BP Shaky History Excluded in Oil Spill Trial


     NEW ORLEANS (CN) – BP will not have to face its record of past felony charges and safety violations in the first phase of an upcoming trial over the Deepwater Horizon explosion, a federal judge ruled.



     The phase is already expected to last three months, and inclusion of this evidence poses “a real danger of creating ‘a trial within a trial,'” U.S. District Judge Carl Barbier said Thursday.
     “The court is greatly concerned about considerations of ‘undue delay, waste of time, and presentation of cumulative evidence,'” he wrote.
     BP may still have to face this evidence at subsequent phases of the trial.
     “The contested exhibits at issue all share one of two common characteristics: (1) they pertain to a prior incident of some sort of disaster or accident in which BP was involved, and/ or (2) they pertain to a prior civil, criminal, or regulatory proceeding in which BP was involved,” the seven-page order states.
     Barbier’s order relates to two motions. The exhibits from the first motion identify three incidents involving BP facilities at which “process safety arguably failed.”
     The first incident is the 2005 Texas City explosion that injured 80 and killed 15 others. BP pleaded guilty in this case to felony violations to the Clean Air Act and was fined $50 million.
     Second is the 2000 Grangemouth, Scotland, petrochemical facility incident. And third is the 2006 rupture of a corroded pipeline at Prudhoe Bay, Alaska, that released more than 200,000 gallons of oil and. BP pleaded guilty to criminal Clean Water Act violations, and was fined $20 million, or $4,200 per barrel, for Prudhoe Bay.
     The maximum Clean Water Act fine for an oil spill resulting from gross negligence is $4,300.
     Fines and penalties BP faced because of the three and other prior incidents constitute the second motion. “For example, there are exhibits including negotiated settlements between BP and the government based on allegations of improper trading activity and instances of alleged improper disposal of hazardous materials,” Barbier wrote.
     But federal rules require exclusion of evidence of prior conduct that is not sufficiently similar to the Deepwater Horizon incident.
     Other bases for exclusion – unfair prejudice, confusion of the issues or misleading the jury – are not valid concerns in the context of a non-jury trial, Barbier noted.
     The evidence could be useful later in the trial, he added.
     “It may be that some of this evidence will become more relevant and admissible at a later phase, e.g., if and when the court is required to consider the quantum of punitive damages or the assessment of CWA penalties,” Barbier wrote, abbreviating the Clean Water Act. “However, in determining what caused the April 20, 2010 blowout, any potential probative value of such evidence is substantially outweighed by concerns of undue delay and waste of time.”
     This ruling does not affect evidence related to whether BP had an adequate process safety system in place on the Deepwater Horizon at the time of the blowout.
     Further, expert reports are not necessarily excluded simply because they rely upon prior incident process safety evidence.
     “Arguably, evidence of prior incidents would be the precise sort of information that process safety experts would rely upon, even in forming opinions about what happened at Macondo,” the order states.
     The April 20, 2010, explosion of the Deepwater Horizon killed 11 and set off the worst environmental disaster in U.S. history.
     The trial has been broken into three phases. Phase I, which relates to the explosion and sinking of the Deepwater Horizon, begins Feb. 27.

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