Case management order finalized, possible dates set for test trials in BP MDL

Alejandro de los Rios Oct. 16, 2010, 2:41am

U.S. District Judge Carl Barbier Barbier rejected a case management order (CMO) proposed by BP's defense counsel because he said that it puts cases on a timeline to start in 2013 or 2014.

"That's not feasible for the parties and the public," Barbier said on Friday at the second status conference in the BP multi-district litigation (MDL) at the U.S. Federal Court Eastern District of Louisiana in New Orleans.

The conference followed up on the initial hearing which ended with both parties instructed to provide drafts of CMOs for Barbier to consider before the Oct. 15 hearing.

Defense counsel strongly objected to having any test trials done before they said they could complete discovery. Defense also expressed concern that if a damages trial and liability trial happen at the same time, issues may arise in each that would affect the other.

Barbier also said he expects test trials and bellwether cases to begin as soon as June 2011. In those cases, BP will be the only responsible party and the cases will not deal with liability.

Barbier said that after re-reading the Oil Pollution Act (OPA), he realized that provisions in OPA are in place to protect defendants from paying too much in claims. BP was concerned that it would pay too much in liability under OPA if damages are not set, but Barbier said there are statutes that will allow BP to seek contributions and indemnity if other parties are later found to be at greater fault.

He also finalized the set up of plaintiff pleading bundles. The court approved an unprecedented move of grouping similar cases together along with developing a master complaint, which would include all causes of action in order to expedite the trial process.

During the second status conference, Barbier finalized the amount of pleadings bundles that would be formed in the MDL, including personal injury and wrongful death, OPA claims, non-OPA related economic claims and one bundle specifically for the class action brought against the first responders which helped tackled the fire that erupted after the Deepwater Horizon oil rig blew up on April 20.

During the course of the hearing, Barbier granted a plaintiff motion for leave to serve omnibus discovery to all defendants and denied a plaintiff motion in regard to discovery pertaining to records from the Gulf Coast Claims Facility.

Plaintiff counsel asked Barbier to at least instruct Ken Feinberg, who was appointed to head the process of giving out BP-related claims, to preserve all the records of payment for the future in case punitive damages becomes an issue.

"I'm pretty confident Mr. Feinberg will not be out there intentionally destroying records," Barbier said, before assuring plaintiffs he would remind Feinberg to preserve all records.

A deadline for all third-party and cross-claims to be filed was set for February 15, 2011. The next hearing in this MDL will occur on Friday, Nov. 19 at 9 a.m.

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