Louisiana Record

Saturday, March 28, 2020

Barbier: BP cleanup contractors are immune only if directed by government

By Steve Korris | Oct 4, 2011


NEW ORLEANS – BP contractors who cleaned up after the Deepwater Horizon explosion can't share the government's immunity from personal injury suits unless they prove they took direction from the government and not from BP, U.S. District Judge Carl Barbier ruled on Sept. 30.

He denied motions of contractors to dismiss claims that Corexit, a product they used to disperse oil, injured cleanup workers and Gulf Coast residents.

Plaintiffs claim they suffered headaches, nausea, vomiting, respiratory problems, rashes, lesions, chemical burns and other effects.

Barbier wrote that their master complaint alleges BP took control and directed all aspects of recovery and relief efforts.

He wrote that it alleges the Environmental Protection Agency directed BP to use a different dispersant and BP notified EPA that it would continue using Corexit.

"Accepting the allegations as true and drawing all reasonable inferences in the plaintiffs' favor, the defendants did not receive government approval to use Corexit," he wrote.

"Rather, the allegations lead to the inference that BP was in control of response actions," he wrote.

He wrote that "what role the government, BP, and cleanup defendants played during the intense weeks following April 20, 2010, is an issue subject to reasonable dispute."

He quoted a Fifth Circuit precedent that, "When the government merely accepts, without any substantive review or evaluation, decisions made by a government contractor, then the contractor, not the government, is exercising discretion."

He wrote that defendants could reassert a derivative immunity defense later, and he rejected an argument from plaintiffs that only government contractors are entitled to the defense.

"The purpose of derivative immunity is protecting a federal interest, not the contractor," he wrote.

He wrote that the Clean Water Act brings together functions of the federal government, state government, and a responsible party to achieve an effective and efficient response.

He wrote, "This unique federal interest would be directly affected if private parties, which the Clean Water Act anticipates will be involved in response actions, refused to follow a federal directive for fear of liability."

Cleanup defendants include Marine Spill Response Corporation, Airborne Support Inc., Lynden Air Cargo, Dynamic Aviation Group, International Air Reponse, Lane Aviation, National Response Corporation, O'Brien Response Management, The Modern Group, and DRC Emergency Services.

Barbier presides over Deepwater Horizon damage claims from federal courts around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

The national Oil Pollution Act of 1990 applies to many claims before him, but he manages personal injury cases separately because the Act provides no cause of action for personal injury.

Although he didn't dismiss all personal injury claims on grounds of immunity, he dismissed many of them on specific grounds.

He rejected all injury claims under state law, ruling he would apply only maritime law.

He had imposed the same rule on claims of economic loss in June.

He dismissed injury claims against rig investors Anadarko and Mitsui Oil Exploration.

He dismissed claims of nuisance and battery.

He dismissed claims of seamen under the Jones Act for punitive damages, though he permitted punitive damage claims from others under the Act.

He denied declaratory relief that would have invalidated any settlements that release punitive damages or affect their calculation without judicial review.

He declined to order medical monitoring under Florida law that doesn't require a showing of injury, writing that all other Gulf States require such a showing.

On the other hand, he wrote that all plaintiffs alleging an injury under maritime law may seek medical monitoring as an element of their damages.

"As to those plaintiffs that have alleged an injury, the court further finds that the complaint sufficiently alleges facts to state a claim of negligence, and gross negligence," he wrote.

He wrote that it states a plausible product liability claim against Corexit manufacturer Nalco.

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Organizations in this Story

NalcoU.S. Environmental Protection Agency (EPA)