Plaintiff's Score Another Win in Gulf Oil Spill Litigation

Posted on behalf of Goldberg Finnegan, LLC on Aug 27, 2011 in Environmental Law

Just yesterday Judge Barbier, the Federal Judge overseeing the Gulf Oil Spill Litigation MDL, denied most of the Defendants motion to dismiss. The order applies to all private party plaintiffs (not to governments) who are claiming economic losses because of the spill. I believe that this will be seen as a victory for the plaintiffs in this litigation.

First of all it is important to understand that a Motion to Dismiss tests the legal sufficiency of the Lawsuit. The Court will accept all factual allegations made in the Complaint as true and must also draw all reasonable inferences in the plaintiff's favor at the Motion to Dismiss stage.

For More information about the Gulf Oil Spill Case contact attorney Kevin I. Goldberg at (888) 213-8140. Mr. Goldberg is representing claimants in conjunction with the law firm of Finckbeiner & Robin in Louisiana.

First the Judge Ruled that Maritime Law applies to this case because the explosion and oil leak occurred in the outer continental shelf on the high seas. The Court ruled that the Deep Water Horizon and the Blow Out Preventer extending to the ocean floor was, in its entirety, a "Vessel" It should be noted that the only Defendant that argued it was not a "vessel" was Cameron. The Court simply did not buy into Cameron's argument.

The only portion of the opinion that went against the plaintiffs is the fact that plaintiffs' state law claims for negligence, trespass and fraudulent concealment were dismissed (see p.8 of the opinion). The Court ruled that since maritime law applied, state law claims were preempted. The plaintiffs argued that the state law claims could supplement maritime law claims. Simply stated, the Court rejected the plaintiff's argument.

The Defendants including BP, Transocean, Haliburton and others asked the Court to dismiss all of the plaintiff's non-Oil Pollution Act Maritime law claims. The Court basically took a middle of the road approach and applied a well-known and broadly applied rule known as Robins Dry Dock from a 1927 U.S. Supreme Court Case and dismissed all general maritime law claims except for those alleging a physical injury to property/proprietary interest. The Robins Dry Dock Rule basically says that you cannot claim damages for purely economic losses unless you allege a physical injury to your property or proprietary interest (There is an exception for commercial fishermen that applies to the BP Litigation). The claims of Commercial Fishermen were not dismissed because Commercial Fishermen have always been an exception to the Robins Dry Dock Rule


General Maritime Law Claims against BP (The "Responsible Party Under the Oil Pollution Act) were dismissed however. The Court said, "General Maritime Law Claims that existed before OPA may be brought directly against non-Responsible parties." (p.26).

Judge Barbier also specifically recognized that punitive damages under general maritime law will be permitted. This is another huge victory to the plaintiffs and will likely be a huge concern to the defendants who now have more exposure than they would have had if punitive damages were not permitted. This is especially true because many insurance policies exclude punitive damages and these verdicts will have to be paid out of corporate bank accounts directly. The Court said "OPA does not displace general maritime law claims for those plaintiffs who would have been able to bring such claims prior to OPA's enactment." Claims for Punitive Damages, the Court went on to explain, can be made against responsible parties under OPA and non-responsible parties.

As expected the Court ruled that plaintiffs must make "Presentment" under the oil pollution act, but the Court did not dismiss those claims that had not yet made presentment. the Court explained "The Court finds that Plaintiffs have sufficiently alleged presentment in their B1 Master Complaint, at least with respect to some Claimants." The Court chose not to engage in the process of sorting through thousands of individual claims to determine who has properly made presentment and who has not at this time. (Stay tuned though--this will be a significant issue down the road).

Another area considered a big win for the plaintiffs is that the Oil Pollution Act claims for Vessel of Opportunity participants and those who lost their jobs due to the Moratorium were not dismissed. The Court recognized that the standard for causation is not "proximate cause" but rather a significantly lowered standard.

Judge Barbier also mentioned in the opinion that the February 2012 trial will indeed go forward in February 2012.

All in all, this opinion will bring clarification to all parties as to what claims relating to the Gulf Oil Spill are viable. It also shows that the MDL Court, run by Judge Barbier, is adamant and conscientious about moving this case forward, making rulings in a timely, fair manner, and most importantly, that the February 2012 trial date is pretty much set in stone.

Goldberg Finnegan - Ph: (888) 213-8140.

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