BP and Transocean want evidence of U.S. government's role introduced in oil spill litigation

Steve Korris Nov. 1, 2011, 2:00am


NEW ORLEANS – Deepwater Horizon operator BP and rig owner Transocean, trading blame for last year's oil spill, aim to drag Uncle Sam into the dispute.

On Oct. 24, they urged U.S. District Judge Carl Barbier to admit evidence about the fault of the United States at a trial starting in February.

They opposed a motion from a plaintiff steering committee to exclude the evidence.

They disagreed about each other but agreed that Barbier shouldn't allocate fault among private parties without measuring the government's fault.

"The court needs to consider all evidence relevant to what happened and why," Transocean lawyers wrote.

BP lawyers wrote that plaintiffs would block evidence that U.S. agencies approved or directed the very conduct they allege as the foundation for gross negligence.

Transocean argued it needed evidence about government's role for its defense against civil penalties of $4,300 per barrel of spilled oil.

BP argued it needed the evidence to defend against claims for punitive damages.

Both argued they needed it to pin liability on each other.

"Transocean chose to license the Deepwater Horizon in the Republic of the Marshall Islands and to avoid flagging its ship in the United States," BP lawyers wrote.

"Evidence confirming that BP's well design was subject to the comprehensive oversight of the United States government while Transocean's vessel flew a flag of convenience is surely potentially relevant, at the very least, to the comparative fault of the parties.

"The fact that BP did what the United States told it to do while other defendants failed to act within the parameters of government approved plans and directives is surely one point that a court may consider in assessing where the lion's share of fault lies."

Transocean lawyers wrote, "Evidence that the United States rubber stamped risky last minute changes in BP's temporary abandonment plans without a safety analysis required by regulations is relevant in phase one.

"Evidence that the United States delayed methods which could have controlled the well sooner is relevant in phase two.

"The United States failed to follow its own requirements when it allowed BP to deviate from regulations on the allowable height of the surface plug, thereby resulting in a severe under balancing of the well during displacement."

On Oct. 31, a plaintiff steering committee in charge of the litigation answered that BP and Transcoean misunderstood their motion.

"Plaintiffs do not, as defendants appear to suggest, ask the court to exclude all evidence for all purposes which may relate in some way to the conduct of non parties or immune parties, including the United States," they wrote.

"Since all bodies of law applicable to plaintiffs' claims apply joint and several liability, the fault of any non parties, immune parties, or insolvent parties is irrelevant to the plaintiffs' claims.

"BP argues that evidence of non party, immune party, or insolvent party fault is nonetheless relevant to determine defendants' relevant fault.

"BP is mistaken.

"Since the 'fault' of these parties cannot be apportioned, any evidence regarding their fault is certainly irrelevant and inadmissible."

On the same date, the United States declared it took no position with respect to what evidence might ultimately be admissible.

"Should the court desire it, the United States stands ready to file additional subject matter jurisdiction motions were the pending motion to be denied," wrote Michael Underhill, of the Department of Justice in San Francisco.

Barbier presides over hundreds of Deepwater Horizon suits by appointment of the U.S. Judicial Panel on Multi District Litigation.

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