BP Prior Incidents Again at Issue in Oil Spill Litigation

As we previously reported in “Be Prepared for the Inevitable ‘Process Safety’ Attack,” Corporate Counsel (Jan. 23, 2014), available here, the private plaintiffs in last year’s liability trial stemming from the 2010 Gulf oil spill were permitted to introduce evidence of some of BP’s most notable prior incidents through the opinion of a renowned process safety expert, notwithstanding U.S. District Judge Carl J. Barbier’s previous ruling that evidence of these incidents would be excluded by Federal Rules of Evidence 404(b) and 403.  Notably, Judge Barbier’s Order did not exclude expert reports merely because they relied on past incidents and explained that evidence of prior incidents may be “the precise sort of information that process safety experts would rely upon, even in forming opinions about what happened at Macondo.”

Now, in the Clean Water Act penalty phase of the trial, it appears that evidence of BP’s Texas City, Prudhoe Bay, and Grangemouth incidents will again be introduced—this time by the United States, which seeks heightened CWA penalties.  Earlier this year, in a motion to exclude this evidence as not relevant to the “history of prior violations” penalty factor of the CWA, BP argued that “‘prior violations’ do not include vastly different incidents having nothing to do with Section 311 of the CWA or involving entities other than the defendant violator (BPXP).”  But on March 21, Judge Barbier denied BP’s motion “to the extent BP urges that only past violations of the CWA, 33 U.S.C. § 1321, are relevant.”  Accordingly, it appears that BP will once again face evidence of its prior incidents.

The CWA penalty phase trial is scheduled to being on Tuesday, January 20, 2015, in New Orleans, and is expected to last three weeks.