United States: Claims Dismissed Against Deepwater Horizon Clean-Up Responders

Last Updated: April 6 2016
Article by Jennifer E. Michel

Case:  In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010 United States District Court for the Eastern District of Louisiana No. 2:10-md-02179; Document No. 15853 [As to Post-Explosion Clean Up Efforts – Claims Against Clean-Up Responder Defendants, filed February 16, 2016]

Though the primary claims of the Deepwater Horizon matter have been resolved, various classes of claims and associated legal issues remain, adding to the arsenal of law developed as a result of this catastrophe. In this decision by Judge Carl J. Barbier, all but 11 of the remaining claims of Plaintiffs who sought recompense for alleged injuries stemming from exposure to chemicals used in the clean up of the spill were dismissed. Response activities, which spanned many months, included skimming oil from the surface of the water, applying dispersants, controlled burning of oil, placing containment and absorbent booms, onshore and beach clean up and decontaminating vessels and equipment used in these endeavors. The claims at issue here included: " (1) boat captains and crew involved in the Vessels of Opportunity ("VoO") Program ("VoO Plaintiffs"); (2) workers involved in decontaminating vessels; (3) other vessel captains and crew who were not involved in the VoO program; (4) clean-up workers and beach personnel who were involved in the onshore clean-up activities; and (5) residents 'who live and work in close proximity to coastal waters or who otherwise allege that they were exposed to oil and/or dispersants (e.g., while on vacation)'." Claims against the various companies engaged in these activities, Clean-Up Responder Defendants, included that they failed to use reasonably safe dispersant and other chemicals in their attempts to respond to the Oil Spill resulting in injury to Plaintiffs, ignored worker safety concerns, and failed to supply workers with appropriate equipment such as respirators.

In an earlier decision, Judge Barbier had considered the affirmative defense that the various defendants were entitled to derivative immunity under the Clean Water Act, discretionary immunity under the Federal Tort Claims Act and that the claims were preempted as a matter of law. In his October 4, 2011 opinion, Judge Barbier held to the extent the Clean-Up Responder Defendants were acting as directed by the federal government in using dispersants, they would indeed be entitled to derivative governmental immunity. Judge Barbier also found the defense of preemption to be plausible. All state law claims were determined preempted by maritime law and dismissed, leaving only negligence and gross negligence claims under maritime law.

It should also be noted that on January 11, 2013, Judge Barbier approved the Medical Benefits Class Action Settlement which resolved claims of clean-up workers and residents of certain geographical areas related to their exposure to oil and/or dispersants. This settlement became effective on February 12, 2014. Members of this group were given the opportunity to opt out of the settlement and only those opt-out Plaintiffs were allowed to proceed with exposure claims against the Clean-Up Responder Defendants.

The Clean-Up Responder Defendants filed Motions for Summary Judgment on the derivative immunity and preemption defenses after the period for discovery ended. The Plaintiffs' Steering Committee opposed the Motions. In Reply, the Clean-Up Responder Defendants argued the affidavits and declarations filed by Plaintiffs failed to raise a genuine issue of material fact and that Plaintiffs had ample time to conduct discovery. Judge Barbier agreed the PSC's affidavits and declarations contained only vague and generalized statements insufficient to defeat the Motions. Nevertheless, Judge Barbier acknowledged some Plaintiffs may have evidence some Clean-Up Responder Defendants acted beyond or outside the authority conferred by the federal government. He directed the parties to establish a procedure, similar to a Lone Pine order, to require Plaintiffs to provide specific support for their claims. The Court noted the "basic purpose of a Lone Pine order is to identify and cull potentially meritless claims and streamline litigation in complex cases." In re Vioxx Products Liability Litigation, 557 F. Supp. 2d 741, 743 (E.D. La. 2008) (quoting Baker v. Chevron USA, Inc., No. 1:05-CV-227, 2007 WL 315346, at *1 (S.D. Ohio. Jan. 30, 2007)). The authority of a multidistrict litigation court to manage complex litigation through pretrial orders, even to dismiss claims for Plaintiffs' failure to prosecute their claims through compliance with such orders was reiterated. The Plaintiffs' responses were received and after their consideration, Judge Barbier ruled.

The origin of the doctrine of derivative immunity was noted as the United States Supreme Court decision in Yearsley v. W.A. Ross Constr., 309 U.S. 18 (1940), wherein the Court held private entities are entitled to immunity when the federal government validly conferred its authority to private parties who acted pursuant to that authority and did not exceed it. Here, the Clean Water Act allowed the President via the Federal On-Scene Coordinator "FOSC" to direct all oil spill response efforts. As it was found this was a valid conferral of authority, and the Clean-Up Responder Defendants had presented sufficient evidence they did not exceed or disobey the conferred authority, unless the Plaintiffs came forward with specific evidence to the contrary, the Clean-Up Responder Defendants would be entitled to derivative immunity.

Judge Barbier likewise noted unless such proof was forthcoming, the Clean-Up Responder Defendants would also be entitled to discretionary immunity under the Federal Tort Claims Act, stating concerning the decision to use dispersants and the type and manner of their use, "[t]hese are precisely the types of governmental decisions that are afforded discretionary function immunity and shielded from 'second-guessing' via an action in tort."

Considering preemption, Judge Barbier noted that in addition to preemption of state law claims, "positive federal law [the CWA, OPA, and the NCP "National Contingency Plan"] also may displace judicially-created federal maritime law, i.e. general maritime law." In holding that was the case here, the Court held, "permitting the B3 claims to proceed against the Clean-Up Responder Defendants could cause private responders to think twice before participating in other clean-up efforts. It is precisely this second-guessing of the government's decisions that would 'stand as an obstacle' to federal law."

Most of the Plaintiffs did not submit a Questionnaire as required to establish the specific information they had opposing the Clean-Up Responder Defendants Motions. Finding this indicated they had no evidence which would raise a genuine issue of material fact to contest the Motions, all claims of Plaintiffs who had not timely submitted Questionnaires were dismissed with prejudice. It was then noted that 38 of the forms were submitted were by Plaintiffs who had not opted out of the Medical Benefits Settlement and had already released their claims. Their claims were noted to be barred and were dismissed with prejudice. 5 Questionnaires were not submitted timely. 16 submitted forms which were entirely blank. 36 Questionnaires were only partially completed. The Court dismissed all their claims, with prejudice. After considering them all and finding only 11 Plaintiffs completely filled out the Questionnaires, Judge Barbier reserved judgment on those remaining 11 claims, which remain pending.

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