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The federal judge overseeing the multidistrict litigation over the Deepwater Horizon oil spill has refused to allow BP PLC to immediately appeal his ruling allowing a large number of plaintiffs to seek punitive damages. U.S. District Judge Carl Barbier in New Orleans on Oct. 21 denied BP’s request that he certify an interlocutory appeal of his Aug. 26 ruling allowing many of of the 100,000 individuals with economic and property damage claims to pursue punitive damages. BP argued that the U.S. Oil Pollution Act, which took effect in 1990 following the Exxon Valdez oil spill, displaced any claims filed under general maritime law, including for punitive damages. Stephen Herman, co-lead counsel for the plaintiffs and a partner at Herman Herman Katz & Cotlar, opposed BP’s motion, arguing that two U.S. Supreme Court decisions cited by Barbier made clear there was no court split on the issue. Neither Herman nor one of BP’s lead attorneys, Andrew Langan, a partner at Chicago’s Kirkland & Ellis, responded to requests for comment. Barbier has ruled on a number of motions involving an assortment of claims, grouped into “bundles,” that plaintiffs have asserted in the MDL. That proceeding totaled more than 536 cases as of Oct. 18, and additional thousands of plaintiffs have filed forms to join in the case without filing lawsuits. They seek damages or other relief associated with the Deepwater Horizon oil spill on April 20, 2010. The bundle at issue involved claims by private individuals and businesses, including commercial fishermen and hotels, for economic losses and property damages, and was by far the largest grouping. The lawsuits were brought under general maritime law, the Oil Pollution Act and various state laws for negligence, gross negligence, strict liability and additional claims. They seek compensatory and punitive damages. In his dismissal order, Barbier said individuals and businesses that hadn’t suffered physical injury or property damages must file their claims under the Oil Pollution Act when suing “responsible parties,” such as BP. But he added that the act was unclear about whether those same individuals and businesses also could file claims under general maritime law, which would allow them to pursue punitive damages. “OPA does not mention punitive damages; thus while punitive damages are not available under OPA, the Court does not read OPA’s silence as meaning that punitive damages are precluded under general maritime law,” Barbier wrote. “These Plaintiffs assert plausible claims for punitive damages against Responsible and non-Responsible parties.” In BP’s motion, attorney Don Haycraft, a shareholder at Liskow & Lewis in New Orleans, sought certification from Barbier to appeal that portion of his ruling. He wrote that the outcome conflicted with a 2000 ruling by the U.S. Court of Appeals for the 1st Circuit in South Port Marine LLC v. Gulf Oil Ltd. That court concluded that punitive damages are not available for litigants filing claims under OPA. “The Court, however, chose not to follow these precedents, concluding instead that, because OPA ‘does not mention punitive damages,’ it was not intended to displace maritime law on the topic of punitive damages,” he wrote. Such uncertainty, Haycraft added, made it difficult for BP to engage in settlement discussions. The state of Louisiana, while not agreeing with BP’s motion, supported interlocutory appeal of the issue to determine whether the act displaced state laws. The state seeks civil penalties against BP and additional defendants for environmental damages under Louisiana’s Oil Spill Prevention and Response Act and the Louisiana Environmental Quality Act. In an Oct. 19 motion, state Attorney General James “Buddy” Caldwell wrote that Barbier’s ruling, if not clarified, “has the potential to significantly impact the State of Louisiana’s rights in that it purports to dismiss all state law remedies customarily available to the State.” In opposing BP’s motion, Herman wrote that the circuits are not split, nor has the Supreme Court failed to address the issue. In fact, Barbier cited the Supreme Court’s 2008 decision in Exxon Shipping Co. v. Baker and its 2009 decision Atlantic Sounding Co. v. Townsend, both of which upheld punitive damages in similar cases, so “BP cannot fabricate a ‘substantial difference of opinion’ by looking to lower court rulings without conclusively showing that this Court’s interpretation was flat out wrong — something its motion fails to do,” he wrote. Contact Amanda Bronstad at [email protected].

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