Subsequent Remedial Measures Excluded From Evidence Following Well Control Event
Following an oil and gas well blowout in Louisiana on November 18, 2009, the well operator changed its official barrier policy and circulated a new policy throughout its operations team. On December 11, 2009, the company then conducted a safety stand down meeting that included a PowerPoint presentation as a result of the well blowout discussing operational changes and steps that should be taken to improve worker safety during future operations. In the litigation that ensued, the operator argued that the new barrier policy and evidence of the safety stand down meeting and accompanying PowerPoint presentation should be excluded based on Rule 407 of the Federal Rules of Evidence’s treatment of subsequent remedial measures.
The parties agreed that the evidence constituted subsequent remedial measures, but the parties seeking admissibility argued that it fell within Rule 407’s exception, which allows a court to admit this evidence “for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures. Specifically, the parties seeking admissibility argued that the evidence in the case regarding the operator’s operational changes was admissible to show control and/or causation.
The U.S. District Court for the Western District of Louisiana concluded that the evidence was not admissible. The well operator had already stipulated that it was the operator of the well and maintained ultimate control and authority over the well operations, thus rendering “control” not in dispute. With respect to causation, the court explained that in the Fifth Circuit, “subsequent remedial measures can be introduced on the issue of causation if that is in controversy,” but when the evidence is offered as rebuttal to claims of non-negligence, such arguments are “semantic manipulation[s]” and should be rejected. The court reasoned that to allow the evidence of operational changes in this case into evidence would allow the exceptions to Rule 407 to swallow the express purpose of the rule given that the evidence was being offered to rebut the operator’s theory regarding the cause of the well event.
The court added that aside from Rule 407, the evidence was also inadmissible under Rule 403’s balancing test. The proponents of the evidence could still get into evidence concerning a double barrier of well control theory, including evidence of the operator’s use of multiple barriers before the well control event.
For those interested, the specific language of the new policy memorandum that the court excluded under Rule 407 and Rule 403 was as follows: “The purpose of this memorandum is to establish clear requirements with respect to barrier philosophy and to construct a list of wells requiring immediate action. The goal of this document is to establish appropriate operational guidelines to further limit the chance of well control incidents. The [new] barrier guidelines will require two barriers where a SICP greater than 6,000 psi is anticipated.”
