BP case starts to take shapeT. J. Aulds
Galveston Daily News
January 23, 2011
About 20 attorneys crowded a Galveston County courtroom to set rules for a lawsuit filed against BP for a 40-day emissions event last year. The case might be more than a year away from starting, but already the outlines of the arguments to be made by plaintiffs and BP are clear.
Between April 6 and May 16, more than 530,000 pounds of chemicals were released through flares at BP’s Texas City refinery after a subunit on the refinery’s ultracracker shut down. The company did not report on the extent of the release until June.
Since then, the Texas Attorney General launched an investigation after the Texas Commission on Environmental Quality found the emissions event to be “excessive.” The Environmental Protection Agency is conducting its own investigation, and as many as 30,000 Galveston County residents have signed on to sue the company claiming ill effects from the release that included 17,000 pounds of benzene, 40 times the state reportable levels of the known carcinogen.
Those 30,000 are a long way away from getting their day in court, though. And when — and if — there is a trial, it will actually feature about 10 people, initially, lead plaintiff’s attorney Tony Buzbee said.
Any ruling or settlement in that case would serve as the standard for the remaining cases.
Buzbee, a Friendswood resident, was the first to seek action against BP for the emissions event. He initially filed a $10 billion federal lawsuit against the company but dropped that in favor of the state court case. Buzbee recently filed another $10 billion lawsuit against BP in federal court accusing the company of reckless disregard of the environment.
“BP is the undisputed worst polluter in (Galveston) County,” Buzbee said during a hearing Friday, pointing to state emissions reports. “Seventy-nine percent of this county’s emissions comes from BP.”
Last week, Buzbee was named by Galveston County District Court Judge Lonnie Cox as the head of an attorneys’ steering committee that will lead the efforts in the state court legal action against BP. One of the other members of that committee is James Nebout, of the Texas City-based Burwell and Nebout law firm, which often works with the United Stealworkers union that represents the bulk of the workers at BP.
That committee represents more than 30 attorney’s who have clients who want to sue BP over the emissions event.
Familiar Faces For The Defense
BP has working as its lead defense team a trio of attorneys who represented the company in the hundreds of lawsuits filed after a fatal blast at the Texas City refinery in 2005.
That “dream team” of corporate defense attorneys includes James Galbraith, the head of the Galveston office of McLeod, Alexander, Powel and Apffell; Kenneth Tekell Sr., one of the founders of Tekell, Book, Allen and Morris, recognized as one of the top corporate defense firms in the state; and Otway Denny, a partner with Fulbright and Jaworski and specializes in defending petrochemical industries.
The three laid out, during a management hearing Friday, plans to seek out surveys of clients and some proof before trial that the release from BP caused any direct harm to those seeking to sue the company.
“Science is telling us no one should be adversely affected,” Galbraith.
BP’s team also is seeking to force the plaintiff’s attorney to produce an expert who would make a direct tie between the emissions event and health issues or injuries as a result of the emissions event.
Rules For The Trial
Buzbee countered Galbraith’s argument stating that state reports and internal documents show not even BP might know how much or what chemicals were released during the emissions event, despite the company’s report to the TCEQ last year.
He claimed the city’s air monitoring network was inefficient to accurately measure what and how much was released in the 40 days.
Galbraith shot back that the state environmental agency’s own “conservative” estimations show no harmful amount of chemicals landed on the community during the event.
Those issues and how to go about the discovery process, including depositions of BP officials and plaintiffs, were a part of Friday’s hearing. The demands for medical affidavits from doctors to directly link illnesses to the emissions event before trial was a major sticking point as was the request for a long information sheet to be filled out by each plaintiff.
New Way For Case Records
While Cox did not rule on how to proceed on the pretrial motions and actions, he already had ordered a first for Galveston County — electronic filing of case-related records.
Jason Murray, the county’s new district clerk, said Cox’s decision to require all documents in the case be filed electronically will streamline the process, save money on employee-related costs in his office and freeing up his staff to manage the paperwork for other cases.
The county’s data system has for some time had the capability of transferring the electronic copies of legal documents and filing them.
Under Cox’s order, all legal documents must come on a disc, then be filed into the district clerk’s system. That replaces the boxes of case-related documents that would be filed, copied and hauled into storage for the case.
Everything now will be accessible electronically and, often times, online, Murray said.
“This is huge,” Murray said. “This is a really big deal and will make a huge difference in how the paperwork for this case and hopefully future cases will be handled.”