since Houston is a global headquarters of the oil industry and the courts have experience handling consolidated cases such as Enron.

Local attorneys say that though it would be an inconvenience for the defendants to move their files and themselves to New Orleans for the litigation, their inconvenience cannot compare with the inconvenience and expense of going to Houston for thousands of New Orleans plaintiffs, most of whom are commercial fishermen and are unemployed because of the oil spill.

“I think it would be a travesty of justice to transfer the cases into their back yard since that particular area has been unaffected,” Stuart Smith, a New Orleans attorney who filed suit on behalf of the United Fisherman’s Association, told the Times-Picayune.

Federal judges in New Orleans have plenty of experience with massive consolidated litigation. In recent years the Vioxx pharmaceutical case, the Katrina levee breach, Murphy Oil spill cases, and most recently the Chinese drywall product liability cases were all consolidated litigation.
But U.S. District Judge Eldon Fallon, who helped arrange a settlement of the Vioxx liability cases, is tied up with Chinese drywall claims, and several other New Orleans judges have already recused themselves from the oil spill lawsuits, citing conflicts of interest.

According to the Times-Picayune, a decision on whether to consolidate the cases, and if so whether to consolidate them in New Orleans or in Houston, probably won’t be made until after July 29, when a panel of federal judges meets in Boise, Idaho.

Meanwhile, the massive oil slick showed signs Monday of brushing against the Loop Current, a swift oceanic tide that could take it to the Southeast Florida Coast, and from there possibly all the way up the Eastern Seaboard.
The Coast Guard and scientists who saw the slick firsthand gave conflicting reports, but all agreed the spill and powerful current have drawn closer together.

“We feel like it has entered the Loop Current,” said William Hogarth, Dean of University of South Florida’s College of Marine Science, according to Florida’s Sun Sentinel.The Coast Guard disagreed.

“We know the oil has not entered the Loop Current,” Coast Guard Rear Adm. Mary Landry said at a press conference Monday in Robert, La. “A leading edge sheen is getting close to it, but it has not entered the Loop Current. The larger volume of oil is several miles from the Loop Current.”

Speaking on WWL radio this morning (Tuesday), Dr. Ralph Portier, professor of environmental sciences at the School of the Coast & Environment at Louisiana State University, hesitated to say much about the impact the oil might have if it were to enter the Loop Current. “Now, some people probably will argue – and I don’t really know how they could argue this but they will – it’s a very Soviet idea,” Portier said. “When Chernobyl blew its top, the Soviet idea was: let’s spread this out, let’s let everyone eat a little of the contaminated food.” In other words, everyone shared in the contamination the burden would somehow be ameliorated. But Portier said he disagrees with the idea of sharing this burden.

Portier said the Gulf is a relatively small part of the ocean and it would be best to stop the leaking well immediately and keep all the oil spilled in one general area for cleanup.
But how many millions of gallons of oil are spilling and when it will stop is anyone’s guess. It’s hard enough to keep up with the shape and direction of the spill from one day to the next

“We have this sad thing of the science not being able to keep up with the reality,” Portier said. “And again, oil is adding to it – every minute of every hour.”

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Stuart H. Smith is an attorney based in New Orleans fighting major oil companies and other polluters.
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