Judge Denies BP Appeal That Might|Have Killed Thousands of Claims

NEW ORLEANS (CN) - U.S. District Judge Carl Barbier denied BP's motion for interlocutory appeal of a ruling that could affect hundreds of thousands of claims for economic damages. More than 40 million pages of documents have been produced so far in the consolidated litigation, and 226 depositions have been taken.

"I have given this a lot of thought," Barbier said as he denied BP's motion. Barbier is overseeing the litigation stemming from the Deepwater Horizon oil spill catastrophe.

BP attorney Andrew Langan said BP appealed because it believed Barbier's August order on Bundle B1 was incorrect. By appealing that order, BP believed it could avoid at least some of the litigation, Langan said.

Barbier in August issued a 39-page ruling granting in part and denying in part requests made related to Bundle B1 - and ruled that claimants can sue for punitive damages.

The B1 pleading bundle includes all claims for private or "nongovernmental economic loss and property damages." It includes claims for economic damages filed by fishermen, seafood processors and distributors, recreational and commercial businesses, plant and dock workers and those who worked for BP's Vessels of Opportunity program.

In its Oct. 13 motion for interlocutory appeal, BP said, "an immediate appeal from the order may materially advance the ultimate termination of the litigation."

Langan told Judge Barbier on Friday: "We still have the GCCF [Gulf Coast Claims Facility] in place. If these claims are all eliminated from litigation, litigants will have no option but to go through the GCCF."

But Barbier recalled that during the June hearing on the B1 bundle, Langan said that BP had no intention of dismissing the whole lot of economic damage complaints, and said BP would allow the trial to go forward no matter what decision the judge made on that bundle.

Barbier indicated that granting the appeal now would be impractical, because even if it were granted, the same trial, the same witnesses and the same evidence will still be presented.

But, "This is not a typical commercial dispute," Langan told the judge. "This is a case with thousands of thousands of thousands of claimants. ... What we're seeking will resolve the claims of those thousands; what we're seeking will help them. It will materially advance the determination of thousands of claims."

Arguing against the motion for appeal, plaintiffs' attorney Elizabeth Cabraser said, "The law, like time, does not flow backwards."

Cabraser cited Supreme Court rulings on pre-emption and general maritime law, and said that when the Supreme Court ruled in 2008 on economic damages from the 1989 Exxon Valdez oil spill off the coast of Alaska, the case had been pending for 20 years.

Barbier asked Cabraser if she could respond to statements by attorneys for Alabama, who said that if states are not allowed to seek punitive damages, tens of thousands of claims will be kicked out of the litigation.

"Everything we know from the Supreme Court is there will be punitive damages no matter what," Cabraser said.

After the status conference, Cabraser told Courthouse News: "Judge Barbier's decision is the right decision. It is the practical decision. It is the fair decision and the expected decision."

Cabraser said the policy of the court is to have trial go forward to judgment and to allow appeals after judgment has been made.

"An appeal can take several years. It is not fair to either side to hold the trial up for several years," she said, adding that it would also be unfair to the public to do so.

"Judge Barbier has been doing a tremendous job of managing the case so far," Cabraser said.

Earlier in the status conference, BP attorney Don Haycraft said that parties in the oil spill litigation have produced more than 40 million pages of documents so far.

As of Friday, Haycraft said, 226 depositions had been taken.

Barbier called the report on depositions taken so far "really remarkable."

Haycraft said depositions have been scheduled into December, and discovery will enter phase two before long.

Plaintiffs' attorney Steve Herman told the court that 1,600 plaintiff-profile forms have been filled out related to BP's Vessels of Opportunity program, set up during the oil spill to hire out-of-work fishermen to clean up oil.

Of the thousands of contract complaints filed by fishermen who say they haven't been fully paid by BP, the court has selected six test plaintiffs for a pilot mediation program.

The mediation program and other issues for litigation related to the Vessels of Opportunity program will be discussed after the next status conference, which has been set for 9:30 a.m. on Nov. 18.

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