As a federal judge considers a proposed settlement between BP and Gulf Coast residents harmed by the 2010 oil spill, a legal subplot has developed around workers who allege they were sickened by chemicals used to clean up the oil.
Nalco, which manufactured the dispersant Corexit, and some companies that applied it during the cleanup, have asked U.S. District Judge Carl Barbier of New Orleans to dismiss them from the tangle of litigation arising from the spill.
And that’s created a dilemma for plaintiffs considering whether to participate in a proposed multibillion-dollar settlement BP worked out with a steering committee representing claimants who suffered economic damage or health problems.
The proposed class action settlement would include compensation for past and future medical problems related to the spill. Plaintiffs must opt out of the settlement by Oct. 1 if they want to pursue legal action independent of the Plaintiffs’ Steering Committee.
Plaintiffs who believe they were harmed by Corexit and opt out of the settlement essentially are gambling that they can win higher damage awards through individual lawsuits against Nalco or the companies that used its dispersant.
“The only way a cleanup worker could bring a suit against Nalco would be to refuse the settlement and not be part of the settlement class,” said Robert Verchick, an environmental law professor at Loyola University who has followed the case. “If you do that, you would risk not getting what you are getting under the settlement.”
Nalco and the other dispersant defendants have asked Barbier to dismiss their cases with prejudice – meaning they could not face further spill- related lawsuits. Barbier plans to hear oral arguments from both sides on Friday.
The spill responders contend that the federal Clean Water Act provides them immunity from liability for actions taken at the government’s direction.
“Nalco provided Corexit at the express request of the federal on-site coordinators,” Nalco attorneys wrote in the dismissal motion filed in May. “Nalco supplied a product that was and had been listed on the federal government’s list of approved dispersants for decades and that the government repeatedly approved for use during the response.”
Nalco declined to comment further on the case.
Question of liability
The Plaintiffs’ Steering Committee argues that Nalco and the responders who used Corexit have some liability for any related health issues and should not be summarily freed from responsibility – either under the settlement or in independent litigation.
While the court-appointed steering committee’s proposed settlement with BP would cover plaintiffs injured from spill response activities, the committee is fighting Nalco’s motion, arguing that it represents the interests of all plaintiffs pursuing litigation related to BP, even those who opt out of the settlement.
“We believe that BP is 100 percent responsible, but when you look at the facts, it’s hard to say that some of those responder defendants did not contribute to the illnesses of the workers,” said Robin Greenwald, a Plaintiffs’ Steering Committee attorney who helped negotiate the medical side of the proposed settlement with BP. “They put the people out to work and they didn’t give them Tyvek gloves or they didn’t give them masks and the proper clothing to wear, or they didn’t notify them before the plane came by to spray Corexit.”
After BP’s Macondo well blew out on April 20, 2010, the company and its contractors used 1.8 million gallons of dispersants to break up oil on the surface and as it gushed from the wellhead a mile below, according to a report in May by the U.S. Government Accountability Office. The GAO called for additional research into the effectiveness of dispersants on and below the surface.
The Environmental Protection Agency has approved Corexit to disperse oil spills on surface water, but plaintiffs have argued it is dangerous and was used in an unreasonable manner. They also said that it has not been tested for use in deep-water situations.
Lawsuits naming Nalco as a defendant are among thousands that Barbier has bundled into a single massive case and scheduled for trial in three phases starting in January.
If he agrees to dismiss Nalco and the related defendants, plaintiffs with claims specific to Corexit will have to decide whether to appeal that decision to a higher court or sign on to the proposed class action settlement, still subject to Barbier’s approval and supervision.
“If I had clients suing Nalco, I would want them in Barbier’s court because I think Barbier will have a sense of the case that no one else would, and because he is a good judge,” Verchick said. “Second, I could get relief faster and I could probably have a better chance of a settlement because I would be in with other claimants and have that leverage that comes with numbers.”
Beaumont-based lawyer Brent Coon, who represents more than 10,000 spill plaintiffs, noted that the proposed medical settlement includes a program to monitor spill respondents’ health. That could be valuable in discovering future medical problems.
“We are recommending the medical settlement program for most of our clients, even though it leaves Nalco off the hook,” Coon said. “The reality is, most people exposed to these kinds of toxins don’t develop a disease for many years. For most plaintiffs that were exposed, it is premature to sue, and the medical monitoring program at least develops a mechanism to measure how they were impacted.”
But Louisiana-based lawyer Daniel Becnel says he is encouraging the 3,500 cleanup workers he represents to fight their cases in court.
“I have hundreds of people that are horribly sick,” Becnel said.
He said the settlement caps medical claims for cleanup workers at $60,000, which he considers potentially inadequate since their medical prognoses are uncertain.