Gulf oil spill judge poses questions on gross negligence issue

The federal judge who must decide whether BP and its partners were grossly negligent  in connection with the 2010 Gulf of Mexico oil spill is offering some clues as to how he will formulate his decision.

U.S. District Judge Carl Barbier issued an order Wednesday setting dates by which  lawyers for the companies must  file conclusions about the evidence presented during the first phase of a civil trial in New Orleans that ended earlier this month.

In the order, he asked the attorneys to answer seven questions dealing with the subject of gross negligence. If BP, Transocean or Halliburton are found to have been grossly  negligent, they could face billions of dollars in punitive damages.

Among Barbier’s questions:

Can an act or omission that is not itself causal of the accident nevertheless be considered in determining whether a party engaged in conduct constituting gross negligence?

In order to find gross negligence, is it sufficient if only employees on the rig are guilty of such conduct, or is it necessary to find that this level of conduct was attributable to shore-based or management-level employees?

Does the fact that a party acted in accordance with “industry standards” preclude a finding of gross negligence?

“These topics are offered merely to provide some guidance to the parties,” Barbier wrote.

Barbier’s questions could have implications for all three companies.

Halliburton, which provided the cement that was used to plug BP’s undersea well that blew out off the coast of Louisiana, has acknowledged not turning over cement samples that plaintiffs argue should have been available more than two years ago, and a worker admitted during the trial he was instructed to destroy records of cement testing that he did after the accident. Neither of those omissions could be construed as causing the accident, but they could be used to weaken Halliburton’s defense to the gross negligence claims.

Meanwhile, crew members aboard the Transocean-owned Deepwater Horizon rig that exploded after the well blew out were accused during the trial of making critical mistakes in the minutes before and after the explosion that exacerbated the situation. The captain, in particular, was described as not up to the job by a maritime expert who testified on behalf of BP.

And BP has defended many of its actions as being in accordance with industry standards, though various independent investigations and experts who testified at the trial have faulted the company for not complying with its own standards in addition to not complying with the government’s standards.

Barbier has not said when he will rule. He is giving the parties nearly three months to file their conclusions and proposed findings of fact, as well as replies to those briefs.

Eleven rig workers were killed in the explosion. The oil spill that resulted was the worst offshore oil spill in U.S. history.

Order for post-trial briefs