Originally posted by John Schwartz - NY Times - June 10, 2010
“Oil spill damages? You May Be Entitled to Compensation,” reads a billboard in LaFourche Parish, Louisiana.
It is just one of the tactics lawyers are using to sign up clients to sue BP, along with running advertisements on Gulf Coast television stations, buying Internet addresses like GulfOilSpillLawFirm.com, and holding informational seminars — with free food and drinks — for those who feel the oil company owes them something.
Lawyers across the nation have filed nearly 200 lawsuits so far related to the April 20 oil disaster, including death and injury claims for those aboard the rig, claims of damage and economic loss for people whose livelihoods are threatened by the slick, and shareholder suits over BP’s plunging stock. Cases have even been filed on behalf of the oil-coated fish and birds. Lawyers also plan to file a civil racketeering action alleging a corporate conspiracy with the Bush administration.
At a seminar on Tuesday evening at the Emerald Grande hotel in Destin, Fla., 150 residents and business owners heard a presentation by two lawyers, Robert J. McKee of Fort Lauderdale, Fla., and Stuart H. Smith of New Orleans, about dealing with the BP claims process.
Mr. Smith, who had flown his private plane from his home in New Orleans for the event, called the continuing gusher under the gulf “a disaster on the installment plan.”
They introduced a team of experts they have assembled to fight BP in court, including accountants, an oceanographer, chemist and toxicologist, and explained to the audience how to gather records to improve their chances.
Mr. McKee’s advice to the group — and it was just advice, because he had to stay on the proper side of the ethical line that bars solicitation of clients — was blunt. Should they decide to sue, he said, “You find someone competent who can kick their butt and take what is owed to you for full, fair and honest compensation.”
Because thousands of plaintiffs’ lawyers from across the country are trying to join in the kicking, consolidation of the federal suits is almost certain. The decision will be made, oddly enough, some 2,000 miles away from the Gulf Coast, by a panel of judges meeting on July 29 in Boise, Idaho, to manage what is known as multidistrict litigation.
The panels will almost certainly give the oil cases to a single judge or a small number of judges, who will then sort them into groups and combine tasks, like the discovery process to ferret out underlying facts for all the cases.
Finding a judge without a potential conflict of interest in the sprawling case could be a challenge: half of the active judges in the federal judicial district in which New Orleans sits have already recused themselves.
The judges in Idaho may send the cases to New Orleans (where more of the plaintiffs and the damage can be found), to Houston (as the defendants wish, perhaps because of the city’s ties to the oil industry) or to more neutral ground. Wherever it ends up, Louisiana’s feisty lawyers are likely to play a big role in the litigation.
Seasoned Texas litigators like Brent W. Coon, who fought BP over the 2005 plant explosion in Texas City, are likely to be deeply involved, as will experts in mass tort litigation from around the country who have taken part in enormously complex suits involving tobacco, pharmaceuticals, accelerating Toyotas and defective Chinese drywall.
The plaintiffs’ lawyers are eager to fight the oil giant, just as soon as they get past fighting one another.
They are still involved in the scrum at the beginning of most multidistrict litigation, trying to get the largest number of clients and earliest filings in hopes of winning influence in steering the consolidated litigation.
Mass tort litigators and the specialists do not think highly of each other. Mr. Smith, an environmental litigator in New Orleans who has sued oil companies for much of his career, scoffs at the generalist approach to mass tort lawyering. “If you need brain surgery, you don’t go to an orthopedic surgeon,” he said.
The mass tort litigators do not pretend to be experts in every field of law required in every case. Asked whether he had experience in the arcane maritime law involved in the spill, Stephen A. Sheller, a mass tort specialist from Philadelphia, said, “I go on a cruise boat occasionally.”
But the mass tort lawyers argue that their experience in prior multidistrict cases is essential to building the ad hoc law firm that will take on the large defense firms that the corporations retain.
“That’s the David-and-Goliath dynamic,” said Richard J. Arsenault, a lawyer in Alexandria, La., who represents plaintiffs in many BP cases.
The question that is likely to dominate much of the litigation, wherever it lands, is the extent of liability for BP and the companies it worked with.
The most straightforward cases are those involving direct impact — compensation to the families of the dead and wounded on the rig, and the effect of the spill on people like commercial boat operators, fishermen and others whose livelihood could be destroyed, and landowners whose property is fouled.
Beyond those cases, there are shades of gray, including for businesses that have not been touched by oil, but still feel its impact.
The Oil Pollution Act, which governs many of the damage issues, does not spell out how far such liability extends, said Val P. Exnicios, a New Orleans lawyer.
The commercial fishing boat is an easy call, Mr. Exnicios said, but what about the stand next to the dock that sells snowballs, the shaved-ice treat that the fishermen might buy after a hot day on the water? What about the company that sells the ice to the snowball stand?
“This case will ultimately determine where the courts are going to draw the line,” he said.
Stephen J. Herman, who is serving as a liaison between plaintiffs’ lawyers and a New Orleans judge who has many of the cases, said he expected BP to fight continuing claims of indirect damage though they might pay initially.
“In the short term they might, for PR purposes,” he said. “But in the long run they won’t, because it would bankrupt them.”
The lawyers are plotting a range of strategies.
Mr. Smith hopes to circumvent some of the restrictions on the claims process under the Oil Pollution Act for some clients by arguing that the act does not come into play at all. His point: the pollution is not coming from a vessel or rig, as the law requires. The rig, he notes, is long gone, and what is left is a hole in the ground spewing oil.
The pollution should fall under the nuisance claims in Louisiana civil law and other states’ common law, just as a neighbor’s toxic dump or feedlot might. That might provide recovery, he said, for people whose land will never get oil on it, but who will claim the smell interferes with the quiet enjoyment of their property.
Mike Papantonio, a Florida lawyer, has many cases involving fishermen and shrimpers, but he is also filing civil racketeering claims intending to tie the BP blowout to what he sees as close collaboration between the industry and Bush administration officials.
“It’s a case that helps us reflect on where we are after eight years,” Mr. Papantonio said. The relaxation of regulatory oversight “disconnected the hydraulic line from your brakes,” he said.
The lawyers, meanwhile, know that they are often viewed as predators who sue for their own profit. A person commented on the Web site of The Times-Picayune of New Orleans about an article on the lawyers’ conference saying, “The vultures are circling, hopefully some of them will get soaked in the oil.”
Lisa A. Rickard, the president of the U.S. Chamber Institute for Legal Reform, said compensation efforts should reward victims, but litigation drags on for decades and “the end result has too often left at least some victims at the back of the line.”
Such talk riles the plaintiffs’ lawyers.
“Why do I need more money?” asked Daniel E. Becnel Jr., who has worked on mass tort cases leading to billions of dollars in settlements from tobacco companies, breast implant makers and others.
Mr. Becnel raised his shirt to show a long scar on his left side, the mark of difficult surgery to give a kidney to his brother, which left him with lasting health problems. He has also survived grueling treatment for leukemia.
“I’m living on borrowed time,” he said. “I should have been dead 10 years ago.”
With these cases, he insisted, “I want to do right.”
Calvin Fayard Jr., a New Orleans lawyer, said the damage to the gulf and the way of life there was “heartbreaking and gut-wrenching for me, being born and raised in Louisiana.”